Christensen v Attorney-General
[2020] NZHC 1872
•17 July 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-707
[2020] NZHC 1872
IN THE MATTER of a civil proceeding of squaring-off UNDER
the Crown Proceedings Act 1950, s 3(2)(3) and 6
UNDER
the New Zealand Bill or Rights Act 1990, ss 9 and 27(1) and the Health and Safety at Work Act 2015, ss 44(4)(d) and the Resource Management Act 1991, s 6(a)
BETWEEN
RUSSELL ZELANY CHRISTENSEN
Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Hearing: 17 July 2020 Appearances:
Plaintiff appeared in Person
E Jamieson and A Lawson for Defendant
Judgment:
17 July 2020
JUDGMENT OF GRICE J
(Strike out application)
[1] This is an application by the Crown to strike-out the proceedings in this matter. It is the second application to strike out which has been made. The statement of claim which has twice been amended is dated 23 March 2020.1
1 This decision was delivered orally on 17 July 2020. The written form has been edited and footnoted before distribution.
CHRISTENSEN v ATTORNEY-GENERAL [2020] NZHC 1872 [17 July 2020]
[2] Mr Christensen is passionately concerned about the future of humanity given the catastrophic likely effects of climate change. Mr Christensen has a theory about its causes based on what he refers to as “the Electricity School”. This is in opposition to the other theory which he refers to as “the Emission School”. The latter is the generally accepted theory behind climate change. Mr Christensen considers that it is his duty to try and promote his theory. He says the science behind the emission school theory is “poisoned science”. He seeks the platform of this Court in these proceedings to explore and prove that the Electricity School theory is the correct one.
[3] In his statement of claim Mr Christensen summarises the two schools. He notes they provide contrasting prescriptions. Mr Christensen then refers to the advent of the tidal turbines at Saint Malo, France in 1966 which marked, he says, a time before which no appreciable problem in climate had occurred. He goes on to say that the trends that have caused modern outcries have only appeared since the consequent unmitigated draw, by the tidal turbines, on the gravitational potential of roughly 200 megawatts.
[4] Mr Christensen brings his claim against the Attorney-General in public nuisance as well as in negligence. The remedies he seeks are in damages. He says he has been denied the opportunity to work in an ordinary fashion by the burden he has assumed on behalf of the community. That burden, he says, came about by his decision that he had a global emergency to attend to. So he quit his full time employment to concentrate on this matter.
[5] Mr Christensen seeks damages in the sum of $250,000. He indicates that these may be awarded on the condition that the money be gifted to a trust (or some alternative condition). He also seeks damages in relation to his own personal financial toll. He calculates this amounts to $161,516.34 over the years 2013 to 2020. Mr Christensen seeks the same damages under the public nuisance as under the negligence claim.
[6] The Crown has also filed an application for security for costs but that matter has not been progressed today. It is not necessary to deal with that given my decision on the application for strike out.
Application to strikeout
[7] The first application to strike out brought by the Attorney-General came before Clark J on 25 February 2020.2 Clark J then gave Mr Christensen some assistance by granting him some time and some direction as to what might be required for his pleadings to meet requirements of the High Court Rules 2016. She indicated that she had confirmation from Mr Christensen that he intended to replead. Clark J made the point that Mr Christensen was on notice of the defendant’s grounds for strike out. She indicated that it might count against Mr Christensen on any determination of a strike out application if, forewarned, he did not take the opportunity to replead.
[8] Mr Christensen did replead and subsequently filed two further amended statements of claim. Unfortunately, as will become evident the original defects pointed to by the Crown have not been remedied.
[9] The Crown indicates it does not engage with the merits of the application. Nevertheless, it provided an affidavit on the matter from Dr Andreas Reisinger, the Principal Scientist for Climate Change at the Ministry for the Environment who holds the appropriate qualifications in relation to that post. Dr Reisinger summarised the scientific consensus on the relationship between climate change and greenhouse gas emissions and New Zealand’s response to climate change. Dr Reisinger’s affidavit was filed as a response to the affidavit filed by Mr Christensen concerning his theory based on the Electricity School. The Crown indicated the reason for the filing of Dr Reisinger’s affidavit was primarily for the purpose of the application for security for costs.
[10]The defendant seeks that the proceedings be struck out on a number of grounds.
[11] Generally it says that the second amended statement of claim with claims in public nuisance and negligence contains a significant amount of irrelevant and/or and evidential material. In particular, it does not set out the necessary elements of either of the causes of action and provides few particulars. The Crown says to the extent the
2 Christensen v Attorney General HC Wellington CIV-2019-485-707, 25 February 2020.
legal claims are able to be inferred there are significant hurdles to them being “reasonably arguable”.
[12] The Crown’s submissions deal with the claim based on public nuisance and says that there is no basis for the claim as it is not clear what the public nuisance is. Secondly, Mr Christensen does not have the required standing to bring it. Thirdly there is no causation established between the public nuisance alleged and the damages he seeks.
[13] The Crown also says that the plaintiff needs to demonstrate that the defendant acted unlawfully or omitted to discharge a legal duty in subscribing to the greenhouse gases3 theory of climate change. This is a significant hurdle given the international and scientific support for this theory. The Crown points to the decisions in Smith v Fonterra4 and Thomson v Minister for Climate Change Issues5 in support of that submission as well as Dr Reisinger’s affidavit.
[14] In relation to the claim of negligence it points out that the elements of the tort of negligence have not been pleaded and, in any event, it is not reasonably arguable.
[15] The Crown also alleges that the proceedings as pleaded are likely to cause delay and are generally an abuse of process in terms of r 15.1(1)(b) and (d) of the High Court Rules.
[16] Mr Christensen in response in his written submissions and notice of opposition as well as in his oral submissions argues that there is a public nuisance. He expanded on his submissions orally in that regard. In particular he referred to the decision in Smith6 as well as other authorities. He made submissions as to how he would develop his case. Essentially he indicated that he would replead the case until the close of pleadings as he became more familiar with the legal process and his arguments developed. He suggested it might be possible to deal with the public nuisance claim
3 Mr Christensen refers to this theory as being in the Emissions School.
4 Smith v Fonterra Co-Operative Group Ltd [2020] NZHC 419 [Smith].
5 Thomson v Minister for Climate Change Issues [2017] NZHC 733.
6 Smith, above n 4.
first as a substantive issue separate from the damages issue which could be dealt with at a later date once the substantive claim had been established.
[17] Mr Christensen also responded to the submission that his statement of claim was not intelligible. He said that much of his pleading was in technical English which could be understood by the appropriate scientists but perhaps not by Crown counsel. He therefore said that it was not unintelligible but it was merely in technical English. He also indicated he would replead adding a general tort claim. Mr Christensen referred to the State Services Act 1988 and the Resource Management Act 1991 as being relevant.
The law relating to applications to strike out
[18] An application to strikeout is governed by well-established law. Rule 15.1 of the High Court Rules provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4)This rule does not affect the court’s inherent jurisdiction.
[19]The Crown’s application today is based on rr 15.1(a), (b) and (d).
First ground: whether there is a reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading (r 15.1(a))
[20] The following principles apply when determining whether to strike out a proceeding:7
(a)The facts pleaded in the statement of claim in a strike out application are assumed to be true even though they are not or may not be admitted. However, such an assumption does not extend to allegations that are pleaded where there is plain evidence that those allegations are not supportable such as being entirely speculative and/or without foundation.8
(b)The causes of action must be so clearly untenable that they cannot possibly succeed.9
(c)The jurisdiction is one which is exercised sparingly and only in a clear case where the Court is satisfied it has the requisite material.10
(d)The fact that applications to strikeout raise difficult questions of law and require extensive argument does not exclude the jurisdiction.11
(e)The Court should be particularly slow to strikeout a claim in any developing or confusing area of the law, particularly where a duty of care is alleged in a new situation.12
7 Robert Osborne and others McGechan on Procedure (looseleaf ed, Thomson Reuters) [McGechan on Procedure] at [HR15.1.02]; citing Attorney-General v Prince [1998] 1 NZLR 262 (CA) and Carter Holt Harvey v Minister of Education [2016] NZSC 95, [2017] 1 NZLR 78.
8 Attorney-General v McVeagh [1995] 1 NZLR 558 (CA); and Commissioner of Inland Revenue v Michael Hill Finance (NZ) Limited [2016] NZCA 276, [2016] 3 NZLR 303 [CIR v Michael Hill Finance].
9 Attorney-General v Prince, above n 7, at 264 citing Lucas (R) & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NALR 289 (CA) at 294-295; and Tākaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314 (CA) at 316-317.
10 Attorney-General v Prince, above n 7, at 264.
11 At 264.12 Couch v Attorney-General [2006] NZSC 66 at [33]; and CIR v Michael Hill Finance, above n 8, at [4].
[21] The commentary in McGechan on Procedure13 also sets out practical considerations. It says:
(a)the strikeout threshold is deliberately set high; and
(b)alleging defects and pleading pretrial may achieve nothing beyond an improvement in the opposing case by amendment.
[22] Nevertheless, in the current climate of proactive case management there is an expectation that a case or defence will be properly pleaded. Some extra latitude should be given for a litigant in person such as Mr Christensen.
Public nuisance
[23] The Crown refers to Attorney-General v PYA Quarries Ltd and the more recent decision of Smith.14
[24] In Smith, a claimant had filed proceedings in relation to a climate change claim against a number of companies that he alleged were causing greenhouse gases to be released into the atmosphere. Wylie J noted the statement of claim raised novel areas. Similarly the statement of claim in this case raises novel areas of the law.
[25] Wylie J said a person who commits a public nuisance does an act not warranted by law or omits to discharge a legal duty if the effect of the act or omission is to endanger the life, health, property, morals or comfort of the public or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.15
[26] The usual position is that claims for public nuisance are brought by the Attorney-General who always has standing. Private citizens only have standing if they
13 McGechan on Procedure, above n 7, at [HR15.1.02](3).
14 Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 (CA), accepted as authoritative in Nottingham City Council v Zain (a Minor) [2001] EWCA Civ 1248 at [8]; and Smith, above n 4, at [58].
15 Smith, above n 4, at [56]; citing Attorney-General v PYA, above n 14, at 184 per Romer LJ.
have suffered special damage over and above that suffered by other members of the public affected by nuisance.16
[27] This special damage must be particular, direct and substantial and not mere consequential injury.17 It must affect the individual directly following from the act, omission or obstruction.18 In addition, the special damage must be connected to the public harm that it is alleged that the public nuisance caused.19
[28] The Court of Appeal has noted that the right to bring a personal claim in public nuisance “forms an exception to the general rule, and the plaintiff must in every case prove such an injury as brings him reasonably within the exception”.20
[29] In this case I conclude it is not clear what the alleged public nuisance is. Generally, the basis for the claim seems to be an allegation that the government is wrong to follow the widely held theory of climate change based on greenhouse gas emissions or as Mr Christensen calls it, the Emission School theory. Mr Christensen however does not identify what public harm he alleges has been caused. He claims in general terms that the public interest has been compromised. In the pleadings there is no allegation that the New Zealand government has committed any unlawful acts or omitted to discharge any legal duties. In his oral submissions however he argued that the wrongful act is that the government has wrongly ascribed to the theory in the Emission School rather than his theory in the Electricity School.
[30] Mr Christensen indicates that he does not need to meet the elements of the tort of public nuisance as that tort merely requires identifiable harm or damage that can be traced to a cause. He referred to, in both his written and oral submission, to a 2002 legal textbook by Raymond Mulholland called “Introduction to the New Zealand Legal System”.21 Mr Christensen also indicated that he did not agree with the full
16 Stephen Todd, Cynthia Hawes, Ursula Cheer and Bill Atkin Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at 589; citing R v Rimmington [2005] UKHL 63, [2006] 1 AC 459. See also Coldicutt v Ffowcs-Williams HC Auckland AP130-SW00, 8 February 2001 at [14].
17 Benjamin v Storr (1874) LR 9 CP 400; R v Rimmington [2005] UKHL 63, [2006] 1 AC 459.
18 Mayor of Kaiapoi v Beswick (1869) 1 NZCA 192 at 207.
19 At 207; Smith, above n 4, at [61].
20 Mayor of Kaiapoi v Beswick, above n 18, at 208; cited with approval in Smith, above n 4, at [61].
21 Raymond Mulholland Introduction to the New Zealand Legal System (10th ed, Butterworths, Wellington, 2002). In his written submissions, Mr Christensen also referred to John Murphy The Law of Nuisance (Oxford University Press, Oxford, 2010).
formulation of public nuisance as set out in Smith but he agreed with the first part of the formulation which is:22
A public nuisance has been defined as any nuisance that is public which materially effects the reasonable comfort and convenience of life of life of a class of Her Majesty’s subjects.
[31] However, he disagreed with the narrowing, as he saw it, of that tort in Smith. He considered that this Court should depart from that narrower formulation and instead base its approach on a wide formulation. That is that a public nuisance is anything which materially effects the reasonable comfort and convenience of life, in this case, of the citizens of New Zealand.
[32] The Court will look for an arguable claim in pleadings particularly where the litigant is in person, as is the case here. However, as the High Court in Faloon23 noted:
[12] It is not for the Court or the defendant to painstakingly analyse an unintelligible pleading and by a process of logical progression demonstrate that the pleading is incoherent. If the document when subjected to an open- minded and careful consideration is confusing, uncertain in its meaning, ambiguous and unclear, it ought not to remain on the Court file. Such a document is the antithesis of what the rules require. A defendant ought not to be subjected to a pleading to which such a document is of central importance.
…
[33]The full definition of public nuisance described in Smith as follows:24
[57] The tort of public nuisance developed at common law. It originated as a criminal offence. In addition to redress by way of criminal prosecution, the Court of Chancery was prepared to issue an injunction at the suit of the Attorney General to restrain the commission of the nuisance complained of. The tort emerged when the common law courts recognised the right of a private citizen to bring a civil action for damages, or for an injunction, if he or she suffered “special damage” over and above that suffered by other members of the public affected by the nuisance
[58]A person commits a public nuisance who:
(a)does an act not warranted by law, or
(b)omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals or comfort of the public or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.
22 Smith, above n 4, at [56].
23 Faloon v Public Trust HC Auckland CIV-2010-470-52, 30 September 2010.
24 Smith, above n 4, at [57]-[58] (footnotes omitted).
[34] The Court in Smith went on to note that the Attorney-General had standing to sue for an injunction to restrain a public nuisance but an individual citizen could only bring an action if he or she suffered some special or particular damage over and above that suffered by the public generally. The Court went on to say:25
… It has been suggested by one commentator that the weight of authority supports a liberal view, and that the requirement of special damage is satisfied where a plaintiff suffers harm that is appreciably more serious and substantial in degree than that suffered by the public generally, even if it is of the same kind.
[61] The Courts have held that special damage is damage that is “particular, direct and substantial”. It must not be “a mere consequential injury”. The Court of Appeal in this country has put the special damage requirement as follows (in the context of the obstruction of a public way):
… the damage [must be] particular, direct and following upon the individual immediately from the obstruction.
[35]The Court also noted:26
It is not easy to deduce … a canon of interpretation by which to define a right of action for a public nuisance; but it must at all events be remembered that the right forms an exception to the general rule, and the plaintiff must in every case prove such an injury as brings him reasonably within the exception. The right of action cannot depend upon the quantum of damage …
[36] In that case the Judge found that the damage Mr Smith claimed was neither particular nor direct. He was a member of the public generally and also based his claim for damage on the fact that he owned land and on tikanga. The Court found that the pleaded harm in that case was consequential and not the direct result of the defendants’ activities.
[37] In this case similar comments apply. Mr Christensen has claimed that he has suffered special damages by virtue of the fact he has had to give up work to concentrate on progressing his campaign against climate change in particularly supporting his electricity school theory. That is not the type of damage which would be in the category of special damages required to be shown for a claim in public nuisance. At most the damages are consequential but even then it is Mr Christensen’s own actions
25 At [59].
26 Smith, above n 4, at [208].
which have directly led to his financial losses rather than anything related to any wrongful act by the government.
[38] As will be apparent from the above, I do not consider that any wrongful act has been established. Nor do I consider that Mr Christensen has established that he has suffered special damage such as to give him standing to bring the claim.
Negligence
[39] Mr Christensen, in his statement of claim, has made a bare assertion in relation to this head of claim. He claims the same damages as for public nuisance. He has not attempted to formulate the requirements of the tort of negligence. This requires the pleading of a duty of care, how the duty has been breached and any actionable damage that has thereby been caused. Mr Christensen’s pleading merely says that the tort of negligence is based on:
[a] burden that should have been taken on by the nation state through the auspices of the civil service has instead been left to rest on the shoulders of the plaintiff alone. The burden has been too great to permit the plaintiff an ordinary enjoyment of work and earnings from work.
[40]I do not consider that that indicates any tenable claim based on negligence.
[41] Initially the plaintiff had indicated he would pursue the claim also on grounds under the New Zealand Bill of Rights Act 1990.27 However, that is not now pursued. Therefore, I do not consider that any further.
[42] Therefore, as will be apparent I have reached the conclusion that the causes of action are clearly untenable and they cannot possibly succeed. The claims must be struck out.
Abuse of process grounds (r 15(1)(b) and (d)
[43] I now go on to address the further grounds put forward by the Crown based on r 15.1(b) and (d). The Crown argues that the claims are likely to cause prejudice or delay and is an abuse of the process of the Court.
27 New Zealand Bill of Rights Act 1990, ss 9 and 27(1).
[44] The requirements for a statement of claim are set out in rr 5.17, 5.26 and 5.27 of the High Court Rules. In summary:
(a)the pleading must be accurate, clear and intelligible;
(b)sufficient particulars must be given to enable the defendant to be fairly informed of the case to be met;
(c)the statement of claim cannot stray into setting out the evidence relied upon;
(d)separate causes of action must be separately stated;
(e)the pleading must set out all the elements of the cause of action; and
(f)the relief sought be clearly pleaded in respect of each cause of action.
[45] As I indicated earlier self-represented litigants are given a degree of latitude with respect to those requirements.28 However, latitude should not be given to allow an unfair advantage or require the Judge effectively to conduct the case on behalf of the litigant.
[46] The plaintiff’s second amended statement of claim offends against all of those requirements. It is prolix and almost incomprehensible. Even the intituling is puzzling. For instance, it refers to “In the matter of a civil proceeding of squaring- off”.
[47] In addition, as I have outlined above, the causes of action and the basis for them are not properly pleaded. Aspects of the causes of action are dispersed throughout the claim such as they are. Nor does the statement of claim separately plead the relief for each cause of action.
28 Stockman v New Zealand Association of Counsellors Inc [2019] NZHC 3047 at [14].
[48] The Court of Appeal in the Commissioner of Inland Revenue v Chesterfields Preschools Ltd29 elaborated on the requirements of a statement of claim.30 It said:31
If a statement of claim has been drafted in compliance with the above requirements, then both the court and the defendant parties should have a clear understanding of what is being alleged and against whom. However, verbose, ill-drafted pleadings may defeat the purpose of a statement of claim to such an extent that it is an abuse of process. …
[49] Mr Christensen has been given the opportunity to replead and even allowing latitude for the fact he is a self-represented litigant, there is nothing in the pleadings or his suggested amendments that indicate a basis for a tenable claim in this matter.
[50]Accordingly, the statement of claim is struck out on the grounds:
(a)there is no tenable claim pleaded or indicated;
(b)it breaches the requirements of r 15;
(c)it is an abuse of process; and
(d)it is likely to cause prejudice and delay to the defendant.
Climate change issues
[51] Finally, I note that Mr Christensen is genuine in his belief in his cause and that his theory based on the Electricity School must be promoted in order to save humanity. However, this Court is not the venue for promoting such a claim. It is ill-equipped to consider the types of issues that Mr Christensen is seeking that it engage in. I note, that in Smith, Wylie J referenced extra-judicial observations by Winkelmann CJ and Glazebrook and France JJ observing that there was an increasing recourse to the Courts
29 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53.
30 At [84].
31 At [87].
in the area of climate change but that claims relying on private law doctrines face difficulties.32 The Judges observed:33
…the courts are constrained by several things. The common law proceeds incrementally while climate change issues require a rapid response. Time is not costless. And just as fundamentally, cases will present with the kinds of issues which the Courts have typically regarded as non-justiciable. It may be therefore that demand for climate justice will be a demand the courts struggle satisfy.
Costs
[52] The Crown has three days to make its application and supporting submissions. Mr Christensen must then respond by 7 August 2020. In the meantime, if there is agreement between the parties as to costs the Court is to be advised.
Grice J
Solicitors:
Crown Law Office, Wellington for Defendant
32 Smith, above n 4, at [55]; citing Helen Winkelmann, Susan Glazebrook and Ellen France “Climate Change and the Law” (paper presented at the Asia Pacific Judicial Colloquium, Singapore, May 2019) [Climate Change and the Law].
33 Climate Change and the Law, above n 32, at [136].
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