HT v Family Court Registrar Kaikohe

[2024] NZHC 2999

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2024-488-93

[2024] NZHC 2999

IN THE MATTER

BETWEEN

of an appeal against a decision of the Family Court

HT
Appellant

AND

FAMILY COURT REGISTRAR KAIKOHE

NEW ZEALAND CENTRAL AUTHORITY

Respondents THE CROWN

THE COURTS

COMMISSIONER OF POLICE

Interested Respondents HH

MĀORI HAPŪ WHĀNAU TĀNGATA WHENUA

Interested Parties

Continued:…2/

Hearing:	On the papers
Judgment:	15 October 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 15/10/2024 at pm

Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

T v FAMILY COURT REGISTRAR KAIKOHE [2024] NZHC 2999 [15 October 2024]

Continued:..

UNDER

IN THE MATTER

the Independent Jurisdiction of the Court

of a review of processes and decisions that contravene tikanga and inherent rights

BETWEEN

REHUA

Applicant

AND

KING CHARLES III THE CROWN

MINISTRY FOR CHILDREN EMPLOYEES MINISTRY FOR CHILDREN CHIEF EXECUTIVE FAMILY COURT JUDGES

NEW ZEALAND POLICE OFFICERS

COMMISSIONER OF POLICE
Respondents

UNDER

IN THE MATTER

the Independent Jurisdiction of the Court

of an appeal against a decision of the Māori Appellate Court

BETWEEN

K H AND ANOR

Applicants

AND

PTW HOLDINGS LIMITED AND JIETAO LI

STEVEN KHOV AND KIERAN JONES
Respondents

UNDER

IN THE MATTER

the Independent Jurisdiction of the Court

of a review of processes and decisions that contravene tikanga and inherent rights

BETWEEN

NGAWATI IHAKA TAIKATO

Applicant

AND

KING CHARLES III

Respondent

Continued:.. UNDER

IN THE MATTER

the Independent Jurisdiction of the Court

of a review of processes and decisions that contravene tikanga and inherent rights

BETWEEN

REHUA

Appellant

AND

KING CHARLES III

THE CROWN

Respondents

Introduction

[1]        The Registrar has referred the following matters to me pursuant to r 5.35A of the High Court Rules 2016:

(a)a notice of appeal against a decision of the Family Court ordering the return of Mr T’s child to Australia;

(b)an application for an interim injunction;

(c)a memorandum; and

(d)three applications for review.

[2]        Each document filed appears to be brought by and against different parties. The parties are named below:

(a)Notice of appeal:

(i)Applicant: Mr T.

(ii)Respondents: Family Court  Registrar  Kaikohe,  and  the  New Zealand Central Authority.

(iii)Interested parties: Mr T’s ex-partner, the Crown, the courts, the Commissioner of Police, and Mr T’s broader familial group.

(b)Application for interim injunction:

(i)Applicant: Rehua, a star associated with summer and the eldest child of Rangi and Papa. T H is recorded as the agent of Rehua.

(ii)Respondents: King Charles III, the Crown, employees of the Ministry of Children, the Chief Executive of the Ministry of Children, Family Court Judges, New Zealand police officers, and the Commissioner of Police.

(c)Memorandum in support (12 August 2024):

(i)Appellant: K H and Anor.

(ii)Respondents: PTW Holdings Ltd and its director and liquidators of Takimano Ltd, Steven Khov and Kieran Jones.

(d)Application for review (18 August 2024):

(i)Applicant: Ngawati Ihaka Taikato.

(ii)Respondent: King Charles III.

(e)Application for review (20 August 2024):

(i)Appellant: Rehua (with Mr H identified as the agent of Rehua).

(ii)Respondents: King Charles III, and the Crown.

(f)Application for review (21 August 2024):

(i)Appellant: Rehua (with Mr H identified as the agent of Rehua).

(ii)Respondents: King Charles III, and the Crown.

[3]        Despite the differences between the named parties in each filed document, the notice of appeal states that each document was filed to support the proceedings initiated by Mr T on 16 September 2024. I therefore consider it appropriate to deal with each document/application in one judgment and to adjust the intituling as required.1

Jurisdiction

[4]Rules 5.35A and 5.35B of the High Court Rules provide:

1      Dunstan v District Court at Hamilton [2023] NZHC 2703 at [2].

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1)        This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)        The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)However, the Registrar may,—

(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

5.35B Judge’s powers to make orders and give directions before service

(1)This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.

(2)The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—

(a)the proceeding be struck out:

(b)the proceeding be stayed until further order:

(c)documents for service be kept by the court and not be served until the stay is lifted:

(d)no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).

(3)        Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

(4)        A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

(5)        See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.

[5]        The power under r 5.35B must be exercised sparingly and only in the clearest of cases.2 A claim should be struck out when pleadings are so unintelligible that it would be inappropriate to require a response to the pleadings; and when it is apparent from the nature of the claim that it could not be re-pleaded in a manner that would identify an appropriate cause of action.3

[6]        Claims that are clearly an abuse of process, including attempts to judicially review or collaterally challenge judgments of the court,  can be struck  out under      r 5.35B.4 Genuinely brought claims, even if misconceived or legally untenable, must not be struck out under r 5.35B.5 Proceedings can be struck out where there is a reasonable basis to believe that the appellant is seeking to use the court processes for an ulterior or improper purpose.6

Analysis

[7]        The notice of appeal disputes the order of the Family Court Registrar saying that it was “based on hostile and adversarial application of English Law and the Westminster system.” Mr T disputes the application of a legal system derived from the Westminster system and English law upon “māori hapū whānau tāngata whenua”, regarding such application as “abusive and genocidal” and “against the nature of things”. The notice of appeal states that the appeal is based on tikanga and should be referred to the Māori Appellate Court.

[8]        The interim injunction seeks urgent orders releasing people of Māori descent working as Family Court Judges, police officers, and for the Ministry of Children from their employment. Orders are also sought that would enable tāngata whenua to carry out their own hui haumaru and well-being for whānau tamariki.

2      Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [15].

3      Sixtus v Ardern [2022] NZHC 1161 at [11].

4      Power v The Court of Appeal [2022] NZHC 25 at [5]; and Smith v Māori Land Court [2022] NZHC 1028 at [17].

5      Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board, above n 2, at [13].

6 At [17].

[9]        The memorandum and applications filed in support focus on issues constitutional in nature and challenge Crown  interest  in  land;  the  role  of  the  New Zealand  Police,  the  courts  and  Members  of  Parliament  “as  agents  of  King Charles III”; “the handling of whānau  tamariki  mokopuna  by  agents  of  King Charles III, the Crown and Family Court”; and “the inherent rights of māori hapū whānau tāngata whenua”.

[10]      Although I have no doubt that the return of his child to Australia has impacted Mr T, challenging that decision does not appear to the be focus of the appeal. None of the filed documents present valid grounds of appeal challenging the Family Court decision and resulting order. Instead, the filed documents challenge the application of New Zealand’s legal system to Mr T and his wider familial group.

[11]      There are clear issues with standing. Three of the named applicants were not parties to the Family Court proceeding,7 and accordingly have no standing to appeal the Family Court’s decision.8 Further, I consider that the respondents and interested parties have been improperly identified in this proceeding. The appropriate respondent in an appeal against a Family Court decision, remains the opposing party from the Family Court. The inclusion of King Charles III,  the  Family  Court, Family Court Judges, companies and liquidators seeming unconnected with the Family Court decision, Crown entities, and government employees as respondents supports striking out this proceeding as an abuse of process.9 It would be inappropriate to require those parties to respond to the proceeding.

[12]      The content of the documents filed are an attempt to use the appeal to collaterally challenge the jurisdiction and decision making of the Family Court and to challenge more broadly New Zealand’s legal system, official bodies, and constitution. The filed documents demonstrate that Mr T, and his supporters named in this proceeding, are seeking to use the court process for an ulterior and improper purpose.

7      These applicants being Ngawati Ihaka Taikato, K H and T H.

8      Care of Children Act 2004, s 143(2).

9      Proceedings brought against Judges are likely to be struck out because Judges have immunity from being sued under civil law for acts done in their official capacity. See Dunstan v Attorney-General [2021] NZHC 1670.

Result

[13]The notice of appeal is struck out.

[14]The application for interim injunction is struck out.

[15]The three applications for review are struck out.

Wilkinson-Smith J