Fehling v Attorney-General - [2016] NZHC 2911

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2016-418-020 [2016] NZHC 2911

BETWEEN
FRIEDRICH JOACHIM FEHLING

Plaintiff

AND

ATTORNEY-GENERAL Defendant

Hearing: (On the papers)

Appearances:

Plaintiff in person
H McKenzie for Defendant

Judgment:

2 December 2016

JUDGMENT OF DUNNINGHAM J

[1] Mr Fehling has filed a statement of claim which raises what he describes as “constitutional questions of law” and matters of public interest. However, it is best understood by focusing on his request for relief, which is the “nullifying of anti- democratic s 24 Local Electoral Act 2001”.

[2] The defendant,1 has filed an interlocutory application for an order striking out the proceedings and for costs. The basis of the application to strike out is twofold:

(a) the statement of claim does not disclose any reasonably arguable cause of action against the defendant; and

1 Described by Mr Fehling as “R (also called Regina (Rex), Queen (King), the Crown, (Elizabeth Windsor) [and her representatives], the Governor-General”, but which in accordance with convention when the Crown is sued, and as directed by a Minute of O’Regan J in the Supreme Court dated 3 October 2016, has been amended on the Court file to the Attorney-General.

FEHLING v ATTORNEY-GENERAL [2016] NZHC 2911 [2 December 2016]

(b)the statement of claim contains unintelligible pleadings to such an extent that it is likely to cause prejudice and delay and/or otherwise be an abuse of the process of the Court.

[3] The issue for me to determine is whether either, or both, of those tests for striking out are met in this case.

Procedural history

[4] To provide some context to the present application, and to explain why it is being dealt with on the papers, the following is a brief summary of the procedural history.

[5] The statement of claim was filed along with an interlocutory application for an injunction in June 2016. Eventually, despite some resistance from the plaintiff, service was effected on the Crown Solicitor at Christchurch as directed. The defendant then filed a notice of opposition to the interlocutory application for an injunction and an application to strike out the claim which included a request for a direction that it need not file a statement of defence until the strike out application was determined.

[6] The minutiae of the procedural steps which then ensued are set out in the judgment of Nation J which issued on 30 August 2016.2 In that decision he dismissed Mr Fehling’s application for an injunction “to stop local elections using the disputed S.24 Local Electoral Act”. He also directed the application to strike out Mr Fehling’s statement of claim to be set down for a half day hearing and made timetabling directions for the filing of further submissions. Finally, Nation J recorded that he considered certain statements made by Mr Fehling in his documents were offensive and that he had made baseless allegations of corruption which were
offensive and scandalous. He directed Mr Fehling not to file any further documents containing offensive language and baseless…

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 Fehling v Attorney-General

Details

AGLC: Fehling v Attorney-General [2016] NZHC 2911
Case: [2016] NZHC 2911
Decision Date: 2 December 2016

CaseChat Overview and Summary

Friedrich Joachim Fehling filed a claim against the Attorney-General seeking to nullify Section 24 of the Local Electoral Act 2001. The defendant applied to strike out the statement of claim, arguing it did not disclose a reasonably arguable cause of action and contained unintelligible pleadings that would cause prejudice and delay. The High Court was required to determine whether either, or both, grounds for striking out the claim were met. The Court found that Mr Fehling's claim did not disclose a reasonably arguable cause of action as there was no legal basis for striking down the legislative provision. Furthermore, the pleadings were significantly defective, containing lengthy and convoluted questions and submissions, irrelevant material, and offensive or scandalous content. As such, the Court held that the defendant's application to strike out was made out and awarded costs in favour of the defendant.

The Court struck out Mr Fehling's statement of claim and awarded costs to the defendant. The Court found that the claim did not disclose a reasonably arguable cause of action and that the pleadings were significantly defective. The Court noted that even if the claim had disclosed a cause of action, the pleadings would still have been an abuse of process due to their unintelligible and prolix nature. As a result, the Court granted the defendant's application to strike out the claim and awarded costs in favour of the defendant. The plaintiff opposed an award of costs, arguing it would be a perversion of natural justice to pay the monarch for its active prevention of democracy, human rights, and natural justice. However, the Court found that nothing in the plaintiff's submissions displaced the usual presumption that costs should follow the event.

Orders