Kaihau v South Waikato District Council HC Rotorua Ap42/00

[2001] NZHC 377

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY AP42/00

BETWEEN W T R KAIHAU
Appellant

AND SOUTH WAIKATO DISTRICT COUNCIL
Respondent

Date of hearing: 11 May 2001

Counsel: Whiti Te Ra Kaihau in person
Jennifer Stairmand for Respondent

Date of judgment: 11 May 2001

Date of reasons for judgment: 15 May 2001

REASONS FOR JUDGMENT OF CHAMBERS J

[1] Whiti Te Ra Kaihau was found guilty in the District Court that he was the owner of a male bull terrier dog that attacked a person, contrary to s 57(5) of the Dog Control Act 1996. He appealed against conviction. Anderson J dismissed that appeal.

[2] Mr Kaihau now seeks leave to appeal to the Court of Appeal. Although Mr Kaihau does not recognise statutes made by the New Zealand Parliament, the application must be considered as having been made under s 144 of the Summary Proceedings Act 1957. Under that section, Mr Kaihau must show that there is a question of law involved in the appeal and that that question is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[3] Mr Kaihau’s intended appeal seeks to challenge the sovereignty of the New Zealand Parliament. He says he does not recognise the New Zealand Parliament and its powers. He is, he says, ‘a constituent of the State Government of Kahukoka, Awhiti-Auckland’, which is an independent state. He accordingly wishes to challenge that he is subject to the Dog Control Act, or indeed any statute made by the New Zealand Parliament.

[4] Mr Kaihau presented a similar argument to Anderson J, who dismissed it. This issue is not one which meets the s 144 test, as it has no chance of success. The Court of Appeal and other courts have considered numerous challenges to Parliamentary sovereignty and on every occasion have rejected them. For just a small sample, see New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA), Warren v Police HC HAM AP 133/99 9 February 2000, Manukau v Ministry of Fisheries HC AK M 984/97 29 July 1998, Wheoki v Attorney-General HC AK CP 148/96 21 June 1996, R v Pairama (1995) 13 CRNZ 496 at 499, Berkett v Tauranga District Court [1992] 3 NZLR 206 at 214, R v Waetford CA 406/99 2 December 1999 at para [7], and Manukau v Attorney-General HC AK M 259-SW00 19 July 2000.

[5] Mr Kaihau is well aware of the Court’s inability to deal with challenges to Parliamentary sovereignty. It appears from Durie J’s judgment in Kaihau v New Zealand Police HC PN AP 5/2000 11 May 2000 that Mr Kaihau presented exactly the same argument in that case. On that occasion, Mr Kaihau was appealing from convictions for speeding, failing to produce a driver’s licence without delay, and driving without a current driver’s licence. In that case too Mr Kaihau presented an argument based on his views of Maori sovereignty and of his status as a citizen of Kahukoka. Durie J dealt with Mr Kaihau’s constitutional argument. He rejected all Mr Kaihau’s points. Durie J ended his judgment with an exhortation to Mr Kaihau and other Maori to target their resources ‘to being heard in a forum where [their constitutional arguments] might be better advanced’: ibid at para [13]. He pointed out that there was little point in coming to a court with arguments such as these given that they have ‘little chance of success’. Unfortunately, Mr Kaihau has ignored Durie J’s advice.

[6] There is no justiciable question which it would be proper to send to the Court of Appeal.

[7] I accordingly declined the application for leave. I did not have time to deliver my reasons on 11 May 2001 as I had to leave court immediately to catch a plane to Auckland.

[8] Ms Stairmand, for the South Waikato District Council, sought costs. I awarded costs in the council’s favour in the sum of $100.