Harding v Minister of Justice

[2025] NZHC 2367

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-2261

[2025] NZHC 2367

UNDER

the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990, Human Rights Act 1993, Universal
Declaration of Human Rights

IN THE MATTER

of an application for judicial review

BETWEEN

BROWNIE HARDING

Applicant

AND

MINISTER OF JUSTICE

First respondent

AND

MINISTER OF POLICE

Second respondent

AND

ATTORNEY-GENERAL

Third respondent

Hearing:	On the papers
Appearances:	Applicant in person
Date of judgment:	20 August 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 20 August 2025 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Copy to:

Applicant

HARDING v MINISTER OF JUSTICE [2025] NZHC 2367 [20 August 2025]

[1]                On 19 August 2025, the Registrar referred this proceeding dated 9 June 2025 to me as judicial review list judge, for consideration under rule 5.35B of the High Court Rules 2016, pending which the Registrar has withheld service documents.1

[2]                Brownie Harding filed the proceeding in his own right and on behalf of “all [gang] members registered on the police data base” to obtain this Court’s “reconsideration” of the respondents’ “decision to implement” introduction of the Gangs Act 2024, as allegedly inconsistent with the New Zealand Bill of Rights Act 1990 and Human Rights Act 1993, for its revocation and declaratory and other relief from those alleged statutory breaches.2

[3]                Rule 5.35B entitles me to (among other things) strike out a pleading and dismiss a proceeding if “satisfied that the proceeding is plainly an abuse of the process of the court”.3 An abuse of process is the “improper use of [the court’s] machinery”,4 or the use of a court process “for a purpose or in a way which is significantly different from [its] ordinary and proper use”.5 I have a duty to prevent such abuses, but nonetheless:6

The power under r 5.35B must be exercised sparingly, and only in the clearest of cases. Given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served, the abuse must be clear beyond doubt from reading the claim.

[4]                Mr Harding only may issue a proceeding on behalf of, or for the benefit of, others with the same interest in the subject matter of a proceeding only with those others’ consent or as directed on application.7 No consent is evidenced or application made. I therefore address the proceeding as brought by Mr Harding in his own right.

1      High Court Rules 2016, r 5.35A.

2      The statement of claim’s prayer for relief expressly seeks to “have the Crimes Act 2024 revoked”. There is no such act. I construe the reference to mean the Gangs Act 2024, the subject of the claim.

3      High Court Rules, r 5.35B(1).

4      Commissioner of Inland  Revenue  v  Chesterfields  Preschools  Ltd  [2013] NZCA 53, [2013] 2 NZLR 679 at [87], citing Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London, 1996) at [10.15].

5      Te Wakaminenga O Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [14]–[15], quoting Attorney-General v Barker  [2000] 1 FLR 759 (QB) at 764.

6 At [15].

7      High Court Rules, r 4.24.

[5]                While “there remain questions about the exact scope, qualifications and basis of the principle of non-interference in parliamentary proceedings”,8 judicial review is not available to challenge “the decision of a minister to introduce a Bill to the House”,9 irrespective of any contended inconsistency with the New Zealand Bill of Rights Act.10 I am satisfied the proceeding thus plainly is an abuse of process; the abuse is ‘clear beyond doubt’.

[6]Under rr 5.35B and 15.1, I therefore strike out Mr Harding’s claim in, and

dismiss, this proceeding.

[7]                Because that order is made without giving Mr Harding opportunity to be heard, he has a right to appeal against my decision.11 As an appeal to the Court of Appeal as of right, for which the High Court Rules specify no time, any appeal must be brought within 20 working days after the date of this decision.12

—Jagose J

8      Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [46], referring to Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) at 307–308. See also Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC) at [95]–[101].

9 At [46].

10     Ngāti Mutunga O Wharekauri Asset Holding Company Ltd v Attorney-General [2020] NZCA 2, [2020] 3 NZLR 1 at [17].

11     High Court Rules, r 5.35B(3).

12     Court of Appeal (Civil) Rules 2005, r 29(1AA) and (1).