Fehling v The Queen
[2016] NZHC 2026
•30 August 2016
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
CIV-2016-418-000020 [2016] NZHC 2026
UNDER SS 27 (1,3), 5 Bill of Rights Act 1990;
R 5.25 High Court Rules
IN THE MATTER OF
SECTION 24 LOCAL ELECTORAL ACT
BETWEEN
FRIEDRICH JOACHIM FEHLING Plaintiff
AND
R (ALSO CALLED REGINA (REX), QUEEN (KING), THE CROWN, ELIZABETH WINDSOR), BUCKINGHAM PALACE, LONDON, ENGLAND,
REPRESENTATIVE: GOVERNOR- GENERAL
Defendant
Hearing: 25 August 2016 (via telephone conference) Appearances:
No appearance for the Plaintiff
C J Lange and H McKenzie for the CrownJudgment:
30 August 2016
JUDGMENT OF NATION J
[1] On 28 June 2016, Mr Fehling filed a without notice interlocutory application for an injunction “to stop local elections using the dispute section 24 Local Electoral Act”. He also filed a statement of claim. In that statement of claim, the relief he sought was that s 24 Local Electoral Act 2001 should be nullified.
[2] On 30 June 2016, Mander J ordered that the proceedings be served on the
Crown Law Office.
FEHLING v R [2016] NZHC 2026 [30 August 2016]
[3] The proceedings were called on 25 July 2016. Mr Fehling appeared through an audiovisual link. I issued a minute on 26 July 2016 recording the relevant aspects of what had been discussed during that hearing and the directions which I made during that hearing.1
[4] In that minute, I noted the proceedings had not been served on the Crown Law Office as directed by Mander J. I directed the Court to make available to the Crown Solicitor at Christchurch copies of all documents which had been filed by Mr Fehling.2 I also directed the Crown to file whatever response it wished and Mr Fehling to file any response to the Crown documents within 10 days of the Crown posting its documents to him.
[5] There was a slip in the date I referred to for the Crown to file a response to the proceedings. This was corrected in a further minute of 5 August 2016 when I stipulated the Crown had to file a response by 9 August 2016.
[6] In my minute of 26 July 2016, I adjourned the proceedings for a further telephone conference to take place on 25 August 2016 at 9.00 am but indicated such conference would not be necessary if the Court had been able to issue a judgment dealing with all issues before then.
[7] Subsequent to my issuing those minutes, Mr Fehling purported to file a without notice application of 5 August 2016 “For Recusal of judge Nation from this Case”. In that application he claimed that a Judge of the High Court had been involved in “criminal fascistic corruption”. He also referred to the way a minute had been headed as indicating the Judge had been “intentionally incompetent (corrupt)”. I issued a minute of 8 August 2016 directing the Court not to accept that application in its then form given his application included comments which were scandalous and
an abuse of the Court.
1 Fehling v R HC Greymouth CIV-2016-418-20, 26 July 2016.
2 At [8].
[8] On 5 August 2016, Mr Fehling filed with the High Court at Greymouth, along with the application for recusal, a document he described as “Addition to Statement- of-claim argumentation for immediate determination, after recusal of Judge Nation”. In that document, Mr Fehling argued the defendant had not sent any response to Mr Fehling within the 10 day limit stipulated by the Court. He argued the Queen has the constitutional power in law to repeal an existing statute. He also argued the High Court has this power.
[9] On 9 August 2016, the counsel for the Crown Solicitor at Christchurch filed with the High Court at Greymouth:
· notice of opposition to application for injunction;
· submissions in support of opposition to application for injunction; and
· notice of application to strike out the plaintiff’s statement of claim.
[10] On 17 August 2016, Mr Fehling filed a number of documents with the High Court at Greymouth. These included an application to the Supreme Court for leave to appeal to the Supreme Court against “the Greymouth High Court’s unwritten but inherent unlawful decision (CIV-2016-418-020) to dismiss the statement of claim and reject democracy and the Bill of Rights per Judge Nation’s minute dated
26/7/16”.
[11] In a notice of application to the High Court, he stated that, because he had filed that application for leave to bring a civil appeal to the Supreme Court, there should be a stay of the High Court proceedings, at least until the application for leave to appeal to the Supreme Court had been dealt with.
[12] He also filed with the High Court at Greymouth the “Addition to statement- of-claim argumentation for immediate determination, after recusal of Judge Nation” which he had filed on 5 August 2016.
[13] In a “Plaintiff ’s Memorandum, Notice of Opposition”, Mr Fehling said he had filed the application for leave to bring a civil appeal in the Supreme Court “in order to pre-empt any trials by Judge Nation to unlawfully interfere in this case” and said “following points refer to the defendant’s documents of 9 August 2016”.
[14] In his memorandum, Mr Fehling referred to the discussion which I had with him during the previous hearing. Mr Fehling referred to my having correctly recorded his position when I wrote:3
[13] It is apparent from the statement of claim that Mr Fehling wishes to
argue the Court should make some sort of order “nullifying” the effect of s
24 Local Electoral Act 2001 as being in breach of the New Zealand Bill of
Rights Act 1990, the Human Rights Act 1993 and article 2.1 of the Universal
Democracy Constitution. This last is Mr Fehling’s document.
[14] In the conference before me, Mr Fehling said he accepted that current enrolment for local body elections and scrutiny of the counting of votes is in accordance with the provisions of s 24 Local Electoral Act. He recognises that at present the way the relevant authorities are proceeding is lawful but he would like to see changes to better achieve democracy and avoid fascism. He is thus seeking injunctions on the basis that there might ultimately be changes to s 24 and he does not want such potential changes to be of no practical effect. Mr Lange suggested that, if this is the basis on which injunctions are being sought, the application must be without merit and could be dismissed forthwith.
In relation to those statements in the minute, Mr Fehling said:
The Judge thus clearly understood the main legal issue, the requested relief/remedy and the situation, and orally transmitted this to the Crown lawyer in addition to the plaintiff’s words.
[15] In that document, Mr Fehling also presented a number of arguments in response to the application for strike out of his claim.
[16] He also filed a memorandum dated 16 August 2016 in which he stated that he regarded the conference scheduled for 25 August 2016 as cancelled due to:
i. his pending application for leave to bring a civil appeal to the Supreme
Court;
3 Fehling v R, above n 1.
ii. the lack of need for such a conference for the strike out application; and iii. the failure of the defendant to file a statement of defence;
[17] The High Court had directed there was to be a telephone conference in these proceedings at 9.00 am on 25 August 2016. That conference was not set aside through the Court having previously entered any judgment. It was not for Mr Fehling to unilaterally decide the conference had been cancelled.
[18] Mr Lange and Ms McKenzie participated in that conference for the Crown Solicitor. Despite a number of attempts by High Court Registry staff to contact Mr Fehling and ensure he could participate, it was not possible to make contact with him. He did not participate in the conference.
[19] For the reasons already referred to, there is currently no application before this Court for me to recuse myself as a Judge in the proceedings. Putting to one side the scandalous and abusive comments which do not require a response, Mr Fehling suggested I had a conflict of interest because it had been proven I was grossly incompetent in relation to earlier proceedings where he said:
The Supreme Court proved him to have been unable to be willed to recognise several obvious questions of law in the public interest, which he previously judged as being matters of fact in order to pervert justice via an appeal to the Appeal Court.
[20] That argument related to an earlier judgment in which I had declined an application for leave to appeal a judgment of another Judge in the High Court to the Court of Appeal.4 The Court of Appeal also declined an application for special leave to appeal to the Court of Appeal without any criticism of my judgment.5 The
Supreme Court did likewise in its judgment of 23 November 2015.6
4 Fehling v Appleby [2015] NZHC 388.
5 Fehling v Appleby [2015] NZCA 428.
6 Fehling v Appleby [2015] NZSC 178.
[21] Had there been a valid application for my recusal from these proceedings on the grounds set out by Mr Fehling, I would not have recused myself.
The application for an interim injunction
[22] In his interlocutory application for an injunction filed on 28 June 2016, Mr
Fehling sought:
1. an injunction to stop local elections using the disputed s 24 Local
Electoral Act;
2. an order implementing a practical interim solution, whereby the enrolments and ballots of the two different parliamentary and ratepayer electoral eligibilities should be kept separate and sealed; and
3. an order that, on election day, the different candidates of each local election should be allowed to attend the vote counting for ensuring validity checks that are truly independent of the electoral officer.
[23] As recorded in my minute of 26 July 2016, Mr Fehling made it clear he was content for his application to be dealt with on the papers without a hearing.
[24] I am dealing with the application for an injunction and the relief just referred to as an application for an interim injunction.
[25] As Woolford J put it in Parnell Property Investments Limited v Bank of New Zealand, “an applicant for injunction must satisfy a Court that he/she has a real prospect of succeeding in his/her claim for a permanent injunction at the trial”.7
[26] In Shotover Gorge Jet Boats Limited v Marine Enterprises Limited, Hardie
Boys J stated “it is obvious that if, on the facts presented, the law can give the
plaintiff no remedy, then he cannot obtain interim relief”.8
7 Parnell Property Investments Limited v Bank of New Zealand HC Auckland CIV-2010-404-
007186, 28 February 2011 at [26].
8 Shotover Gorge Jet Boats Ltd v Marine Enterprises Ltd [1984] 2 NZLR 154, (HC) at 157.
[27] In American Cyanamid Co v Ethicon Limited, Lord Diplock stated “the Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried”.9
[28] I do not need to give judgment on Mr Fehling’s application for an interim injunction on the basis that I can determine now his application has no prospect of success. The application for interim relief can, at this stage, be disposed of on the balance of convenience test.
[29] As Lord Diplock stated in American Cyanamid, an interlocutory injunction is a temporary, discretionary remedy intended to protect plaintiffs against injury by violation of their rights for which they could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in their favour at
the trial.10 The plaintiff’s need for such protection must be weighed against the
corresponding need of the defendant to be protected against injury resulting from having been prevented from exercising legal rights for which the defendant could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The Court must weigh one need against another and determine whether "the balance of convenience" lies in favour of granting or refusing the interlocutory relief that is sought.
[30] The potential merits of Mr Fehling’s application are relevant in this regard.11
He acknowledges that the local body elections are proceeding in accordance with the relevant provisions in s 24 of the Local Electoral Act. To grant an injunction in the terms Mr Fehling seeks would be to nullify, at least on a temporary basis, the effect of existing legislation and to interfere with the conduct of democratically held elections in accordance with existing legislation. The prospects of Mr Fehling succeeding in the substantive proceedings and having the High Court ignore or
disregard existing legislation are limited.
9 American Cyanamid Co v Ethicon Limited [1975] AC 396 (HL) at 407.
10 American Cyanamid Co v Ethicon Ltd, above n 9, at 405-406.
11 Parnell Property Investments Ltd v Bank of New Zealand, above n 7, at [27].
[31] Mr Fehling has effectively acknowledged that there is no need for the matter to be dealt with under urgency through arguing that, with his application to bring an appeal to the Supreme Court, there should be a stay of the High Court proceedings.
[32] Mr Fehling’s application for injunctive relief cannot be dealt with on the basis there has been no defence or opposition to the application. He did not serve the proceedings in the manner required by the High Court. The Crown has clearly set out the basis on which the application for injunctive relief is opposed.
[33] Mr Fehling’s application for interim injunctive relief is dismissed.
The strike out application
[34] Mr Fehling’s statement of claim, in which he asks for s 24 of the Local Electoral Act to be nullified, remains before the Court. The Crown has filed an application for the striking out of such proceedings. I direct that the application for strike out is to be set down for hearing for one half day. The hearing will be held in Christchurch but the Registry is to make arrangements so that Mr Fehling can appear by way of audiovisual link from the High Court at Greymouth.
[35] If the Crown wishes to file further submissions in support of its application, they are to be filed no later than 10 working days before the scheduled hearing. If Mr Fehling wishes to file any further submissions in reply or in opposition to the strike out application, they are to be filed no later than five working days before the hearing.
Service of documents
[36] The Crown understands that, since the conference of 25 July 2016 and my minute of 26 July 2016, Mr Fehling has attempted to serve documents for the defendant directly on the Governor-General and/or to Government House. For the avoidance of doubt, I direct that any documents filed in the proceedings which have to be served on the defendant are to be served through delivery of those documents to the Crown Solicitor at Christchurch. Mr Fehling is not to serve any documents in
relation to these proceedings by delivering them either to the Queen or the Governor- General, or to Government House.
[37] For him to attempt to do so would now be to ignore a clear direction from this Court as to the proper conduct of these proceedings. It would be an abuse of the Court proceedings and also an abuse of the constitutional position of the Queen, justifying the strike out of Mr Fehling’s substantive proceedings without further notice.
Documents that are an abuse of the Court and the proceedings
[38] I note also that, in its judgment in proceedings regarding the Human Rights
Act 1993, the Court of Appeal stated that:12
… the papers filed by Mr Fehling contain offensive language and baseless allegations of corruption and bias constituting contempt of court. He is put on notice that any further documents with contents of that nature will not be accepted for filing.
[39] Documents of a similar nature have been filed in these proceedings. I have already referred to the rejected application for recusal. In his “addition to statement of claim argumentation”, Mr Fehling uses offensive language and makes baseless allegations of corruption in making references to the New Zealand Judiciary’s “fascistic power-complacency acquired already during childhood under this Monarchy”.
[40] In his memorandum and notice of opposition to strike out, Mr Fehling argued the defendant’s application to strike out the proceedings was in some way motivated by:
… the general practice and interest of this private law firm serving as Crown Law Office to induce costly extended proceedings, lining its monetary pockets in a frivolous, vexatious and malicious abuse of process.
[41] Mr Fehling uses offensive language as to the Court of Appeal in referring in his statement of claim to “the fascistic royals and their judicial might is right
prostitutes”.
12 Fehling v Appleby, above n 5, at [11].
[42] I regard those comments as offensive and scandalous.
[43] I put Mr Fehling on notice that he is not to file with this Court in these proceedings any further documents that contain offensive language and baseless allegations of corruption and bias. I direct the Court not to accept any further documents in these proceedings with contents of that nature.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy to: F J Fehling.
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