Easton v Governor-General

[2012] NZHC 206

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-1753 [2012] NZHC 206

BETWEEN  BENJAMIN MORLAND EASTON Plaintiff

ANDGOVERNOR-GENERAL Defendant

CIV 2011-485-1840

AND UNDER                 the Judicature Amendment Act 1972

BETWEEN  BENJAMIN MORLAND EASTON Applicant

ANDATTORNEY-GENERAL & MINISTRY OF SOCIAL DEVELOPMENT

First Respondent

ANDWELLINGTON CITY COUNCIL Second Respondent

Hearing:         24 January 2012

Counsel:         Applicant in person

Ms Harris for the first respondent
Ms Russell for the second respondent
Mr Berkeley for Governor-General

Judgment:      20 February 2012

JUDGMENT OF MALLON J

Contents

Introduction ....................................................................................................................................... [1] Strike out application ........................................................................................................................ [3] Security for costs ............................................................................................................................. [35]

Result ................................................................................................................................................ [44]

EASTON V GOVERNOR-GENERAL HC WN CIV 2011-485-1753 [20 February 2012]

Introduction

[1]      Mr Easton has commenced a number of court proceedings in recent years. From about 2001 he was involved in Family Court proceedings in which he feels he was wrongly treated.  Mr Easton has, as he puts it, been battling against family law since then.  He has been unemployed for some time while immersed in this battle, but is presently not receiving the unemployment benefit.  His tenancy of a Council property has been terminated and, in recent months, he was one of a number occupying Council property as part of a protest in this country and elsewhere.  The present proceedings relate to his battle in relation to family law, the decision not to pay him the unemployment benefit, the termination of his tenancy, and another long- standing grievance he has about the Council‟s decision to close a pedestrian mall in Wellington to make way for a new bus route.

[2]      The Governor-General applies to strike out the claim against him on the grounds that:  it does not disclose any reasonably arguable cause of action; and is unintelligible, such that it is likely to cause prejudice and delay, or is an abuse of the Court‟s process.  The Governor-General and the Council also apply for security for costs on the ground that there is reason to believe that Mr Easton will be unable to pay their costs if he is unsuccessful in the proceedings.  The Attorney-General has not made any similar application, opting instead for an early fixture for the substantive hearing of the claim against him/the Ministry of Social Development.

Strike out application

The claim

[3]      The statement of claim is as follows:

Take notice

1.This application seeks judicial review on sovereignty seeking relief that the peace of the Queen be respected and restored.

General

2.In 2003 and 2004, through various means the applicant approached the Attorney  General  and  the  Governor  General  about  the  faulted

introduction  of the  Care of  Children  Bill  2003.   Additionally this matter was brought before Judge Walker of the District Court and the Court of Appeal – in the period prior to the giving of the Royal assent to the bill.

3.In 2005 the applicant brought the information to the Governor General again seeking the Royal Prerogative of Mercy on a related criminal matter, but this application was intercepted and declined by the Minister of Justice as in Executive Council.

a.      The applicant questions this exercise of the Executive Council authority as under the English Bill of Rights, every subject has the right to petition their King (or Queen).  In this instance the appeal was centred against the authority of the Sovereign in Right to abrogate the construct of fatherhood.

4.      Statement of Claim

Governor General

a.      The New Zealand laws effecting constitution were rendered nugatory in 2004 for the applicant‟s prayer to the Governor General who could not exercise assent to the Care of Children Bill 2003, as it was known for its failed introduction under lawful manner and form requirements.

b.      The Minister of Justice did not have the just authority or jurisdiction to sign off on the applicant‟s appeal for the exercise of the Royal Prerogative of Mercy.

Relief

Governor General

a.      That the Court suspend time for hearing the application to the period of transfer between old to new Governor General of the powers of Royal Prerogative and revisit the assent of the Care of Children Bill; and

i.       collectively return these constitutional matters back to the new office of the incoming Governor General, yielding such required reasoning to the authority in Absolute of Her Majesty the Queen, in Her Person as sole Defender of the (Anglican) Faith.

[4]      Although aspects of the claim are not easy to follow, and for that reason could be struck out as likely to cause prejudice or delay, I have borne in mind that Mr Easton is a lay litigant and has limited access to resources.   I have, therefore, sought to understand from Mr Easton the precise nature of his claim and to consider whether it discloses a reasonably arguable cause of action.  Affidavit evidence has been filed on behalf of the Governor-General in support of its application.  I have

considered this evidence because it covers matters of factual background of a non-

contentious nature and it assists with seeking to understand Mr Easton‟s pleading.1

[5]      Mr Easton‟s claim against the Governor-General is part of his long-standing concerns about family law in this country.   Those concerns arose against the background of his marriage ending in 1999.   In 2001 his former wife obtained a protection order following a dispute about custody arrangements for the children. He took particular exception to this because he had never been physically violent to his wife or children.  Some of Mr Easton‟s previous Court proceedings (including his conviction) relate to this.

[6]      On the first reading of the Care of Children Bill on 1 July 2003, Mr Easton stood up in the gallery of Parliament to raise his concerns about family law.  He was trespassed  from  Parliament  as  a  result  of his  actions.    He advises  that  he also contacted the Governor-General to inform her that the Bill should not be given assent.  He has also written to Ministers on a number of occasions raising queries and concerns.

[7]      As I understand it, the claim against the Governor-General raises two issues. One is the manner and form of the introduction of the Care of Children Bill (which became  the  Care  of  Children Act  2004).    I  understand  from  Mr  Easton‟s oral submissions that this is the main part of his claim.   The second issue concerns whether Mr Easton‟s application for the exercise of the Royal Prerogative of Mercy in respect of a criminal conviction was dealt with correctly.  I consider each of these issues in turn.

The Introduction of the Care of Children Bill

[8]      Although it does not say so explicitly, as explained by Mr Easton in oral submissions and reinforced in his email to the registry sent the day after the hearing before me, the first part of the claim concerns the timing of the Attorney-General‟s report on the Care of Children Bill under s 7 of the New Zealand Bill of Rights Act

1990 (the “NZBORA”).

1      Attorney-General v McVeagh [1995] 1 NZLR 558 at 566.

[9]      Section 7 provides:

7.        Attorney-General  to  report  to  Parliament  where  Bill appears to be inconsistent with Bill of Rights

Where any Bill is introduced into the House of Representatives, the

Attorney-General shall, -

(a)       In the case of a Government Bill, on the introduction of that

Bill; or

(b)      In   any   other   case,   as   soon   as   practicable   after   the introduction of the Bill, -

Bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

[10]     The Care of Children Bill was a Government Bill.  This meant that any report on the Bill from the Attorney-General under s 7 was to be made “on the introduction of that Bill”.  A letter to Mr Easton dated 26 January 2004 from the then Attorney- General, which responded to Mr Easton‟s claim that there had been no report made under s 7, advised that the report “had been tabled on 11 June 2003 being the day after the introduction of the Bill.”  Mr Easton challenges the passage of the Care of Children Bill on the basis that the Attorney-General‟s report was made the day after the Bill was introduced, rather than on the day it was introduced.

[11]     The Attorney-General‟s report on the Bill advised that a clause of the Bill, providing that guardianship of a child continue until that child reached the age of 18 years, appeared to be inconsistent with the right to be free from discrimination on the grounds of age2  and did not appear to be a justified limitation on that right.3    That provision remained in the Care of Children Act as enacted.4   On the material before me there is no indication that this provision has had any particular impact on Mr

Easton.  Rather Mr Easton brings his challenge as a matter of principle.

[12]     Mr Easton says that it is clear that the Attorney-General broke the rule of law in relation to the Care of Children Bill.  He says that the purpose of the NZBORA is

to protect the public of New Zealand by ensuring that there is quality governance.

2      Section 19(1) of the New Zealand Bill of Rights Act 1990 (the “NZBORA”).

3      Section 5 of the NZBORA.

4      Section 28(1)(a) of the Care of Children Act 2004.

He says that it was important that the report be tabled on the same day as the Bill was introduced because that is what s 7 requires, and the public are entitled to expect efficiency and excellence from the Government when enacting legislation which concerns children.   He says that a constitutional crisis arose when the Governor- General assented to the legislation knowing that the Attorney-General‟s report was submitted the day after the introduction of the Bill,  He says that, as a result, he “is loyal only to Her Majesty the Queen”.

[13]     Because  of  the  way  the  statement  of  claim  is  framed,  counsel  for  the Governor-General did not focus on the issue of whether s 7 had been complied with. Relying on Boscawen v Attorney-General,5 it was submitted that the tabling of a s 7 report was no bar to the introduction of a Bill, or to its enactment.  That is a correct statement of principle.   However it does  not  answer whether judicial  review is available in respect of the process of tabling the report (and in particular the time at

which it is tabled).

[14]     Boscawen concerned a challenge to the failure of the Attorney-General to make a s 7 report in respect of the Electoral Finance Bill 2007.   In that case the Attorney-General had formed a legal view, which was consistent with the expert advice provided to him, that a report was not required.  The Court held that, in those circumstances,  it  would  be  contrary  to  the  comity  principle  for  the  Court  to intervene.   The applicant‟s claim for a declaration that the Attorney-General had breached s 7 was struck out.

[15]     The  Court  of  Appeal  in  Boscawen  declined  to  consider  a  hypothetical situation which was posed, where an Attorney-General refused to make a s 7 report even though the legislation clearly breached the NZBORA and despite advice of breach and in plain dereliction of duty.   The Court commented that this example raised “issues of process” whereas the case before it was concerned with a difference of view about a legal assessment made by the Attorney-General.6   So, while judicial

review  of  the  legal  assessment  made  by  the Attorney-General  is  not  available,

5      Boscawen v Attorney-General [2009] 2 NZLR 229.

6 At [40].

Boscawen did not rule out the availability of review in respect of the process of a s 7 report.

[16]     Whether the legislative process is reviewable was considered by the High Court in Westco Lagan Ltd v Attorney-General.7    There the Judge said he had “no doubt this Court has jurisdiction to determine whether there has been compliance with any mandatory „manner and form‟ requirements imposed by statute law for the enactment of legislation by Parliament.”8    The Judge saw this as relating to legal requirements as to process rather than to content.9    The Judge considered that the

Court “would have power to grant appropriate relief”10 and could intervene at “some

suitable point.”11    However the Court could not strike down legislation once made

(subject to possible extreme situations).12

[17]     For the purposes of the strike out application I proceed on the basis that a failure to provide the report “on the introduction” of the Bill, as required by s 7, can be judicially reviewed.   That then raises the issue of what “on the introduction” means.  I did not receive any submissions on behalf of the Governor-General about this.  Mr Easton submits that it is obvious that the report in this case was late.  He contrasts the time for filing a report on a Government Bill with a report on a non-

Government Bill.13    He submits that this contrast shows that it was intended that

there be strict compliance with the “on the introduction of the Bill” requirement.

[18]     The meaning of legislation is to be ascertained from its text and in light of its purpose.  I have reviewed the Standing Orders to see whether they provide relevant context in which to determine the meaning of “introduction” in light of the purpose of s 7.  Interestingly, when the NZBORA was enacted the procedure for introducing a Bill (when the 1986 Standing Orders applied) differed from the procedure at the time the Care of Children Bill was introduced (when the 1999 Standing Orders

applied).

7      Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40.

8 At [91].

9 At [91].

10 At [91].

11 At [93].

12 At [63].

13     See s 7(1)(b) of the NZBORA.

[19]    Under the 1986 Standing Orders, a Government Bill was “initiated” by presenting the Bill to the House.14   The Clerk laid copies of the Bill upon the Table for the information of members only “until the Minister moves to introduce the bill”.15   The debate “on the question that a bill be introduced” was not to exceed two hours.16   “When a bill has been introduced” it was read for the first time17 and then referred to a select committee.18

[20]     Under the 1999 Standing Orders a “Government Bill is introduced by the Leader of the House informing the Clerk on any working day, or by 1 pm on any sitting  day,  of  the  Government‟s intention  to  introduce  the  bill”.19      “After  its introduction, a bill is set down for first reading” on the third sitting day following. A motion is then moved that the bill be read for a first time.20   After its first reading, the bill is referred to a select committee.21

[21]     Therefore, at the time the NZBORA was enacted, the Attorney-General‟s report under s 7 was to be made at the time of the debate on the introduction of the Bill.  By the time of the Care of Children Bill, however, a Bill was introduced by notice to the Clerk and there was a period of days between the introduction of the Bill and the first reading.  This is potentially relevant to the interpretation to be given to “on the introduction” in s 7 of the NZBORA.  However, I do not take this point any further in the absence of submissions on the topic.

[22]     Proceeding, for the purposes of the strike out application, on the basis that the s 7 report was provided a day late, the next question is whether that would entitle Mr Easton to the relief he seeks.   On this issue, counsel for the Governor-General submitted (after the hearing) that it was not material that the report was made the day after the Care of Children Bill was introduced.  Counsel referred to Standing Order

260(1),  from  the  1999  Standing  Orders,  and  submitted  that  there  had  been

compliance  with  that  Order.    That  provided  that  the Attorney-General‟s report

14     Standing Orders of the House of Representatives 1986, SO 204.

15     SO 205.

16     SO 206.

17     SO 207.

18     SO 208.

19     Standing Orders of the House of Representatives 1999, SO 268.

20     SO 278.

21     SO 280.

(referred to as a “paper” in the Standing Order) was to be provided “before a motion for the bill‟s second reading is moved”.  Relying on this, counsel for the Governor- General noted that the Attorney-General‟s report in this case was tabled on 11 June

2003 and the second reading did not take place until 2 November 2004.

[23]     This submission did not, however, refer to a Sessional Order of 5 September

2002, as a result of which (and because of s 7 of the NZBORA) the Standing Order

260 was to be read as if it required the report prior to the first reading.  Nevertheless, the substance of the point made by counsel is still correct.   Here, the Attorney- General‟s report was given prior to the first reading and it, therefore, complied with the relevant Standing Order at the time.  Mr Easton responded by, in essence, relying on the supremacy of s 7 of the NZBORA over the Standing Order.

[24]     However, even if the report under s 7 was made late, if it was provided in advance of or by the time of the first reading (in compliance with the Standing Order) that must be relevant to whether any relief on a judicial review application is appropriate.  That is because a report under s 7 alerts the House, at an early stage,

that a proposed bill is inconsistent with the NZBORA.22   That can then be one of the

issues debated by the House and considered by the select committee.  This purpose may still be met where the report is provided late but in sufficient time to alert the House to any issues before the Bill is referred to a select committee.

[25]     In this case the Attorney-General‟s report was provided on 11 June 2003, one day after the Clerk was informed of the Government‟s intention to introduce the Care of Children Bill.   The first reading was on 1 July 2003.   The House still had a number of days to consider the report before it was read for the first time.  In the knowledge of that report, the Bill had its second reading on 2 November 2004 and its third reading on 9 November 2004.   Therefore it cannot be said that there was insufficient time to consider the NZBORA issue identified in the Attorney-General‟s

report.   Parliament was free to proceed with the legislation notwithstanding that

22     Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (LexisNexis

NZ Ltd, Wellington, 2005) at [8.4].

issue.23   It, therefore, cannot be of any consequence that the report was a day late (if it was) such as to warrant any relief in this case.

[26]     Even less so, can there be any prospect of Mr Easton obtaining the relief he seeks.  Most of the prayer for relief is difficult to follow.  On that basis alone, it is not relief that this Court would order.24     Further, to the extent that Mr Easton is seeking that the assent of the Care of Children Bill be revisited, that would not be ordered either.  The granting of the royal assent is one of the Crown‟s prerogatives. Even if it were reviewable (see discussion in the next section) there is no prospect of this Court requiring the Governor-General to revisit the assent.   To “revisit the assent” would be akin to striking down the legislation in the period between the

Court‟s order and the Governor-General‟s (further) assent.  Further, according to Mr Easton, he had already alerted the Governor-General to his concerns about the Bill. The Governor-General nevertheless gave the assent.

[27]     In  short,  there  is  no  conceivable  basis  on  which  the  legislation  as  now enacted could be invalidated if the Attorney-General‟s  report was tabled one day after the bill was introduced.  There is therefore no conceivable basis on which this part of Mr Easton‟s claim could succeed.

Royal Prerogative of Mercy

[28]     Affidavit  evidence  has  been  filed  on  behalf  of  the  Governor-General  in relation to Mr Easton‟s application for the exercise of the Prerogative of Mercy. That evidence provides the following information.   Mr Easton was convicted for breaching  a  direction  made  that  he  attend  a  programme  called  “Living  with Violence”, the first session of which was to commence on 6 April 2001.   That direction was made in connection with the protection order made by the Family Court on the application of Mr Easton‟s former wife.  Mr Easton did not attend the first session and advised that he would be attending no such programme.  Mr Easton

was charged with failing, without reasonable excuse, to comply with the direction.

23     Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney The New Zealand Bill of

Rights (Oxford University Press, Melbourne, 2003) at 195.

24     Mr Easton previously has been given the opportunity to amend the relief he seeks: refer my

Minute dated 17 October 2011.

Following a defended hearing, he was convicted and discharged.  Mr Easton‟s appeal against conviction was dismissed by the High Court and he was refused leave to appeal to the Court of Appeal, by the High Court and the Court of Appeal.

[29]     Mr Easton‟s application  to  the  Governor-General  for  the  exercise  of  the Prerogative of Mercy was made in 2004.   By letter dated 6 September 2004 Mr Easton was advised of the process that would be followed.  This advice included that the Ministry of Justice would provide a report to the Minister of Justice, who in turn would advise the Governor-General.   It advised that, once the advice had been considered by the Governor-General, Mr Easton would be informed of the decision by the Official Secretary.

[30]     The affidavit evidence before me includes copies of the Ministry of Justice‟s report to the Minister of Justice, the Minister‟s advice to the Governor-General in light of that report, and the letter to Mr Easton from the Official Secretary to the Governor-General dated 26 July 2005.  That letter referred to the Minister‟s advice and said “Her Excellency has accepted this advice and has therefore declined your application.”

[31]   The claim as presently framed is an application under the Judicature Amendment Act 1972.  In Burt v Governor-General,25 the Court of Appeal held that the exercise of the Royal Prerogative of Mercy could not succeed as an application under the Judicature Amendment Act because the Governor-General‟s  decision on the application is not the exercise of, or the refusal to exercise, a statutory power. The Court of Appeal went on to say that the mere fact that a decision was made

under the prerogative did not exempt it from review in the Courts.  The question was whether the subject matter was justiciable.26

[32]     However, even if the decision on Mr Easton‟s application is justiciable and his claim was reframed properly, his claim on this issue suffers further fatal difficulties.  As is set out in Burt, the Royal Prerogative of Mercy is delegated to the

Governor-General by clause XI of the Letters Patent Constituting the Office of

25     Burt v Governor-General [1992] 3 NZLR 672.

26     At 678 and 681.

Governor-General of New Zealand 1983.   Since 1983, by convention or common law, and formerly by Royal Instructions, “it is exercised on ministerial advice, an appropriate Minister being the Minister of Justice”.27   That was the process followed in this case.

[33]     To  the  extent  that  Mr  Easton  is  concerned  with  his  application  being considered by the Governor-General, instead of Her Majesty the Queen, it cannot succeed because the Governor-General has been delegated this power.  To the extent Mr  Easton  is  concerned  with  the  Minister  of  Justice  providing  advice  to  the Governor-General, it cannot succeed because that is a proper process by convention and common law.  To the extent that Mr Easton contends that the decision was made by the  Minister of Justice,  rather than the Governor-General,  it  cannot  succeed because that was not what occurred.

Conclusion

[34]     Accordingly, because the claim discloses no reasonable cause of action,28 it is struck out.

Security for costs

[35]     Because  the  claim  against  the  Governor-General  is  struck  out,  it  is  not necessary to consider the application for security for costs in  that claim.   It  is necessary to consider the Council‟s application for security for costs in the claim against it.  As referred to above, the application is made on the basis that there is reason to believe that Mr Easton will be unable to pay the Council‟s costs if he is unsuccessful in the proceeding.  This is not contested by Mr Easton.  Therefore, the issues are whether it is just to order that security for costs be given and, if it is, the

amount of security to be given.29

27     At 674.

28     Rule 15.1(1)(a) of the High Court Rules.

29     Rule 5.45 of the High Court Rules.

Prospects of claim

[36]     The Council submits that it is just to require Mr Easton to give security for costs because Mr Easton‟s claim has no chance of succeeding.  Mr Easton does not accept that.

[37]     The claim against the Council is in these terms:

...

Facts of claim establishing grounds for relief

2.The plaintiff has questioned the exercise of political faith and such subsequent activity for over ten years, identifying cause and resulting unlawful consequences under such authority, claimed  here  in  review  to  have  extensively  damaged  the public sector and disaffected Her Majesty‟s subjects; and

a.      both  respondents  will  be  said  to  have  exceeded  the authority of their elected and corresponding power, so impeding   and   obstructing   the   Queen‟s  peace   and justice.

3.     The plaintiff has been directly and severely disaffected by

both of the respondents‟ actions and omissions; and

a.      now has no income, claiming state welfare was unjustly terminated by the Ministry of Social Development in a reprising consequence against his lawful exercise in political and civil liberty; and

b.      was debarred from his residence through a Court order sought and granted on behalf of the Wellington City Council including the destruction of all possessions and personal effects such as extensive journal keeping and significant evidence relevant to the proceedings under review.

c.      Through the absence of a rightful and fair income and as forced homeless the plaintiff has since and more commonly  been  sleeping  in  protest  on  the Anglican Cathedral porch of Saint Paul on Molesworth Street, Wellington.

4.Judicially  or  otherwise  held  as  justly  indebted  to  both respondents   the   plaintiff   was   physically   alienated   in   a powerful contempt of the significance of claims: Such replies collaterally targeted to neuter the plaintiff‟s dissent against affecting jurisdictions or acting proprieties within the Crown in Right and additionally later, lawfulness of local government practice.

5.     Statement of claim

...

Wellington City Council

b.      Wellington  City  Council  defaulted  on  the  public‟s interest in an abrogation of statute, Council‟s Code of Conduct and the Wellington International Airport Company constitution by omitting to prevent the then Mayor from moving a proposed and heavily biased commercial enterprise (including restoring the Golden Mile) of the Nguaranga Gorge to Wellington Airport corridor   plan,  where  holding  a  private,  pecuniary interest protecting a commercially sensitive and high value decision; and

i.       public consultation on the most viable and likely alternative   (Wakefield   /   Mercer   /   Manners Streets) to the Golden Mile route was deliberately omitted and unlawfully withheld.

The   decision   to   legally   resist   the    applicant’s

challenge

ii.      Knowing that the applicant had constructive and valuable information on the design errors and the above legal improprieties of the proposed Golden Mile renovation, the second respondent acted in abuse of its authority and responsibility, successfully pursuing legal remedies at an unwarranted and unnecessary cost, extinguishing dissent.

The decision to enter the applicant’s flat

iii.     The second respondent as the plaintiff‟s landlord acted without justifying their questioned jurisdiction and ignored warnings not to enter the residence when properly barred from entry through  signs,  including  the  appropriate protective text from the Magna Carta; and a portrait of Her Majesty the Queen so prohibiting any conversion of the premises.

6.     Relief

...

Wellington City Council

b.      That all judicial orders relating to the termination of the plaintiff‟s Wellington City Council residency be quashed; and

i.       the plaintiff be reinstated on the tenancy waiting list.

Interim and interlocutory relief sought

ii.      A stay of proceedings is sought in the civil matter of tenancy reference TTT-2010085-001449 pending the Court‟s decision.

[38]     Even allowing for Mr Easton‟s difficulties as a lay litigant and his lack of resources, the claim is difficult to follow.  Insofar as I can follow it, as it relates to the Council, it alleges  that the Council  exceeded its authority and this affected Mr Easton because he lost his residence (and belongings) and is now homeless.  He alleges that the Council exceeded its authority during the approval process for a new transport route.  He also says that the Council exceeded its authority when it entered his flat.   The relief claimed against the Council relates only to the termination of Mr Easton‟s tenancy of a Council flat.

[39]     The  Council  submits  that  this  is  Mr Easton‟s third  attempt  to  judicially review the Council‟s decision in relation to the transport route (referred to as “the Golden Mile”).  Affidavit evidence providing details of the previous judicial review applications  and  an  Environment  Court  proceeding on  the same topic  has  been provided by the Council.  Mr Easton has not refuted this.  I understand Mr Easton to be raising his concerns again because he sees the Council‟s actions as an example of unjust practices of central and local government.  However, because he has already brought judicial review proceedings about the Council‟s decision, no relief has been claimed relating to that decision, and Mr Easton has not identified how that decision relates to the termination of his tenancy, this aspect of the claim against Council has no prospect of success.

[40]     Insofar as the claim concerns the entry into Mr Easton‟s flat, the information before me is that the tenancy was terminated for non-payment of rent pursuant to a Tenancy Tribunal decision.  Mr Easton appealed that decision to the District Court but his  appeal  was  dismissed.   A further application  was  made to  the Tenancy Tribunal by the Council in relation to Mr Easton‟s abandoned belongings at the flat. The Tribunal ordered that Mr Easton‟s belongings be held for two weeks, and if they were not collected in that time, they were to be offered to charity.  If they were not

accepted, the Tribunal ordered that they were to be disposed of at the tip.  Mr Easton did not appeal this decision.  Mr Easton has not identified (either in his pleading or orally) how, in those circumstances, the Council‟s actions in entering his flat were unlawful.  Any warning not to enter could not invalidate the Tribunal orders and Mr Easton has not said how the Magna Carta or a portrait of Her Majesty the Queen made the entry unlawful.  As with the transport route aspect of the claim, this aspect of Mr Easton‟s claim is without prospect of success.

[41]     Affidavit evidence from the Council advises that it has spent in excess of

$350,000 of ratepayer‟s money in legal and expert fees on the Golden Mile proceedings instigated by Mr Easton.   There are also outstanding cost orders in relation to those proceedings and the Tenancy Tribunal proceedings.  It is not just to allow Mr Easton to continue with the present proceedings when they do not have any prospect of success, without requiring Mr Easton to give security for costs.

Amount of security

[42]     The Council sought security in the sum of $20,000, to be paid within 20 days, failing which the proceeding should be struck out.   Counsel advised that this sum was  not  set  with  reference  to  the  costs‟ schedule  in  the  High  Court  Rules  but reflected the history of the Council having incurred substantial costs in defending Mr Easton‟s claims.  Mr Easton did not wish to address the Court on the amount that might be ordered if I reached the view that security should be ordered.

[43]     If this claim were to proceed to trial it would not be complex and hearing time would likely be less than a day.  Taking into account costs that might be ordered in accordance with the schedule if Mr Easton‟s claim proceeded to hearing and was unsuccessful, I consider that security should be set in the sum of $5,000.  If that sum is paid, and the Council becomes concerned in the course of the proceeding that it is insufficient, an application for further security might be made.

Result

[44]      The proceeding against the Governor-General is struck out on the basis that it discloses no reasonably arguable cause of action.   Security for costs is ordered against Mr Easton in the sum of $5,000 in respect of Mr Easton‟s proceeding against the Council.  Mr Easton‟s proceeding against the Council is stayed until that sum has been paid into court, or security for that sum has been given to the satisfaction of the Registrar.   For the avoidance of doubt, the stay does not apply to the claim against the Attorney-General/Ministry of Social Development which I have earlier ordered is

to be tried separately.30

Mallon J

30     Refer Minute dated 1 November 2011.