Fehling v The Queen - [2016] NZHC 2026

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 Crown

Judgment:

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

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 The Queen

Details

AGLC: Fehling v The Queen [2016] NZHC 2026
Case: [2016] NZHC 2026
Decision Date: 30 August 2016

CaseChat Overview and Summary

In Fehling v The Queen, Friedrich Joachim Fehling filed an application for an interlocutory injunction and a statement of claim against the Crown seeking to nullify section 24 of the Local Electoral Act 2001. The legal issues for the court to determine were whether Mr Fehling had a real prospect of success on his application for an interim injunction and whether his statement of claim should be struck out.

In dismissing Mr Fehling's application for an interim injunction, the court noted that he had effectively acknowledged there was no need for urgency by arguing that, with his application to bring an appeal to the Supreme Court, there should be a stay of the High Court proceedings. The court held that Mr Fehling's application for interim injunctive relief could not be dealt with on the basis there had been no defence or opposition to the application. The Crown had clearly set out the basis on which the application for injunctive relief was opposed. The court also struck out Mr Fehling's statement of claim on the basis that it contained offensive language and baseless allegations of corruption and bias, and that Mr Fehling had failed to serve the proceedings in the manner required by the High Court.

The court directed that any documents filed in the proceedings which had to be served on the defendant were to be served through delivery of those documents to the Crown Solicitor at Christchurch and that Mr Fehling was not to serve any documents in relation to these proceedings by delivering them to the Queen or the Governor-General, or to Government House.

Orders