Jenkins-Davies v Attorney-General

[2018] NZHC 2742

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000161 [2018] NZHC 2742

BETWEEN

RHYS JAMES JENKINS-DAVIES

Plaintiff

AND

ATTORNEY-GENERAL First Defendant

AUCKLAND COUNCIL Second Defendant

Hearing:	19 October 2018
Appearances:	Plaintiff in person NE Copeland for First Defendant DCE Nicholson for Second Defendant
Judgment:	23 October 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 23 October 2018 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland. Auckland Council, Legal Services.

Copy to:  Plaintiff.

JENKINS-DAVIES v ATTORNEY-GENERAL [2018] NZHC 2742 [23 October 2018]

The case

[1]      On 5 February 2018, Mr Jenkins-Davies filed an application in this court. The application   appears   to   be   for   an   injunction,   or   perhaps   judicial   review.

Mr Jenkins-Davies was, and remains, self-represented.

[2]      The defendants, the Attorney-General and Auckland Council, apply to strike out the application. They note, correctly, a Court may not make an injunction against the Crown.1  And, they contend Mr Jenkins-Davies’ application is an abuse of process irrespective of its nature.

Background

[3]      On 23 November 2017, Detective Poore served Mr Jenkins-Davies with a trespass notice relating to Little Shoal Bay.

[4]      On 27 January 2018, the Prime Minister was anticipated to attend a nearby event.  A member of the public contacted Police.  She or he said Mr Jenkins-Davies had asked them if they wanted to see the Armed Offenders arrive as he had a firearm in his boat and car, and as much “firepower” as the Police.

[5]      Police spoke to Mr Jenkins-Davies. He said he had a defence to trespass as he owned a mooring at Little Shoal Bay. Inquiries refuted that claim. Mr Jenkins-Davies was arrested and charged with trespass.

[6]      Mr Jenkins-Davies’ application relates to this prosecution.  But, it is common ground Mr Jenkins-Davies has since pleaded guilty to the charge and been discharged without conviction in relation to it. So, not only is an injunction not available against the   Crown,   no   prosecution   exists   to   which   injunctive   relief   could   relate.

Mr Jenkins-Davies accepted as much at the hearing.  He said his real complaint is the trespass notice.  Mr Jenkins-Davies argues the notice is unlawful, and the product of malice or bad faith on the part of the Council, Police, or both.

Principle

[7]      Principle in relation to a strike out application is well known.  A Court may strike out all or part of a pleading if it discloses no reasonably arguable cause of action; is likely to cause prejudice or delay; is frivolous or vexatious; or otherwise an abuse of process.2

[8]      Courts are reluctant to dismiss claims without a trial, so strike out is exercised sparingly. A strike out application proceeds on the assumption pleaded facts are true unless self-evidently speculative or false.   The cause of action must be so clearly untenable it cannot succeed.

Analysis

[9]      I am satisfied the defendants’ strike out application must be granted.

[10]     First,  Mr Jenkins-Davies’  papers  do  not  identify  facts  to  support  the proposition the trespass notice is unlawful, or issued maliciously or in bad faith. Moreover, Mr Jenkins-Davies has not identified evidence—still less filed any—to support these propositions.  His application is without cause, and speculative.

[11]     Second, Mr Jenkins-Davies’ guilty plea to a charge of trespass in relation to Little Shoal Bay sits awkwardly with the contention the associated trespass notice ought not have issued.

[12]     Third, the Attorney-General and Auckland Council filed affidavit evidence. Their evidence explains why the trespass notice was issued.   It is unnecessary to rehearse it. It is sufficient to observe the decision to issue a trespass notice was based on Mr Jenkins-Davies’ behaviour in the area, and not taken lightly.

[13]     It follows Mr Jenkins-Davies application could not succeed.  Moreover, his application is an abuse of process because it constitutes a collateral attack on the now- concluded prosecution; one he implicitly accepted was rightly brought.

[14]     For completeness, I have not overlooked the material Mr Jenkins-Davies tendered at the hearing, which can be read as suggesting a mooring licence was recently transferred to him in the area.  However, this material cannot retrospectively impeach the decision to issue a trespass notice.

Result

[15]     Mr Jenkins-Davies’ application is struck out.

[16]     There is no obvious reason why he should not be liable for 2B costs. I so order.

……………………………..

Downs J