Hill v The Queen
[2019] NZHC 691
•14 May 2019
Delivered at 4:30pm on Tuesday 14 May 2019 pursuant to rule 11.5
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-1018A
[2019] NZHC 691
BETWEEN FREDRICK HILL
Plaintiff
AND
THE CROWN
First Defendant
THE ATTORNEY-GENERAL
Second Defendant
THE MĀORI LAND COURT
Third Defendant
THE WAITANGI TRIBUNAL
Fourth Defendant
DEPARTMENT OF CONSERVATION
Fifth Defendant
CIV-2017-485-1018B BETWEEN
FREDRICK HILL
PlaintiffAND
THE CROWN
First Defendant
THE ATTORNEY-GENERAL
Second Defendant
THE MĀORI TRUSTEE
Third Defendant
THE TARARUA DISTRICT COUNCIL
Fourth Defendant
Hearing: 27 November 2018
HILL v THE CROWN [2019] NZHC 691 [14 May 2019]
Counsel: Plaintiff in Person
G L Melvin and J B Watson for First and Second Defendants G Shaw for Third Defendant
D J Neutz for Fourth Defendant
Judgment:
14 May 2019
JUDGMENT OF CLARK J
Introduction
[1] In this judgment I determine the strike-out applications made by the defendants in respect of two proceedings that Mr Hill commenced in April 2018. I note at the outset that the third, fourth and fifth defendants in Claim A (described below at [9]), abide the decision of the Court.
Background to litigation
[2] Following a call of the proceedings in the Judge’s Chambers List on 30 July 2018, and assisted by an extensive memorandum filed on behalf of the Māori Trustee, Ellis J set out the procedural background to the claims in a minute dated 2 August 2018. The description that follows draws on the helpful chronology set out in the minute, which Ellis J issued for the benefit of any judicial officer required to deal with the proceedings. Where relevant to do so I have also referred to judicial observations made over time in the context of Mr Hill’s many court cases.
[3] Mr Hill is a former tenant of Mangatainoka 1BC2B3, a block of Māori land administered by the Māori Trustee as responsible trustee of Mangatainoka 1BC2B3 Ahu Whenua Trust. Mr Hill has been engaged in a longstanding dispute with the Māori Trustee in relation to his lease of the land. The lease, which was due to expire in December 2015, was cancelled on 23 February 2015. The debt arising from Mr Hill’s breaches of the lease led to bankruptcy proceedings against him. Ancillary issues arose relating to the removal of Mr Hill’s property from the land and his continued grazing of horses on the land. The horses were removed and rehomed by the Tararua District Council.
[4] Mr Hill has previously challenged the historic alienation of the land in question and the legality of the lease itself. Various judicial determinations and orders followed.
(a)On 23 February 2015, following a trial in the District Court at Palmerston North, Judge Ross cancelled the lease of Mangatainoka 1BC2B3, granted possession of the land to the Māori Trustee and entered judgment in favour of the Māori Trustee in the sum of
$87,423.33.1
(b)On 10 June 2015, Judge Bouchier refused Mr Hill’s application for a retrial.2
(c)Mr Hill appealed Judge Ross’ finding of liability for breaches of the lease, his order for cancellation and the award of damages. The appeal came before Dobson J who, in a reserved judgment delivered on 4 March 2016, dismissed Mr Hill’s appeal “in all respects, including the various challenges to the process adopted in the District Court …”.3
(d)Dobson J reviewed the history of the proceedings in the District Court including a “so-called interlocutory application for judicial review” and all steps taken in pursuit of Mr Hill’s appeal. The Judge’s conclusion that the proceedings overall had been made more difficult for the Māori Trustee triggered the prospect of liability for increased costs although the Judge considered it inappropriate at that stage to make a formal finding as to whether Mr Hill’s conduct of the proceedings had been frivolous and vexatious. The matter was left for the Māori Trustee to raise.4
(e)On 9 August 2016, Dobson J dismissed Mr Hill’s application for leave to appeal.5 Dobson J was satisfied none of the three documents Mr Hill
1 Māori Trustee v Hill DC Palmerston North CIV-2011-054-000533, 23 February 2015.
2 Māori Trustee v Hill [2015] NZDC 10506.
3 Hill v Māori Trustee [2016] NZHC 364 at [76].
4 At [78].
5 Hill v Māori Trustee [2016] NZHC 1847.
had filed in relation to his proposed further appeal raised an issue of sufficient importance to warrant consideration by the Court of Appeal. In addition to repeating arguments that Dobson J found unpersuasive on the first appeal, the Judge regarded other propositions that Mr Hill advanced as “expressed in nonsensical terms” such that they could never constitute a question of sufficient importance to “trouble the Court of Appeal”.6
(f)On 9 August 2016 the Court of Appeal dismissed Mr Hill’s application for a stay of the District Court decision pending a further application for leave to pursue a second appeal.7 The Court of Appeal observed:
[11] Mr Hill lacks any present tenure in the land. He is in law a trespasser. …
(g)Next Mr Hill applied under s 145A of the Land Transfer Act 1952 for an order that a caveat registered by him on the title to Mangatainoka 1BC2B3 not lapse. In a judgment delivered on 2 September 2016, Associate Judge Smith dismissed the application and revoked an interim order made on 26 July 2016 that the caveat not lapse.8
(h)On 7 October 2016, the Court of Appeal declined Mr Hill’s application for leave to bring a second appeal against the decision of Judge Ross.9 The Court of Appeal noted Mr Hill had failed to identify or particularise a question of law or fact for argument on appeal but had simply repeated arguments that had been dismissed in the lower courts. The Court of Appeal gave particular weight to the submission on behalf of the Māori Trustee that the beneficial owners of the land at Mangatainoka 1BC2B3 had received no return on their asset since 2009 and that Mr Hill had remained in possession unlawfully since 11 December 2015. The Court of Appeal added:10
6 At [11]–[14].
7 Hill v Māori Trustee [2016] NZCA 380.
8 Hill v Māori Trustee [2016] NZHC 2074.
9 Hill v Māori Trustee [2016] NZCA 487.
10 At [9], quoting Hill v Māori Trustee (2016) 50 Tākitimu MB 28.
As Judge Doogan observed in declining Mr Hill’s recent application to summon a meeting of owners in the Māori Land Court:
[16] It is clear that the retention, use, development and control of the land by the Māori owners would be more effectively promoted by severing Mr Hill’s hold on the land, not by providing opportunities to extend it.
Their interests have been adversely affected by Mr Hill’s contractual breaches and the delays in enforcing their rights. The interests of justice do not favour a further right of appeal.
(i)On 29 November 2016, Dobson J issued a minute following the Registry’s referral to him of two sets of documents filed by Mr Hill purporting to commence fresh proceedings in the High Court. The first proceeding sought judicial review of Judge Ross’ decision and Dobson J’s decisions dismissing Mr Hill’s appeal and refusing leave to bring a second appeal. In the second “purported proceeding” Mr Hill sought a public apology from the Māori Trustee and judgment against it for $4.5 million for Mr Hill’s costs in appearing in litigation against the Māori Trustee. Dobson J directed the Registry to reject both sets of proceedings. The first was not in a proper form and the second constituted an abuse of process.
(j)The Māori Trustee issued a bankruptcy notice requiring Mr Hill to pay the sum of $87,423.33 together with $796 costs, being the amount of the judgment the Māori Trustee obtained against Mr Hill in the District Court at Palmerston North on 23 February 2015. Mr Hill applied to set aside the bankruptcy notice. In his reserved judgment delivered on 29 September 2017, Associate Judge Smith dismissed the application to set aside the bankruptcy notice.11
(k)Mr Hill sought to bring a private prosecution alleging theft in respect of chattels he had not removed from the Mangatainoka block and which had been treated as abandoned goods. The proposed private prosecution was first dealt with by Judge Large who made directions
11 Māori Trustee v Hill [2017] NZHC 2377.
on 15 December 2016 that the statutory requirements had not been met. On 10 March 2017, Judge Large again ruled the documents were defective. On 28 May 2018, Judge Smith directed that a further charging document Mr Hill had attempted to file in the District Court at Palmerston North should not be accepted by the Registrar for filing.
(l)Mr Hill also filed proceedings in the Māori Land Court. On 5 July 2018, Judge Doogan dismissed an application by Mr Hill for an injunction against the Māori Trustee and the Tararua District Council. Mr Hill sought to prevent his horses from being impounded by the Council. Although he had not paid the required filing fee Judge Doogan agreed to waive the filing fee requirement. Judge Doogan referred to a similar application by Mr Hill for injunctive relief that Judge Doogan had dismissed in April 2016. As at July 2018, Mr Hill’s horses remained unlawfully on the block. Mr Hill was not an owner in the land and neither Mr Hill nor his horses had any right to be on the land. Judge Doogan observed the “legal position has been clear for some time”.
(m)On 12 July 2018, Judge Doogan dismissed a similar application by Mr Neville Hurunui for an interim injunction in respect of Mr Hill’s horses.
[5] The genesis of the current proceedings was a document Mr Hill filed in the High Court in December 2017 entitled “Application to determine status of land, repeal and resumption — Judicial Review”. The eight named defendants were:
(a)The Crown
(b)The Attorney-General
(c)Department of Conservation
(d)Māori Trustee
(e)Waitangi Tribunal
(f)The Māori Land Court
(g)Totaranui Stud Ltd
(h)Tararua District Council
[6]Mr Hill subsequently described this proceeding in the following way:
The Plaintiff has previously identified cause of action with non-performance, errors, breach of trust in alienation from the root titles at Tararua Block 1881 and at Mangatainoka 1BC, 2BH and subsequent partitions by way of supporting affidavit and a detailed report prepared dated 1 December 2017 registered file CIV 2017-485-1018.
The motion sought direction as to the appropriate course of remedy. That is by way of Declaratory Judgment or Judicial Review.
[7] Simon France J directed the document was not to be accepted for filing. In a minute dated 12 February 2018, his Honour said:
The document does not conform with the requirements of court documents. More importantly it is not in a format from which it can be understood what decisions are being challenged, and what is being asked of the Court. It is impossible for named respondents to know why they are named or to fairly respond.
[8] Mr Hill was given two months to file a repleaded document. His Honour encouraged Mr Hill to obtain legal assistance.
[9] On 13 April 2018 Mr Hill filed the two proceedings that are the subject of these strike-out applications and this judgment. CIV-2017-485-1018A, which I refer to as Claim A, relates to the Tararua Block. CIV-2017-485-1018B, which I refer to as Claim B, relates to the Mangatainoka 1BC2B2, 1BC2B3 and 2BH2D blocks. I discuss the two claims sequentially but before doing so I address the strike-out jurisdiction and the principles to be applied in determining these applications to strike out.
The strike-out jurisdiction
[10] Rule 15.1 of the High Court Rules 2016 empowers the court to 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
(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.
[11] If the court strikes out a statement of claim it may, at the same time, strike out the proceeding. Instead of striking out all or part of a pleading, the court may stay the proceeding on conditions.12
[12] Unless the court can be certain the claim cannot succeed it will be inappropriate to strike out the claim.13 That the jurisdiction is to be exercised sparingly reflects the courts’ proper reluctance to summarily terminate a claim. As Elias CJ framed the proposition:14
… Caution in disposing of such cases on a summary basis is necessary both to prevent injustice to claimants and to avoid skewing the law with confident propositions of legal principle or assumptions about policy considerations, undisciplined by facts.
[13] Where a defendant seeks to strike out a claim on the basis of abuse of process an element of impropriety and misuse of the Court’s processes is required. Forms of abuse can include prolix, unintelligible or scandalous pleadings, collateral challenge to concluded proceedings or an attempt to obtain a collateral benefit.15 If the defects in the pleadings can be cured, the Court will usually allow an amendment to the statement of claim.
12 High Court Rules 2016, r 15.1(2)–(3).
13 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33], citing X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (HL) at 740 per Lord Browne-Wilkinson; Attorney- General v Prince and Gardner [1998] 1 NZLR 262 (CA); General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at [35]; and Takaro Properties Ltd (in rec) v Rowling [1978] 2 NZLR 314 (CA) at 329 per Woodhouse J.
14 Couch v Attorney-General, above n 13, at [32]
15 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
Claim A
[14] In 1873, the Crown purchased a 114,500-acre block of land located in the eastern Tararua Ranges. At the time of purchase the Crown agreed to exclude from its purchase a 1000-acre reserve at Hapuakorari (the Hapuakorari Reserve). Although it was not included in the bundle of documents before the Court for the purposes of the strike-out application, the Crown does not dispute that the deed of sale records the Crown’s reservation of 1000 acres. The Hapuakorari Reserve was to be vested in individuals from three iwi: Ngāti Kahungunu, Rāngitane and Mūaupoko. But the Hapuakorari Reserve was never vested as promised. That is the core grievance underlying Claim A.
[15] Mr Hill’s statement of claim dated 13 April 2018 seeks a range of orders under the Declaratory Judgments Act 1908. Mr Hill applies also for judicial review and seeks compensation and exemplary damages.
[16] The claim commences with a statement of the 12 pieces of legislation under which the claim is brought and then, almost by way of preambles, states in broad terms the declaratory judgments sought. I recognise that in summarising this part of Mr Hill’s claim I will necessarily omit detail that is important to Mr Hill’s pleading, but I am reasonably confident the following summary captures the essence of Mr Hill’s preambles. Orders are sought:
(a)to determine status of land and other orders or directions deemed just including compensation in regard to the “inchoate Deed of Sale of Tararua Block”;
(b)to determine status of land and such other orders deemed just with a focus on the “bona fide or mala fide transactions and acquisition of a certificate of title over the Tararua Block by the Crown”;
(c)to determine if the Deed of Sale and subsequent certificate of title over the entire Tararua Block are both inchoate instruments of conveyance of Take Tupuna or Papatipu land; and
(d)to determine sites of historical and cultural significance.
[17] Mr Hill claims that the Hapuakorari Reserve has never been surveyed and the purchase agreement is “effectively inchoate, defective and null [and] void”. By reference to various statutes the statement of claim then describes how the Hapuakorari Reserve was “declared unalienable” and has not been set aside for the hapu with an interest in this sacred taonga. Mr Hill describes the immense cultural and historical significance of the reserve and his belief that affected hapu include Muaūpoko, Hamua, Rangitāne, Ngāi Tahu, Ngāti Moe/Muretu.
[18] The claim pleads a breach of the Treaty of Waitangi and pleads that an urgency application to the Waitangi Tribunal to not make any finding in respect of the Hapuakorari Reserve was never registered. A further breach of Treaty of Waitangi principles is alleged in respect of claimed policy directives to the Tribunal by the Crown. Exemplary damages are claimed “in the form of return of the Tararua Block to the Hapu and Rangatira descendants affected … ”.
Claim A: strike-out application
[19] The first and second defendants16 apply to strike out Claim A on three broad grounds.
[20] First, it is said the claim discloses no reasonably arguable cause of action. Mr Melvin submits Mr Hill’s claims are made in relation to the sale and purchase of certain land approximately 145 years ago. Even determining the location of Hapuakorari Reserve would be “a fraught and uncertain exercise (as 145 years of history demonstrates)”. The Crown says it is inappropriate for the Court to exercise its declaratory jurisdiction where the dispute rests on contested facts.17
[21] Mr Melvin submits it is difficult to further analyse Mr Mill’s case for compensation or exemplary damages as Mr Hill has pleaded no basis for either. Nor is the measure of any such compensation pleaded.
16 In this judgment I refer to the first and second defendants in both Claim A and Claim B as “the Crown”.
17 See Kamo v Minister of Conservation [2018] NZHC 1983, [2018] NZAR 1334 at [40]–[41].
[22] Two further deficiencies were identified in support of the first broad ground for striking-out.
(a)The Waitangi Tribunal is a standing commission of inquiry, independent of the Crown, and Mr Hill has pleaded no basis for his assertion that “Crown policy directives” are the reason why the Tribunal has not inquired into the Hapuakorari Reserve.
(b)The Crown argues there is no plausible basis upon which the Court could issue a writ of mandamus compelling the Tribunal to accept Mr Hill’s application for an urgent hearing. A writ of mandamus secures the performance of public duties and the Tribunal is under no such duty. Nor has Mr Hill pleaded any basis for the Tribunal being under a duty to register and determine claims for urgency it cannot sensibly analyse because such claims do not provide sufficient information to the Tribunal.
[23] The second broad ground for strike-out is that the statement of claim is likely to cause prejudice or delay. Being lengthy, diffuse and difficult to understand it is said the statement of claim does not fairly inform the first and second defendants of the nature of the claim. It has been amended once and is unlikely to be improved.
[24] Thirdly, the statement of claim is said to be vexatious and otherwise an abuse of process. That is because there are other fora that have exclusive or primary jurisdiction over the claims Mr Hill has raised. Mr Hill has attempted to advance his claim in those fora but such attempts have been unsuccessful owing to procedural irregularities. Accordingly, to bring these same matters before the High Court is an abuse of process.
Mr Hill’s opposition to the strike-out of Claim A
[25] Mr Hill filed a notice of opposition and two sets of written submissions. Mr Hill says his claims raise a genuine cause of action and he requests a remedy “as of right” as to the true legal status of the title obtained by the Crown in the Tararua Block as at 1881. He says there has been a breach of the terms and conditions of the
Deed of Sale signed in October 1873. Mr Hill’s submissions included detailed references to the circumstances in which the Deed of Sale was signed in 1873, the reservation of two one-thousand acre reserves from the sale, the failure to survey the reserves, the subsequent erroneous sale of the reserve land to third parties sometime prior to 1881 and the Native Land Court’s order transferring the land to the Crown in 1881. Mr Hill also refers to the fact that Crown agents unsuccessfully attempted to locate the reserves over a number of years in the 1970s.
Discussion
[26] While Mr Hill’s core grievance is readily understood, there are aspects of the Crown’s challenge to the statement of claim in Claim A with which I agree. The statement of claim lacks clarity and precision. It does not comply with the requirements for pleadings set out in the High Court Rules:18
Pleadings provide the framework and architecture for the litigation. They are the reference point for discovery and the briefing of evidence; for the preparation of each party’s case and for the conduct of the litigation from its inception to its conclusion.
[27] Distinct causes of action founded on separate and distinct facts must, to the extent possible, be stated separately and clearly.19 The statement of claim must show the general nature of the plaintiff’s claim to the relief sought and give sufficient particulars of the circumstances to inform the defendants of the cause of action.20 The statement of claim must also conclude by specifying the relief or remedy sought.21 These requirements of a statement of claim are additional to the requirement that the statement of claim must be accurate, clear and intelligible.22
[28] Mr Hill’s statement of claim fails to state distinct causes of action. Even on a benevolent view of the preambles, and construing them as statements of the relief or
18 McGechan on Procedure (loose-leaf ed, Thomson Reuters) at [HRPt5Subpt4.01], referring to Hoyle v Hoyle [2016] NZHC 3120 at [60], citing Lawton LJ’s observations in Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246 (CA) at 309.
19 High Court Rules 2016, r 5.17(1).
20 Rule 5.26(a) and (b).
21 Rule 5.27.22 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [84].
remedies Mr Hill seeks, there remains a failure to specify the relief and remedy sought in respect of any, or each, cause of action.
[29] These failures in form render the pleadings unintelligible. Pleadings that lack the requisite clarity and precision prejudice defendants and cause delay because, the defendants struggle to identify the exact nature of the legal claim against them which Mr Hill says entitles him to relief. Mr Hill’s statement of claim is prolix and, primarily, pleads purely evidential matters. In these respects, I have no doubt the pleading, in its current form, will cause both prejudice and delay to the Crown and the Court’s processes. The Crown should not be prejudiced by having to meet a claim that is so lacking in relevant particularity, so confusingly drafted and which wholly fails to meet the requirements of a statement of claim set out in rr 5.17, 5.26 and 5.27 of the High Court Rules. It seems Mr Hill has failed to heed Simon France J’s encouragement to seek legal advice.
[30] I do not consider further whether the technical pleadings defects are remediable. That is because I have reached the conclusion the proceeding must be struck out because the case is so “clearly bad” it should be precluded from going forward.23 It is appropriate, therefore, to go on to consider the challenge to the statement of claim based on r 15.1(1)(a) — that the pleading discloses no reasonably arguable cause of action.
[31] Mr Hill appears to seek judicial review of the Māori Land Court or Waitangi Tribunal. One of the five preambles in the statement of claim seeks declaratory judgment to determine whether the deed of sale in 1873 and subsequent certificate of title are “effectively inchoate instruments of conveyance”—
… by direction for Judicial Review of the law inclusive of provision for proceedings of Mandamus or such other direction made to Māori Land Court or Waitangi Tribunal.
As far as I am able to discern, the relevant pleadings are the following:
26.An urgency application filing to the Waitangi Tribunal to not make any finding that Hapuakorari Reserve as not in any other block of
23 Couch v Attorney-General, above n 13, at [33], citing W v Essex County Council [2001] 2 AC 592 at 601 per Lord Slynn.
Māori land other than in the Tararua Block was filed in August 2017 behalf claimants Wai 623,624 and 1490 but, was never registered.
27.Neither of the Waitangi Tribunal series of hearings in Wairarapa ki Tamaki-nui-a-rua Wai 863 and Porirua ki Manawatu Wai 2200 has been permitted to investigate and report on the inchoate Tararua Block Crown Grant Title claim due to policy directives and despite damning evidence within the Waitangi Tribunal conclave. I think that this is a blatant breach of Treaty of Waitangi principles and prejudicial to all claimants with a clear right of redress denied.
[33] Mr Hill submits the tribunal has been “‘constrained’ by Crown policy on boundary restrictions stated in report findings for either Wai 863 (Wairarapa) or Wai 2200 (Horowhenua). That is, Tararua Block is a ‘no go area’”. Mr Hill further submits the Māori Land Court cannot be of any help with Claim A for full compensation and return of the land. It seems, from written submissions that the application for review is in respect of the order made by the Native Land Court in 1881 and the fact it has not been complied with. But the relief, or order, that Mr Hill appears to seek is fundamentally unavailable. As a standing commission of inquiry under the Commissions of Inquiry Act 1908 the Tribunal is subject to the provisions of that Act and the Treaty of Waitangi Act 1975 under which the Tribunal is established.24 The Tribunal is independent of the Crown and Mr Hill has pleaded no basis for his assertion that a Crown “policy directive” is the reason the Tribunal has not inquired into the Hapuakorari Reserve. Mr Hill’s interactions with the Waitangi Tribunal in respect of the Hapuakorari Reserve are documented in a series of memoranda and emails included in evidence put before the Court on the strike-out application.
[34] In a memorandum dated 15 August 2017, Deputy Chief Judge Fox recorded that on 2 August 2017 Mr Hill, in his capacity as claims manager for Wai 623, 624 and 1490, sought directions from the Tribunal halting the forthcoming negotiations between Muaūpoko and the Crown in respect of the Hapuakorari Reserve, pending presentation of further evidence about its location.
(a)Judge Fox referred to the Tribunal’s release on 29 June 2017 of its report presenting its findings on the Muaūpoko claims. Submissions received from Mr Taueki concerned evidence heard during the
24 Treaty of Waitangi Act 1975, s 8(1).
Tribunal’s priority inquiry into Muaūpoko claims as did aspects of Mr Hill’s submissions. Judge Fox noted it was during the hearing phase of the Tribunal’s inquiry that evidence underpinning the claims was to be brought and tested. There were issues that could not be reported on fully, including Crown purchases outside the Horowhenua block and Judge Fox acknowledged, therefore, there were aspects of the Muaūpoko claims not yet fully heard. To the extent Mr Hill’s submission referred to evidence about blocks outside Horowhenua (within the Tribunal’s inquiry district) that evidence could be filed with the Tribunal and would be the subject of further inquiry.
(b)To the extent, however, the issues raised in the claims of Muaūpoko fell within the scope of the Tribunal’s priority inquiry, its position was that that inquiry was complete. Therefore, the Tribunal would not consider any further evidence including evidence brought by Mr Hill “in regard to Lake Horowhenua, the sacred lake Hapuakorari, or any other issue that re-litigates issues [the Tribunal had] already dealt with in [its] report”.
(c)Judge Fox’s Minute concluded with the following observation:
To the extent that Mr Hill seeks an urgent hearing on the Hapuakorari Reserve (and any settlement negotiations in respect of it), Mr Hill and his claimants should make an application for urgent hearing to the Chairperson of the Waitangi Tribunal in the proper manner.
[35]Judge Fox issued a further memorandum on 22 March 2018.
(a)Judge Fox recorded that Mr Hill filed an application for urgency with the Tribunal on 16 August 2017.
(b)Mr Hill was advised by the Registrar that he needed to provide further information in order for his application to be registered. The further information was not provided.
(c)Judge Fox repeated her directions given on 15 August 2017, including
that “Mr Hill should apply for urgency in the usual fashion if he has concerns with settlement negotiations in respect of Hapuakorari Reserve”.
[36] Mr Hill made a submission to the effect his request for an urgent hearing was not taken seriously enough by the Tribunal to be registered. That contention is contradicted by the documentary evidence before the Court. An email from an Assistant Registrar of the Tribunal to Mr Hill’s apparent counsel reported on the following communications between the Tribunal and Mr Hill with regard to his urgency application:
(a)An Assistant Registrar had telephoned Mr Hill and explained to him the process and application requirements he needed to meet.
(b)She followed up her call with an email.
(c)Mr Hill neither confirmed receipt nor communicated further with the Assistant Registrar.
(d)A different Assistant Registrar followed up with Mr Hill and re- emphasised to him the points earlier made. His urgency application required clarification before it could be considered for registration.
(e)Mr Hill’s revised application was awaited but no further or amended application was ever submitted.
[37] The short point is that the Tribunal must inquire into every claim properly submitted to it under s 6(1) of the Treaty of Waitangi Act.25 However, the statute imposes a limitation on the Tribunal’s jurisdiction in relation to historical treaty claims.26 The Tribunal also has the power to decide not to inquire further into claims that are trivial; that are frivolous, vexatious or not made in good faith; or where there is another adequate remedy that could reasonable be pursued.27
25 Treaty of Waitangi Act 1975, s 6(2).
26 Section 6AA.
27 Section 7.
[38] In summary, Mr Hill’s purported application for urgency was irregular. Notwithstanding the registry’s attempts to assist Mr Hill to regularise his application he failed to provide the further information sought. Against the backdrop of that omission Mr Hill cannot look to the High Court to compel the Tribunal to accommodate his irregular filing. In concluding my discussion of this aspect of Claim A, I note Mr Hill pleads no basis upon which a writ of mandamus (which secures the performance of public duties) could be issued to compel the Tribunal to accept his application; nor any basis for arguing the Tribunal is under a duty to register and determine a claim for urgency commenced by a procedurally defective application that was within Mr Hill’s power to regularise but which he failed to do.
[39] Accordingly, to the extent Mr Hill’s pleadings constitute an application to judicially review the Waitangi Tribunal for not inquiring into the Hapuakorari Reserve for the reasons Mr Hill recites, his claim cannot succeed.
A Wakatū-type claim?
[40] It appeared from Mr Hill’s written supplementary submissions that he apprehended his claim fell within the analytical framework adopted by the Supreme Court in its decision in Proprietors of Wakatū v Attorney-General.28
[41] Drawing analogies between his Claim A, and Proprietors of Wakatū v Attorney-General, Mr Hill argued the Supreme Court had made declarations in favour of the appellants in terms of their standing, the doctrine of laches, fiduciary obligations, the duties owed and, of particular relevance to Claim A, remitted the claim to the High Court for determination on issues of liability, defences and relief, which the Supreme Court had been unable to determine in the absence of primary findings of fact in the lower courts and in the absence of full submissions.
[42] Mr Melvin submitted that if Mr Hill does have a “Wakatū-type case”, a new set of proceedings is required. Any such claim would need to be advanced on the basis of breach of trust. Further, if Mr Hill brought such a claim the Crown would likely raise matters of standing, limitation and laches. I expect the Crown would also require
28 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423.
a clear statement of the nature of the trust giving rise to the fiduciary obligations that Mr Hill would contend had been breached.
[43] I am troubled by the prospect that any defendant should be vexed by allowing a claim exhibiting numerous and fundamental deficiencies to proceed. But I am also troubled by the prospect of keeping Mr Hill “from the judgment seat” if he does have a potentially successful claim albeit poorly pleaded.29 Mr Hill may very well have a “Wakatū-type” claim. It is not for me to say. The uncontested fact is that while the deed of sale records the Crown’s agreement to exclude from its purchase of the Tararua Block, the Hapuakorari Reserve, that did not happen. As Mr Melvin acknowledged, the difficulty from the start has been in locating the land. The Waitangi Tribunal reported:30
Some claimants were particularly concerned about the fate of the Hapuakorari reserve, which was promised but never surveyed or properly set aside in the Tararua purchase. Its present whereabouts is unknown.
…
Certainly, the reserve named Hapuakorari was located in the Tararua block, and — it seems very likely — not inside our inquiry district.
[44] The Waitangi Tribunal’s report, Horowhenua: The Muaūpoko Priority Report, records the Crown’s intention at the time to negotiate a substitute piece of land in the Tararua Ranges to be returned to iwi, as part of treaty settlement negotiations with Ngāti Kahungunu, Rangitāne and Muaūpoko. But Mr Hill does not want land in substitution for the taonga that is the Hapuakorari Reserve. In that regard, I also note the observation made by Elias CJ in Proprietors of Wakatū v Attorney-General to the effect “the existence of a potential avenue for political redress cannot affect the claim in equity”.31
[45] The majority decision of the Supreme Court in Proprietors of Wakatū v Attorney-General was that the Crown owed fiduciary duties to reserve 15,100 acres
29 See Innes v Ewing (1986) 4 PRNZ 10 at 19–20, where Eichelbaum J said: “It is well recognised that since it is a strong step to keep the plaintiff from the judgment seat, the jurisdiction is not exercised except in plain cases …”
30 Waitangi Tribunal Horowhenua: The Muaūpoko Priority Report (Wai 2200, 2017) at [3.3.4].
31 Proprietors of Wakatū v Attorney-General, above n 28, at [386] per Elias CJ.
for the benefit of the customary owners.32 My understanding of the decision is that the Crown was held to owe fiduciary obligations because the circumstances in which land was reserved for the benefit and intended retention of the Māori proprietors “set up conditions of dependence and obligation in which the Crown was under a duty … [to observe] the terms which made it equitable for their land to be alienated”.33 While it was not suggested there is a general fiduciary duty at large owed by the Crown to Māori, the Chief Justice held that —34
… where there are pre-existing and independent property interests of Maori which can be surrendered only to the Crown (as under the right of pre- emption) a relationship of power and dependency may exist in which fiduciary obligations properly arise.
[46] I have considered whether there is any reasonable possibility Mr Hill may be able to formulate an arguable claim. In Couch v Attorney-General, the Supreme Court said:35
It is a commonplace of the strike-out jurisdiction that the Court will consider not only the basis upon which the claim is presently pleaded but also any other basis upon which the claim might be pleaded.
[47] There was material before the Court in Couch v Attorney-General that led the Court to the view the claim could be pleaded in a way that would give rise to an arguable case.36 While the policy arguments against the imposition of a duty of care in that case had force, and policy determinations could finally be made on strike-out applications in cases of that kind, it was not an appropriate case in which to do so and the proceeding was not struck out but permitted to continue to trial.
[48] On reflection, I do not regard the outcome in Couch v Attorney-General to be analogous to the circumstances of Mr Hill’s claim. In Couch v Attorney-General the Attorney-General applied to strike out the actions against the Crown on the ground no duty of care was owed to the plaintiffs. Ms Couch had alleged negligence and the legal argument centred around the existence of a duty of care. The point is that
32 At [1].
33 At [388] per Elias CJ.
34 At [391] per Elias CJ.
35 Couch v Attorney-General, above n 13, at [123].
36 At [124].
Ms Couch’s statement of claim got off the ground, although the existence of a duty of care and the availability of exemplary dangers were to be contested.
[49] Mr Hill’s statement of claim is altogether different. It is so poorly pleaded it is not amenable to repair. It is not possible, for example, to identify causes of action that, with amendment, might be saved. It fails to inform the defendants of the case they must meet. And it fails to state the facts necessary to formulate a cause of action. The statement of claim must be struck out.
[50] It will be for Mr Hill to consider whether he attempts to bring his “Wakatu- type” claim via a properly pleaded statement of claim. Alternatively, if Mr Hill seeks a declaration as to the status of Māori land, questions of status being “quintessentially a matter for the Māori Land Court and the Māori Appellate Court”, Mr Hill might consider filing any such application in that jurisdiction.37
Claim B
[51] Mr Hill’s statement of claim filed in CIV-2017-485-001018/B names four defendants: the Crown, the Attorney-General, the Māori Trustee and Tararua District Council. This statement of claim consists of 15 paragraphs and, while considerably briefer than the statement of claim in Claim A, adopts the same discursive style. The statement of claim tends to read as a narrative interspersed with allegations but without division into causes of action or relief sought in respect of any cause of action, or at all. The intitulement specifies 11 enactments under which the claim is brought and then states:
IN THE MATTER of a Declaratory Judgment order to determine status of land by direction for Judicial Review of the law inclusive proceedings in Mandamus to Mangatainoka 1BC and in particular Mangatainoka Blocks titled 1BC2B2, 1BC2B3 and 2BH2D.
[52]I set out the remaining 15 paragraphs in their entirety:
1.The Plaintiff claims that Mangatainoka 1BC and subsequent alienation or partitions of this Block including 1BC2B3 have been made with numerous errors prejudicial to the Plaintiff and affected parties.
37 See Te Ture Whenua Maori Act 1993, s 131; and Warin v Registrar-General of Land (2008) 10 NZCPR 73 (HC) at [139].
2.Research into partitions identifies a number of areas within the block have not been alienated at all or are just consumed into another block without consideration or informed consent.
3.Block 1BC2B3 is in the proprietor ship of the Maori Trustee as Maori Freehold Land and who converted the block without regard to prior legislative restriction on alienation per incuriam or without consent of beneficial owners in 1991. Also prior to Te Ture Whenua Maori Land Act 1993 assent.
4.The block was administered in trust from 1956 and an order of Freehold title together with Trust Deed and appointment of Advisory Trustees over the land was made under the provisions of the Maori Affairs Act 1953.
5.There have been numerous breaches in trust identified in a report filed in this proceeding by Fredrick Hill including obtaining judgment ex – officio in fraud against the Plaintiff in the High Court at Palmerston North 23 February 2015.
6.Criminal charges are pending in the District Court relating to theft and stealing or a trespass of goods by Maori Trustee agents in November 2016.
7.The District Court refused to provide remedy for disclosure of the trust order over the land despite application by the Plaintiff prior to hearing which would have revealed an immediate remedy that the trust order exists over another block 1BC2B2 and that the obligation to consult Advisory Trustees was not considered nor in fact were any Advisories holding office to lease the land.
8.The Maori Trustee has refused to account for monies obtained from leasing activity since 1956 to beneficial owners.
9.Block 1BC has been before the Supreme Court in 1914. Inter alia confirming in law instances of fraud and that alienation cannot take effect by will. The question is where an Executor is applied by legal process or where the per autre vie have not been consulted.
The unalienable block of Keepa te Rangihiwinui
10.Block 2BH2D is the subject of alienation without consent or in neglect of restrictions already in place by order of the Native Land Court made at the request of the owner Keepa te Rangihiwinui.
11.The land was afterward conveyed ultra vires and per incuriam by the Maori Land Board. Most definitely without consent or representation of parties or posthumously who may be affected including the Plaintiff.
12.Part of the land has been converted by the Tararua District Council and is in use as a refuge tip.
13.There is no evidence that conveyance to the District Council for use has been given consent by any party who may be affected or that lawful title was obtained.
14.The Plaintiff relies on the evidence already filed and any other evidence the court can direct parties to disclose.
15.All blocks were effectively Crown Grants and were awarded with restrictions to Kaitiaki but it is evident that the Crown Grant titles have been replaced in neglect with another form of title or converted without consent of the Plaintiff or any other affected parties.
Applications to strike out
[53] All defendants have filed an application to strike out the statement of claim or, alternatively, to be removed from the proceeding. They advance broadly similar grounds in support of their applications. The grounds advanced by the Crown are materially similar to those advanced in relation to Claim A, as summarised at [20]– [24]. In addition, the Māori Trustee has provided eight pages of detailed particularised grounds for striking out the claim, to which I will return in the course of my analysis. Finally, the Tararua District Council emphasises that the claim remains unintelligible despite the directions of Simon France J and it is not clear what the plaintiff is seeking to challenge or why the defendants have been named.
Mr Hill’s opposition to strike-out
[54] Mr Hill filed submissions and affidavit evidence providing further detail concerning the alienations of land from Mangatainoka 1BC and 2BH. Mr Hill refers in his submissions to a wide range of matters including that an affidavit filed in support of one of the defendant’s applications to strike out reveals the deponent is in “typical ignorance of perjury”.
[55] I understand Mr Hill’s essential position in respect of Mangatainoka 1BC2B3 to be that he hoped to remove the Māori Trustee for breaches of trust dating back to 1956. The breaches are said to include leasing “without Advisories in office”, misrepresentation and unaccounted trust funds. The Māori Trustee’s position is that these matters are properly referred to the Māori Land Court. In response, Mr Hill submits the argument is ironic given the Māori Trustee went “all out to conceal relevant matters” to avoid that jurisdiction in the proceedings concerning the cancellation of Mr Hill’s lease, referred to above at [4]. Mr Hill submits that “[t]o put it in a sentence, the trust, the land and the owners are involved in a shambles exacerbated by poor administration”. He says the Māori Trustee has been paid in
excess of $500,000.00 in fees and a further $40,000.00 has been applied to gorse control, which should have been eradicated more than 50 years ago. The statement of claim does not specify the relief sought but at paragraph 21 of his submissions Mr Hill says: “There exists evidence that indicates deceit, mistake, errors and concealment amounting to fraud the court is asked to determine.”
[56] In respect of Mangatainoka 2BH2D, Mr Hill says his claim focuses on the activities of Ikaroa Māori Land Board operating in ignorance of prior Native Land Court orders, or a trust and duty of care owed by the Crown in alienating land ultra vires.
[57] Mr Hill cites evidence given to the Waitangi Tribunal in 2015 in relation to Wai 2200, which he says shows that 2BH2D is still in the name of Keepa te Rangihiwinui, who appears to be an ancestor of Mr Hill. Mr Hill refers to an order of the Native Land Court in 1887 that he says gave all the land in 2BH “unalienable status”. He then describes how a portion of that land (2BH2C) was sold ultra vires in about 1908 because it violated s 14 of the Maori Land Laws Amendment Act 1903 and the Native Land Court order. Mr Hill seems to say that in 1912 a further 80 acres of land (2BH2D) was gifted to the Ikaroa Maori Land Board by Wiki Keepa, who appears to be a relative of Keepa te Rangihiwinui. Mr Hill seems to dispute the validity of this gifting. The land eventually found its way into the possession of the Tararua District Council. The thrust of Mr Hill’s submissions appears to be that the Crown has a fiduciary obligation to restore this land to its rightful owners.
[58] Under a heading “Judicial Review”, Mr Hill submits the Court is required to determine the appropriate remedy in respect of the Tararua District Council’s wrongful alienation or conversion of land without consultation, consent or compensation. In this part of the submissions Mr Hill argues his causes of action include breaches of the principles of the Treaty of Waitangi, breaches of the Crown’s fiduciary obligations to Māori, negligence and breaches of trust. Mr Hill submits:
From the facts before the court it can make Declaratory Judgment, direct for Judicial Review, make such other orders or directions for the causes raised to be heard in greater detail along with an order to stay proceedings to Bankrupt the Plaintiff at [CIV-2016-454-85] High Court Wellington pending the
outcome of these proceedings or fraud allegations currently with the Court of Appeal 622/2017 or Supreme Court 96/2018.
Efforts to resolve these matters by interested parties in the Maori Land Court have been delayed due to hearsay pleadings.
[59]Finally, Mr Hill sets out in his submissions the orders and directions he seeks:
55.Dismiss the applications to strike out by Respondent parties.
56.Declare that the partitioning of Mangatainoka 1BC2B3 ordered in 1914 by the Native Land Court has not been complied with.
57.Declare that the Certificate of Title issued in 1923 is a mistake or in error and not that which was ordered by 1914 partition order.
58.Declare that the Maori Trustee is not the ‘Registered Proprietor’ and or ‘Absolute Owner’ of the land titled Mangatainoka 1BC2B3 inter alia resulting from those errors, mistakes or otherwise ascertained more serious pleadings.
59.Declare that the land Mangatainoka 1BC and subsequent partitions require intrinsic examination as to the accuracy of survey and by association accuracy as to tenure.
60.Declare that titles obtained from the Ikaroa Maori Land Board at Mangatainoka 2BH from 1900 were ordered ignorant of prior Native Land Court orders and restrictions.
61.Declare that land was sold ultra vires at Mangatainoka 2BH and subsequent 2BH2, the parent block ordered in favour of Keepa te Rangihiwinui as unalienable in 1887.
62.Declare the Plaintiff by way of succession or trustee has sufficient standing to bring the causes of action made by claims filed to date.
63.Declare that the Tararua District Council has not followed correct procedure and statutory provisioning to acquire the land it now uses or leases at Mangatainoka 2BH2D.
64.Declare that the Crown has been negligent in dealing with the lands detailed and as a treaty partner and trustee in land granted in favour of Maori so named whereby it owes a duty of care and has a fiduciary obligations and duties that have been breached.
65.Such other orders or directions the court may decide.
Discussion
[60] The defendants challenge the statement of claim in respect of its form and substance. Because of the degree of overlap in the grounds the defendants rely upon, it is convenient to analyse the applications for strike-out by reference to these two
heads of challenge rather than by reference to the specific grounds in each of the three applications.
Pleading defects
[61] It would appear from the statement of claim itself that complex facts underlie Mr Hill’s grievance. But that may be an impression created by Mr Hill’s extensive particularisation of evidence. In this regard the pleading unambiguously crosses the line between relevant detail, which r 5.26(b) requires, and extensive evidence, which throws upon a defendant the burden of trying to discern the legal basis for the claim. Although lay litigants may be afforded some latitude in having to comply with technical rules,38 they must not stray into setting out the evidence relied upon.39
[62] Although the point was not taken by the Crown, a further pleading defect is that in a proceeding instituted against the Attorney-General, the statement of claim must give particulars of the government department or officer or employee of the Crown concerned.40
[63] Mr Melvin submitted the Crown is sensitive to Mr Hill’s unrepresented status. Mr Melvin was right to suggest the defendants cannot insist upon pleadings of the same quality as if Mr Hill was legally represented. I am very conscious of that impediment for Mr Hill as he attempts to advance his claims. But the interests of justice also require the defendants to know the nature of the claims made against them. It is not obvious from the statement of claim what causes of action are pleaded against each of the defendants. It might be inferred from the fact there is more than one defendant, and from the fact the defendants are referred to in the body of the statement of claim, that Mr Hill considers he is entitled to a different form of relief in respect of each defendant and in respect of different causes of action against each. But as can be seen from the statement of claim reproduced above at [52], these necessary requirements of a pleading are not met.
38 See, for example, O’Neill v Attorney-General [2018] NZHC 1073 at [30].
39 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 22, at [84].
40 High Court Rules 2016, r 5.26(d).
[64] A “cause of action” is “[a] factual situation, the existence of which enables one person to obtain from the Court a remedy against another person”.41 The defendant and the Court are entitled to be informed of the legal basis for Mr Hill’s claim for relief against them in clear terms. The statement of claim wholly fails in this respect. It is confusing and, in my view, creates real prejudice for the defendants who ought not to be prejudiced in this way.
[65] In summary, the statement of claim is defective in its inconsistency with what the Court of Appeal described as the “key principles” of a statement of claim:42
(a)Sufficient particulars have not been given to enable the defendants to be fairly informed of the case to be met.
(b)While adequate particulars are required, the statement of claim strays into setting out the evidence relied upon.
(c)Separate causes of action are not separately stated.
(d)The pleading does not set out all the elements of the cause of action (whatever that is).
(e)No relief is pleaded, much less in respect of each cause of action against each defendant.
[66] At this point it might be expected the Court would consider whether or not the defects were remediable and whether Mr Hill should file an amended and complying statement of claim. However, I have found that the defects in form are overtaken by the defects in substance. It is therefore not necessary to address further the amenability of the statement of claim to repair.
41 Pearce v Accident Compensation Corporation (1991) 5 PRNZ 297 (HC) at 302, citing Letang v Cooper [1965] 1 QB 232 (CA) at 242.
42 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 22, at [84].
Substantive defects
[67] I now address the contention that Mr Hill’s pleading discloses no reasonably arguable cause of action against any defendant.
[68] Mr Hill’s allegation that there have been errors in the alienation and partitioning of Mangatainoka lands do not disclose any cause of action against the Māori Trustee. The affidavit evidence of Mr Watkins shows the Māori Trustee’s only involvement with the Mangatainoka lands is as Māori Land Court appointed agent, and subsequently Māori Land Court appointed trustee, of Mangatainoka 1BC2B3. Free-holding of Māori customary land, and subsequent partitioning of Māori freehold land, is carried out by the Māori Land Court not the Māori Trustee. Consequently, as Mr Shaw submits, the Māori Trustee had no role or involvement in these matters. In fact, the partition creating Mangatainoka 1BC2B3 occurred prior to the establishment of the Māori Trustee.43
[69] Further, the High Court lacks jurisdiction to investigate title to Māori customary land and determine interests in Māori customary title.44 While the High Court has jurisdiction “to determine any question relating to the particular status of land” under s 131(3) of the Te Ture Whenua Maori Act it does not have “a parallel jurisdiction insofar as the making of status orders is concerned”.45 This provides a complete answer to the case against the Crown and the Tararua District Council with respect to Mangatainoka 2BH2D. Mr Hill’s account of the history seems only to raise alleged errors in relation to the freeholding of that land. These are matters for the Māori Land Court.
[70] I accept also that, to the extent Mr Hill seeks declaratory relief under the Declaratory Judgments Act, that procedure is inappropriate where a proceeding raises complex and detailed questions of fact, mixed questions of law and fact, and makes allegations of fraud.46
43 The Māori Trustee was established by s 3 of the Māori Trustee Act 1953.
44 Te Ture Whenua Maori Act 1993, s 132(1).
45 Jensen v Registrar-General of Land [2013] NZHC 3525 at [30]–[33], citing Warin v Registrar- General of Land, above n 37, at [139].
46 New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA); Ambrose v Attorney-General [2012] NZAR 23 (HC) at [51]; Hojsgaard v Chief Executive of Land
[71] The claims that the Māori Trustee converted Mangatainoka 1BC2B3 and the Tararua District Council converted Mangatainoka 2BH2D are also misconceived. The tort of conversion is concerned with the denial of possessory interests in goods, not land.47
[72]I also accept the Māori Trustee’s further arguments:
(a)The evidence shows the plaintiff is not a beneficial owner of Mangatainoka 1BC2B3. He therefore has no standing to seek declaratory or other relief for alleged claims of breach of trust or failures to account to the beneficial owners of Mangatainoka 1BC2B3. The High Court has rejected the plaintiff’s suggestion the Māori Trustee owes any fiduciary duties to the plaintiff with respect to Mangatainoka 1BC2B3.48 The Māori Land Court refused an application to confirm a sale of five shares to the plaintiff. Mr Hill attempted to file a notice of appeal against that decision some 15 months after it was delivered but the notice of appeal was not accepted for filing.
(b)Notwithstanding Mr Hill’s rights of appeal with respect to the lease litigation were exhausted after both the High Court and Court of Appeal refused to grant leave for a second appeal, Mr Hill resurrects the issue in his statement of claim. The matters determined in the lease litigation are res judicata. Consequently, to the extent the statement of claim seeks to challenge the District Court’s decision, or seeks relief in respect of that decision, the pleading is an abuse of the Court’s process.
(c)Mr Hill pleads that the District Court judgment was obtained by fraud. Mr Hill also pleads that statements reproduced in his affidavit were maliciously concealed by the Māori Trustee. A plaintiff seeking to re-
Information New Zealand [2018] NZHC 750, [2018] 3 NZLR 99 at [76]; and Kamo v Minister of
Conservation, above n 17, at [40]–[41].
47 Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [12.3.01].
48 Hill v Māori Trustee, above n 3, at [56].
open a judgment based on an allegation of fraud is required to fully and precisely particularise the alleged fraud and show an evidential foundation amounting to a prima facie case of fraud.49 Mr Hill has not met either of these requirements. Relevantly, neither the High Court nor the Court of Appeal were convinced that a miscarriage of justice arose from the District Court decision.
[73]For the foregoing reasons the statement of claim must be struck out.
Result
[74] The first and second defendants’ application to strike out the statement of claim in CIV-2017-485-1018A is granted. The Crown (that is the first and second defendants) is entitled to 2B scale costs. I make no allowance for second counsel.
[75] The defendants’ application to strike out the statement of claim in CIV-2017- 485-1018B is granted. Having succeeded the defendants are prima facie entitled to 2B scale costs.
[76] I reserve costs for determination following receipt of brief memoranda. Any party claiming costs should file and serve within 10 working days of the date of this judgment, a memorandum not exceeding five pages, to which may be annexed a single page setting out allowance steps, time allocation and daily recovery rate.
[77] If he opposes costs Mr Hill is to file and serve his responses within 10 working days of service on him of the defendants’ memoranda. With regard to Claim B, Mr Hill may, if he prefers, file a single (composite) memorandum in response to all defendants. Any such composite memorandum is not to exceed eight pages and it must be structured so as to clearly respond separately to each of the three applications for costs (the Crown’s, and third and fourth defendants’).
49 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28]–[33].
[78] The defendants may file memoranda strictly in reply within five working days of service of any memorandum filed by Mr Hill.
Karen Clark J
Solicitors:
Crown Law Office, Wellington
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