Fabian v Attorney-General - [2013] NZHC 1606

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4576 [2013] NZHC 1606

BETWEEN TYRONE MAUNGA URAUTUNUI FABIAN
Plaintiff

ANDATTORNEY-GENERAL Defendant

Hearing: 10 June 2013

Appearances: T Fabian in Person
L McKay for Defendant

Judgment: 28 June 2013

RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 28 June 2013 at 3 pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date ..........................

FABIAN v ATTORNEY-GENERAL [2013] NZHC 1606 [28 June 2013]

[1] The Attorney-General, the defendant, seeks by way of interlocutory application, orders striking out the plaintiff’s statement of claim and dismissing this proceeding. He also seeks an order for costs.

Background and the parties’ position

[2] On 2 August 2012 the plaintiff, Mr Fabian, commenced this proceeding naming the New Zealand Government and the Attorney-General as first and second defendants respectively. He seeks a range of remedies in respect of 16 alleged causes of action.

[3] The first case management conference was held by telephone on 14

December 2013 before Associate Judge Abbott. As recorded by minute1 His Honour directed Mr Fabian to remedy defects in his statement of claim, noting that:

(a) It was impossible to identify a valid cause of action or any appropriate relief from the pleading and that there was a proper basis for striking out the claim.

(b) He accepted counsel for the Attorney’s contention that he was unable

to respond to the statement of claim as it was pleaded.

(c) Mr Fabian was to file an amended statement of claim showing recognised causes of action and complying with the requirements of the High Court Rules by 25 March 2013.

[4] Mr Fabian filed a third amended statement of claim on 26 March 2013. It is substantially the same as the original pleading. Consequently on 9 April 2013 the Attorney filed his application essentially citing as grounds that:

(a) The amended statement of claim contains the same defects as the original pleading in that it:

(i)fails to disclose any reasonably arguable or identifiable cause of action and cannot possibly succeed,

(ii)contains claims founded on Maori sovereignty arguments that are clearly untenable,

(iii)contains content that is unnecessarily prolix and likely to cause prejudice or delay, and claims that are unintelligible and cannot sensibly be understood or responded to.

(b) The amended statement of claim remains non-compliant with High

Court Rules 5.26, 5.27 and 5.31.2

[5] Mr Fabian has since filed two further amended statements of claim, the most recent (the fourth amended claim) on 8 April 2013. It is substantially the same as Mr Fabian’s previous statements of claim.

[6] Mr Fabian opposes the Attorney’s application. In essence he says:

2 The text of these rules materially states:

5.26 Statement of claim to show nature of claim

The statement of claim—

(a) must show the general nature of the plaintiff's claim to the relief sought; and
(b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fabian v Attorney-General

Details

AGLC: Fabian v Attorney-General [2013] NZHC 1606
Case: [2013] NZHC 1606
Decision Date: 28 June 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff Tyrone Maunga Urautunui Fabian filed a proceeding against the Attorney-General, seeking a range of remedies in respect of sixteen alleged causes of action. The defendant, the Attorney-General, sought to have the plaintiff's statement of claim struck out and the proceedings dismissed on the basis that it disclosed no reasonably arguable cause of action and was otherwise an abuse of the process of the court. The plaintiff opposed the application, asserting that the primary causes of action were clear and comprehensible in the relief they sought. The court considered the guiding principles concerning strike-out, which included that pleaded facts are assumed to be true and that the court's jurisdiction to strike out is one to be exercised sparingly. The court found that the plaintiff's claim should be struck out as it was impossible to identify any valid cause of action from the pleading, and that the statement of claim was unnecessarily prolix, contained irrelevant allegations, and was unintelligible. The court also found that the statement of claim failed to comply with the High Court Rules. The court concluded that the defects in the statement of claim were so fundamental that the court could have no confidence they would be remedied by a further opportunity to re-plead. The court made an order striking out the statement of claim and dismissing the proceeding. The court reserved the issue of costs, suggesting that if costs were pursued, they would be warranted on a Category 1 Band A basis given that the issues were so clear cut.

The final orders of the court were to strike out the fourth amended statement of claim and dismiss the proceeding. The court reserved the issue of costs, suggesting that if costs were pursued, they would be warranted on a Category 1 Band A basis given that the issues were so clear cut. The court also noted that the plaintiff's search for a remedy was being directed at the wrong forum and would be better targeted to the appropriate political forum.

Orders