Fehling v Attorney-General
[2016] NZHC 2911
•2 December 2016
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 DefendantJudgment:
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 allegations of corruption and bias, nor for
the Court to accept such documents with contents of that nature.
2 Fehling v R [2016] NZHC 2026.
[7] The application for strike out was set down for hearing on
30 November 2016. On 16 November 2016, the Crown filed submissions in accordance with Nation J’s timetabling directions. On 22 November 2016, Mr Fehling filed a document entitled “memorandum regarding scheduled strike-out hearing on 30/11/16”. In that memorandum, Mr Fehling advised:
(a) the memorandum was being sent to “the defending monarch and not to any Court appointed lawyers”;
(b)the plaintiff would not appear at the strike-out hearing on 30/11/16 because an in-person hearing is “a malicious and corrupt waste of time and resources, as all evidential proofs of a clearly untenable case must have been provided by the defendant long before now - - and have not been provided!”
(c) the plaintiff would not pay any costs to the defendant for such hearing;
(d) the plaintiff was appealing the High Court Judge’s decision.
[8] As a consequence of the plaintiff’s advice that he would not be appearing at the hearing, I vacated the hearing and directed the matter would be determined on the papers.3
The law
[9] High Court r 15.1 provides jurisdiction for the Court to strike out all or part of a pleading in defined circumstances:
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
3 Fehling v Attorney-General, Minutes of Dunningham J issued 22 November 2016 and
28 November 2016.
(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.
[10] In deciding whether an application should be struck out the following principles apply:4
(a) Pleaded facts, whether admitted or not, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation;
(b)The cause of action or defence must be clearly untenable. As was said in Couch v Attorney-General:5
[33] It is inappropriate to strike out a claim summarily unless the Court can be certain that it cannot succeed. The case must be “so certainly or clearly bad” that it should be precluded from going forward.
(c) The jurisdiction is to be exercised sparingly, and only in clear cases.
This reflects the Court’s reluctance to terminate a claim or defence short of trial.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e) The Court should be particularly slow to strike out a claim in any developing area of the law.
4 Attorney-General v Prince [1998] 1 NZLR 262 (CA); Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725.
5 Couch v Attorney-General, above n 4 (footnotes omitted).
The statement of claim
[11] Mr Fehling’s pleadings do not articulate the legal basis of his claim in any conventional sense, and they therefore do not identify the jurisdictional basis for the claimed relief, being the nullification of s 24 of the Local Electoral Act 2001 (the Act).
[12] Section 24 of the Act provides:
24 Ratepayer electors
(1) Every parliamentary elector is qualified as a ratepayer elector of a region, a district, a local board area, or a community if the address for which the person is registered as a parliamentary elector is outside the region, district, local board area, or community, and—
(a) that person is identified in the appropriate valuation roll as the sole ratepayer in respect of a rating unit within the region, district, local board area, or community; or
(b) that person is nominated to be enrolled as a ratepayer elector in respect of a rating unit within the region, district, local board area, or community, owned by 1 or more ratepayers, none of whom is qualified as a residential elector within the region, district, local board area, or community.
(2) Subsection (1) does not authorise the nomination of different persons by the same ratepayer or ratepayers in respect of different properties within the same region, district, local board area, or community.
[13] The section is designed to allow ratepayers in respect of rateable properties in a region, district, local board area or community to participate in the local elections if they otherwise could not because they are not registered as a parliamentary elector in that region, district, local board area or community. However, it also provides limitations to ensure that only one vote is exercised by the ratepayer in that region, district, local board area or community.
[14] Mr Fehling’s concern is that this provision is anti-democratic and unconstitutional. He also says it does not meet the purpose of the Act, which is to implement fair and effective representation for individuals and communities and to provide transparent electoral systems and voting methods. Consequently, he considers it is not a provision which is justifiable in a free and democratic society as required by s 5 of the New Zealand Bill of Rights Act 1990 (NZBORA).
[15] Examples of the allegedly damaging effects of s 24 are listed at paragraph 14 of Mr Fehling’s claim. In summary he claims:
(a) It creates a bias towards “fascistic wealthy persons” and the Council/Board members selected do not represent the “true philosophy range of the local populations and their minorities …”.
(b)The resulting lack of “restricting Councillor voices” led to the construction of “phallic high-rise towers” in Christchurch and this contributed to the huge earthquake damage and loss of life by amplifying the effects of the quake on smaller buildings.
(c) It also explains why developers are “given most [of] what they want”
for example, “profitable irrigation-scheme resource consents”.
(d)The Councils elected as a consequence also endanger the general public, for example, by dropping 1080.
(e) It meant that in Auckland, despite the population being more left-leaning than elsewhere, the “free mason fascist and former police minister John Banks repeatedly obtained the mayor position”.
Is there a reasonably arguable cause of action?
[16] Because the legal basis of the claim is unclear, I approach the first ground of the application to strike out by focusing on the relief sought and asking whether the Court could ever make some sort of order “nullifying” the effect of s 24 of the Act because it is in breach of the NZBORA, the Human Rights Act 1993, or is otherwise undemocratic or unfair.
[17] Mr Fehling argues that because the Queen, through her representative the Governor-General of New Zealand, must give assent to legislation, she can equally withdraw royal assent and thus nullify laws. However, I do not need to consider the question of whether the monarch could withdraw her assent to one single aspect of a bill she has already assented to, as that is not what is sought here. What is sought here is for the High Court to make an order which would have the effect of “nullifying the offending section of the Local Electoral Act”. Mr Fehling provides no authority for the bold proposition that the Court can lawfully do this, other than his reliance on principles of democracy and fairness, and the power of s 5 of the NZBORA.
[18] In making this submission, Mr Fehling has conveniently ignored the qualification in s 5 which refers to s 4 of the NZBORA. The full text of s 5 is as follows:
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[19] Section 4 in turn provides:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this
Bill of Rights.
[20] Put simply, even if Mr Fehling were correct in his assertion that the provisions of s 24 of the Act are not justified in a free and democratic society, he must then confront the fact that s 4 prohibits the Court from holding that provision to be invalid or ineffective simply because it is inconsistent with any provision of the NZBORA.
[21] That in turn reflects the wider constitutional principle of the legislative sovereignty of Parliament. This principle was expressed by Lord Hoffman, albeit in the United Kingdom context, when he said:6
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act
1998 will not detract from this power. The constraints upon its exercise by
Parliament are ultimately political, not legal.
[22] That said, he goes on to acknowledge that Parliament will be constrained by the political cost of enacting legislation which, for example, erodes human rights, and that in addition, the Courts will always favour an interpretation of the legislation which best protects fundamental human rights and other principles by which democratic societies run.
[23] In my view, Mr Fehling’s claim does not disclose a reasonably arguable cause of action. He has failed to point to any legal basis on which the Courts could strike down an apparently clear (and, to date, relatively uncontentious), legislative provision. While the onus is, of course, on the defendant to establish the grounds for striking out, I am quite satisfied that Mr Fehling’s claim, even on the most favourable reading of it, could never possibly succeed, and the defendant has discharged that onus.
[24] For completeness, I also record that the fact that the defendant has not filed a statement of defence is immaterial to that finding, noting Mr Fehling relies on this to suggest that he can obtain judgment in his favour relying on HCR 12.2. The defendant expressly sought a direction extending the timeframe for filing a statement of defence at the same time as it filed this application to strike out. This was in part because the defendant claimed it was not possible to sensibly respond to the claims as pleaded. The defendant also recorded that the allegations in the statement of claim were denied “to the extent it is able to do so” and clearly raised defences to it
by the filing of the application to strike out.
6 R v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115 (HL) at 131.
[25] I am satisfied, that in the present case, it was appropriate for the filing of a statement of defence to be deferred until the application to strike out is determined, and I make that direction as requested. This has caused no prejudice to Mr Fehling as this application to strike out proceeds on the basis that the reasonable factual allegations of the plaintiff are correct and I have found that even on the most favourable reading of Mr Fehling’s claim, it cannot succeed in law.
Are the pleadings an abuse of process of the Court?
[26] While strictly speaking, it is not necessary to do so given my finding on the first ground, I go on to consider the defendant’s alternative basis for striking out, which is that 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 process of the Court.
[27] The particulars provided in support of this ground were that:
(a) it was not possible for the defendant to sensibly respond to the claim; (b) the statement of claim and other documents filed included much
irrelevant material such as references to a letter to the editor on the housing crisis;
(c) the statement of claim and related documents are unnecessarily prolix;
(d)the defects in the pleadings are incapable of being cured by amendment; and
(e) the relief sought is largely incomprehensible and, to the extent it can be understood (for example, the request that s 24 of the Local Electoral Act 2001 be nullified), beyond the power of the Court.
[28] I accept that the statement of claim, in its current form is significantly defective. There is no cause of action pleaded and the pleadings comprise a sequence of lengthy and convoluted questions and lengthy and convoluted submissions. For example, the first paragraph reads as follows:
Paramount Constitution Question of Law (Natural-Justice definition)
[1] Should precedence case law under the Bill of Rights Act be started by defining / interpreting Principles of “Natural Justice” per SS.6,27(1) Bill of Rights Act 1990 BORA and S.105(1,2(a)) Human Rights Act 1993 HRA according to article 2.1 of the Universal Democracy Constitution, in order to reduce the monarch’s courts’ totalitarian at-will discriminatory discretion:
Natural: Following the logical causal chain, arranging real causes / events and their real results / consequences in the time-correct sequence; It does not mean first-past-the-post, virtual or mad!
Justice: Balance of the adherence to reasonable agreements, including democratically originated laws, under the safeguarding frame of this constitutional NZ Bill of Rights Act 1990; It includes correction of breaches with compensation of victims as one part, with the aim to prevent repetition of breaches ?
[29] I also accept that some of the pleadings might be considered offensive or scandalous as was the conclusion of both Nation and O’Regan JJ,7 and this element, too, contributes to my assessment of the deficiency of the pleadings. Furthermore, although the statement of claim itself is not excessively prolix,8 it does become so, when I take into account the numerous documents appended to it which bear no or marginal relevance to the claim.
[30] In summary, the pleadings are not “accurate, clear and intelligible” as is required.9 That said, if I had discerned an arguable cause of action, I would have directed the plaintiff to amend the pleadings rather than to strike them out. However, given my conclusion that no reasonably arguable cause of action arises, there is no reason to take such a conservative approach.
[31] Consequently, I hold that the defendant’s second ground in support of the
application to strike out is also made out.
7 Fehling v Attorney-General [2016] NZSC 154 at [8]; Fehling v R [2016] NZHC 2026 at [42].
8 It comprises seven pages of closely-typed text.
9 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013]
2 NZLR 679 at [84].
Result
[32] For the reasons given above, I make the order sought by the defendant
striking out the plaintiff’s statement of claim.
[33] As the defendant has been successful, it is entitled to costs. I note Mr Fehling has submitted that he opposes an award of costs as it would be “a perversion of Natural Justice to pay the monarch for its active prevention of Democracy, Human Rights and Natural Justice contrary to the constitutional Bill of Right 1990 (sic) and the interest of the democratic General Public”. However, nothing he has said in his submissions displaces the usual presumption that costs should follow the event. In the circumstances, I award 2B costs in favour of the defendant.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To: Mr Fehling
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