Morland aka Easton v Wellington City Council
[2025] NZHC 596
•21 March 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-344
[2025] NZHC 596
UNDER the Judicial Review Procedure Act 2016 BETWEEN
BENJAMIN MORLAND [EASTON]
Applicant
AND
WELLINGTON CITY COUNCIL
First Respondent
ATTORNEY-GENERAL
Second Respondent
Hearing: 26 November 2024 Appearances:
Applicant in person
K A Lee and A M Cotterill for First Respondent
S B McCusker and G P Fitzgerald for Second RespondentJudgment:
21 March 2025
JUDGMENT OF McHERRON J
[1] The Wellington City Council and the Attorney-General have applied to strike out Benjamin Morland [Easton]’s (the applicant’s) judicial review claim. The applicant has been twice directed to file a more explicit statement of claim complying with the High Court Rules 2016 and the Judicial Review Procedure Act 2016:
(a)by Boldt J on 15 July 2024;1 and
(b)by Cull J on 12 August 2024.2
1 Morland [Easton] v Wellington City Council HC Wellington CIV-2024-485-344, 15 July 2024 (Minute of Boldt J).
2 Morland [Easton] v Wellington City Council HC Wellington CIV-2024-485-344, 12 August 2024 (Minute of Cull J).
MORLAND EASTON] v WELLINGTON CITY COUNCIL [2025] NZHC 596 [21 March 2025]
[2] Although the applicant filed further statements of claim responsive to each of these orders,3 the respondents say they still do not disclose a reasonable cause of action. Moreover, the respondents’ argument is that the applicant is attempting to relitigate previous Court decisions and that his proceeding covers matters that are not suitable for judicial review.
[3] The applicant has also filed a document headed “Memorandum – pre-empting application for interim relief” dated 3 October 2024. In that application, the applicant seeks an order that he be paid New Zealand Superannuation in advance of his 65th birthday. The applicant describes this as a prospective costs order, invoking the recent decision of the Supreme Court in Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waiōweka, where a prospective costs order was made.4
[4] I will consider the underlying claim — as reflected in the second amended statement of claim dated 12 September 2024 — and the application for interim relief by way of a “prospective costs order” in this judgment. However, I note that if the claim is struck out then prospective costs would not be available in any event.
[5] The respondents’ strike out applications are brought under r 15.1 of the High Court Rules. Under this rule, the Court may strike out all or part of a pleading including if it discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading.5 Instead of striking out all or part of a pleading, the Court may stay the proceeding on such conditions as are considered just.6 The following, well settled principles apply to a strike out application:7
(a)the Court must exercise the jurisdiction sparingly and consistently with access to civil justice;
3 A document headed “Amended Statement of Claim – for judicial review” dated 29 July 2024 [amended statement of claim] and a document headed “statement of claim” dated 12 September 2024 [second amended statement of claim].
4 Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waiōweka [2024] NZSC 119.
5 High Court Rules 2016, r 15.1(1)(a).
6 Rule 15.1(3).
7 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; Smith v Fonterra Cooperative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134 at [74]–[75]; Southern Ocean Trawlers Ltd and Director- General of Agriculture & Fisheries [1993] 2 NZLR 53 (CA).
(b)all pleaded facts are assumed to be true;
(c)strike out principles as articulated in other civil proceedings apply equally to applications for judicial review;
(d)if deficiencies can be cured by an amendment to the pleadings, allowing the claim to proceed on condition the necessary amendments are made, is preferable to strike out.
[6] A pleading may also be struck out if it is an abuse of the process of the Court.8 Included within this category is a proceeding which attempts to relitigate matters that have already been determined by the Court.9
The applicant’s statement of claim
[7] The thirty page second amended statement of claim dated 12 September 2024 contains three causes of action linked, according to the applicant, by what appears to be a narrative about New Zealand’s constitutional framework. The statement of claim does not comply with the rule that each paragraph must be confined to a single topic.10 But the problems with the claim go well beyond compliance with rules of pleading, and are fundamental. The second amended statement of claim is a rambling, disconnected and diffuse narrative. It is difficult to follow, lacks structure, and is, in parts, incoherent. This has made it difficult, if not impossible, for the respondents to attempt to respond to it, because it does not clearly outline the allegations against them. However, allowing for the fact that the applicant is a litigant in person, I have attempted to summarise his core allegations as follows.
First cause of action
[8] The first cause of action concerns the introduction of the Care of Children Bill in 2003. The applicant alleges the Bill’s introduction was inconsistent with the New Zealand Bill of Rights Act 1990 (Bill of Rights Act). The applicant contends the
8 High Court Rules, r 15.1(1)(d).
9 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541; Little v New Zealand Law Society [2023] NZHC 1880 at [35].
10 High Court Rules, r 5.14(2).
Attorney-General’s report under s 7 of the Bill of Rights Act was not given to Parliament on the Bill’s introduction, as s 7 requires, but rather the day after. He seeks a declaration that the introduction of the Bill is inconsistent with s 6 of the Bill of Rights Act and that this matter should be transferred to the Court of Appeal.
[9] The applicant’s contention about the introduction of the Care of Children Bill has been previously addressed by this Court in Easton v Governor-General.11 Mallon J struck out the applicant’s claim as it disclosed no reasonable cause of action. However, the applicant seeks to re-open Mallon J’s decision, claiming it is wrong in fact and law.
Second cause of action
[10] The applicant’s second cause of action concerns the dispute about the sale of land at Shelly Bay. In that dispute, Mau Whenua alleged the Port Nicholson Block Settlement Trust, the post-settlement governance entity arising from the settlement of Taranaki Whānui ki te Upoko o Te Ika’s historical grievances with the Crown, unlawfully sold Shelly Bay to developers. The background to this dispute is canvassed in Mau Whenua Inc v Shelly Bay Investments Ltd, in which Associate Judge Johnston dismissed the application by members of an incorporated society with connections to Taranaki Whānui to prevent a caveat, placed over three Shelly Bay properties, from lapsing.12
[11] The applicant asserts he has standing in relation to the Shelly Bay dispute through his connection with the “local identity” of Te Whakaminenga, the Confederation of United Tribes, who signed He Whakaputanga o te Rangatiratanga o Nu Tireni | The Declaration of the Independence of New Zealand in 1835. Moreover, the applicant says he was “gifted a signed representative status” in respect of trespass notices issued to Mau Whenua, the group which occupied Shelly Bay in protest from November 2020 to May 2022.
[12] It is difficult to discern exactly what the applicant’s second cause of action relates to. He alleges that the first respondent knew or should have known that cl 19.1
11 Easton v Governor-General [2012] NZHC 206.
12 Mau Whenua Inc v Shelly Bay Investments Ltd [2019] NZHC 3222, (2019) 20 NZCPR 923.
of the Port Nicholson Block Settlement Trust deed prohibited the trustees from taking any further advice from the first respondent. He apparently makes this allegation in the context of his challenge to the Trust’s 2016 alleged decision to enter into dealings with the Wellington Company to divest land interests held by the Trust, despite not being approved as part of an earlier resolution by its members. The Trust deed did not require the trustees to be bound by a resolution of its members. But the applicant says this was in breach of cl 19.1 of the deed, which required the trustees to act in good faith.
[13] Trespass notices were served on the applicant, by Wellington City Council, because of his occupation at 270 and 270A Massey Road, which is on the same stretch of road as the Shelly Bay block.13
[14]The applicant also seeks:
(a)for the Registrar-General of Land to review the transfer of land from the Port Nicholson Block Settlement Trust to private developers for the purpose of lodging a Registrar’s caveat under s 149 of the Land Transfer Act 2017 to prevent dealing with an estate or interest in land that may prejudice a person through fraud or improper conduct.
(b)to challenge trespass notices allegedly served on people at Shelly Bay because of asbestos that was present.
[15] As part of the relief sought in the second cause of action, the applicant seeks “through habeas corpus” to “reform relationships between the Crown and all indigenous to the land as living on the land prior to the codified formulation of 14 January 1840”.
[16] He also challenges the trespass notices issued against him personally, because of his occupation at Massey Road on the basis that the occupation was peaceful and the reasons for it clear.
13 For further background to the dispute over Shelly Bay, see Gilbert v Mulligan – Part 3 Lot DP3020 (2023) 466 Aotea MB164 (466AOT) 164.
[17] The applicant notes that he may seek to join additional parties to his claim in his second cause of action, including the Police, Greater Wellington Regional Council, the General Registrar of Land (sic) as well as a number of private parties.
Third cause of action
[18] The applicant’s third cause of action concerns the Fast-track Approvals Bill.14 Again, he argues the Bill is deficient as the Attorney-General’s report under s 7 of the Bill of Rights Act was not tabled on the day the Bill was introduced to the House. He seeks a declaratory order
…that the proposed Fast Track Approvals Bill has been corrupted under the influence of private interests to rule over the security of public protection and therefore as inconsistent with natural justice a speculated possibility of such an inconsistency required verification under section 7 of the New Zealand Bill of Rights Act 1990 and ought to have been, but was not - tabled on the introduction of a government bill.
[19] Under the heading “Other matters not addressed”, the applicant’s second amended claim also mentions three other matters “not addressed in the statement of claim that were raised in the preliminary documents”:
(a)“David Seymour and the Principles of the Treaty of Waitangi” which the applicant says “is the subject of complaints to be filed”;
(b)“Rainbow crossing”;
(c)“Special vehicle lane 24-hour infringement entrapments at Riddiford Street Hospital entrance” which the applicant describes as:
… means to further these proceedings in the 1st cause if the respondents elect to strike out and are successful – otherwise the matters are destined to the Court of Appeal in a recall application.
[20] None of these matters is adequately particularised as a separate cause of action; nor is any relief pleaded. As suggested in the heading, I have treated these matters as ancillary matters inserted for context, though their relevance to the pleaded causes of action is difficult to discern.
14 Now, the Fast-track Approvals Act 2024, which received Royal assent on 23 December 2024.
Wellington City Council’s strike out application
[21] The first respondent, Wellington City Council, submits that the applicant’s statement of claim discloses no reasonably arguable cause of action and is so unclear that the Council cannot understand the case against it. This remains so after the applicant has been given several opportunities to amend his pleadings and has had the requirements for compliance explained to him.
[22] In relation to the first cause of action, the Council submits there are no grounds for it to be named as respondent. Wellington City Council has no power in relation to the legislative or parliamentary process. The Council has not made any decision that is judicially reviewable under the first cause of action. Merely because it provided housing to the applicant during his previous challenge in respect of the Care of Children Bill does not mean the Council made any judicially reviewable decision.
[23] In relation to the second cause of action, the Council submits that the litigation concerning Shelly Bay does not involve a decision of the Council that is amenable to judicial review. The only Council decision identified in the applicant’s statement of claim is the decision to issue a trespass notice in relation to 270–270A Massey Road, but no particulars of that decision have been identified. The Council does not understand the claim that the applicant is making against it. The Council also submits that the applicant’s intention to name several additional parties is likely to delay the proceeding and is a further instance of abuse of process.
[24] In relation to the third cause of action, the Council submits that it was not involved in the Fast-track Approvals Bill’s progress through Parliament.
Attorney-General’s strike out application
[25] On behalf of the second respondent, the Attorney-General, Mr McCusker submits the applicant’s first cause of action is an abuse of process as it relitigates matters already determined in Easton v Governor-General.15 Further, Mr McCusker submits the claim is non-justiciable as the Court cannot strike down legislation once made.
15 Easton v Governor-General, above n 11.
[26] Mr McCusker submits the second cause of action does not identify a statutory power or public power amenable to judicial review or any relevant decision-maker who has exercised a power. The claim also attempts to re-litigate views previously raised by Mau Whenua, particularly in Mau Whenua Inc v Shelly Bay Investments Ltd.16
[27] In respect of the claim directed to the Registrar-General of Land, Mr McCusker submits that the relief goes beyond what the Court can grant in judicial review. In any event, the Attorney-General would not be the appropriate respondent as the Registrar-
General is an independent statutory officer.17
[28] In relation to the trespass notice issued against the applicant, Mr McCusker points out that the applicant does not identify any procedural or substantive defects in the decision-making process of issuing that trespass notice, which has not been enforced.
[29] In respect of the third cause of action Mr McCusker submits this ground of review violates the principle of comity. It was established in Boscawen v Attorney- General that Court cannot intervene in the Attorney-General’s assessment as to whether a s 7 report should be issued.18
[30] Overall, Mr McCusker argues the applicant’s pleadings should be struck out. As an alternative, Mr McCusker says that the Court could stay the proceeding until leave was granted for the applicant to file and serve a compliant statement of claim that has been settled by a lawyer holding a practising certificate.
My assessment of whether the claim should be struck out
First cause of action
[31] The matters that the applicant seeks to litigate have already been determined by Mallon J in Easton v Governor General.19 Attempts to re-litigate matters that have
16 Mau Whenua Inc v Shelly Bay Investments Ltd, above n 12.
17 Land Transfer Act 2017, s 231.
18 Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229.
19 Easton v Governor-General, above n 11.
already been determined, including bringing substantially the same proceeding (in a different garb) is a clear example of abuse of process. Merely adding another example of the same alleged error in the form of the introduction of the Fast-track Approvals Bill does not permit the applicant to re-litigate what is effectively the same issue as he has already unsuccessfully challenged in his previous litigation.
[32] Even if this issue had not been previously litigated, it does not disclose a reasonable cause of action. However, I have slightly different reasons for my conclusion than those advanced by the Attorney-General. The applicant is not claiming that the legislation should be struck down. Rather, he seeks a declaration that the introduction of the Care of Children Bill was inconsistent with s 6 of the Bill of Rights Act. Section 6 is an interpretative rather than operative provision of the Bill of Rights Act. It is unclear how the introduction of the Bill could be inconsistent with a provision that has an interpretive rather than an operative purpose. Section 6 is a provision that instructs decision-makers to interpret other provisions consistently with the Bill of Rights Act. It is illogical to seek a declaration that another provision is inconsistent with s 6. In any event, even if the applicant intended to refer to s 7 of the Bill of Rights Act rather than s 6, this claim would face the same issue. Section 7 does not set out any right or freedom in respect of which a declaration of inconsistency could be made.
[33] Accordingly I accept the Council and the Attorney-General’s submission that the applicant’s first cause of action is an abuse of process and is not reasonably arguable because of the relief sought. It is struck out.
Second cause of action
[34] In relation to the applicant’s second cause of action, he has not shown he has any standing to bring the claim on behalf of the beneficiaries of the Port Nicholson Block Settlement Trust. Moreover, the issues he seeks to litigate about the validity of the sale have already been litigated or are being litigated.20 As such, the claim the applicant seeks to bring in respect of Shelly Bay is an abuse of process. I strike it out.
20 Mau Whenua Inc v Shelly Bay Investments Ltd, above n 16 and Gilbert v Mulligan, above n 13.
[35] The remaining aspects of the applicant’s second cause of action concern trespass notices issued at Shelly Bay and on him personally at 270–270A Massey Road. The relief that the applicant seeks in relation to the trespass notices is a reformulation of the relationship with indigenous communities. The applicant’s work with indigenous communities may be aimed at such reformulation. However, it is not something that the Court can order.
[36] More fundamentally, the applicant has not identified any relevant and reviewable particulars within the decisions to serve the trespass notices, making it unclear exactly what decision the applicant seeks to review and his grounds of review. This deficiency has also made it impossible for the Council to provide an adequate response to the applicant’s claim.
[37] Accordingly, there is no reasonably arguable cause of action. The second cause of action is struck out.
Third cause of action
[38] The applicant’s complaint in the third cause of action is the same as his previous Care of Children Bill challenge already determined by this Court, except the current claim relates to a different Bill. The applicant alleges that the Attorney- General’s report under s 7 of the Bill of Rights Act was not tabled when the Fast-track Approvals Bill was introduced into the House.
[39] This claim is not reasonably arguable. The Attorney-General received advice from the Ministry of Justice that the Bill was consistent with the Bill of Rights Act.21 No obligation under s 7 arose. The Attorney-General is only required to highlight inconsistencies with the Bill of Rights Act on introduction of a Bill. Section 7 does not provide any general reporting obligation.22
[40]Accordingly, I strike out the third cause of action.
21 Ministry of Justice Consistency with the New Zealand Bill of Rights Act 1990: Fast-track Approvals Bill (1 March 2024).
22 Boscawen v Attorney-General, above n 18, at [30].
[41] In any event, I accept the Attorney-General’s submission that judicial review of the Attorney-General’s performance of her s 7 duties engages the principle of comity, because it is part of the legislative process.23 This is another reason why I would strike the third cause of action out.
[42] For completeness, I note that I cannot find anything to support the applicant’s claim that removal of a wharf at Shelly Bay was inconsistent with s 12 of the Resource Management Act 1991. I note that the Shelly Bay wharf is not defined as having significant historical heritage value in the Greater Wellington Regional Council’s Natural Resources Plan.24
[43] For the above reasons the applicant’s entire statement of claim is struck out as disclosing no reasonably arguable cause of action and as an abuse of process.
Prospective costs order/advance payment of superannuation
[44] As I have decided to strike out the applicant’s entire statement of claim, it is unnecessary to consider his application for advance payment of his New Zealand Superannuation, which he advances as a form of prospective costs order.
[45] The applicant explains he lacks money because he was denied a Jobseeker benefit as he is not looking for paid employment as defined in the Social Security Act 1964, but instead works full-time to “disclose corruption”.
[46] In Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waiōweka, the Supreme Court established five key considerations for determining whether the interests of justice justify a prospective costs order:25
(a)the case must raise an issue of very significant general or public importance;
(b)the applicant’s stance on the relevant issue must be seriously arguable;
23 At [32].
24 Wellington City Council Natural Resources Plan for the Wellington Region (9 June 2023) at 464.
25 Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waiōweka, above n 4.
(c)the applicant must be generally impecunious;
(d)the position of the respondent, including its conduct in the litigation, any broader responsibilities it may have and any unjust advantage likely to accrue absent the order; and
(e)any reasonable alternatives to make the order or any appropriate limits on its extent and duration.
[47] The applicant faces a number of hurdles in obtaining the order he seeks. The primary hurdle is that the Court has no jurisdiction to grant New Zealand Superannuation before an entitlement arises under the law.26
[48] Second, the applicant does not have any costs in which a prospective costs order ought to be made against. He refers to a report he commissioned on asbestos but not provide the Court with a copy (until after the hearing) or any invoice for its cost. The applicant is also a litigant in person, which places him in a different position from the circumstances in the Supreme Court case on which he relies. In that case, the applicants were seeking the legal costs of their lawyers. The applicant has not established he has any such costs.
[49] While I accept the applicant may be impecunious, for the reasons I have outlined the litigation he is bringing is not of significant public interest. As such it would not be appropriate to make the order he seeks, even if I had jurisdiction to do so.
Result
[50] The applicant’s claim is struck out in its entirety. His application for advance payment of New Zealand Superannuation in the form of a prospective costs order is also declined.
26 New Zealand Superannuation and Retirement Income Act 2001. I note as relevant to his entitlement to New Zealand Superannuation, the applicant will turn 65 soon.
[51] If the respondents seek costs, they are to file and serve memoranda of no more than three pages no later than 3 April 2025. If (and only if) any such memoranda are filed, the applicant may file and serve a memorandum in response (of no more than three pages) no later than 17 April 2025.
Post-script: documents the applicant submitted to the Court after the hearing
[52] After the hearing of the strike out application, but before I gave this judgment, the applicant filed several additional documents. These documents have all been forwarded for my attention. On 9 December 2024, I issued the following minute:27
I am currently considering the strike out application in light of the material provided by the parties up to and including the hearing. I did not ask the parties to provide any further material after the hearing. Further material the parties submit post-hearing will not be considered unless I specifically ask for it or grant leave for it to be filed.
[53] I did not specifically ask for any further material or grant leave for any further material to be filed. In this situation, rule 11.8A of the High Court Rules applies:
11.8A Further submissions after end of hearing but before judgment
(1)This rule applies after a proceeding or an application has been heard but before judgment has been given.
(2)A party may file a memorandum seeking leave to make further submissions.
(3)The Judge responsible for the judgment may grant leave to a party to make further submissions.
[54] I have reviewed all the material the applicant submitted to consider whether leave should be given for it to be filed as further submissions in accordance with r 11.8A. I decline leave to the applicant to make further submissions in respect of all his post hearing documents. I set out my individual decisions below in respect of each of the applicant’s documents. Where not specifically mentioned, my decisions to decline leave include any attachments filed with the lead document in each case.
27 Morland [Easton] v Wellington City Council HC Wellington CIV-2024-485-344, 9 December 2024 (Minute of McHerron J).
Application for review of Registrar’s decision
[55] Following my 9 December 2024 minute, the case manager responded to the applicant’s attempt to file material after the hearing with an email on 4 February 2025 stating:
As per the minute of Justice McHerron from 9 December 2024, further material submitted post-hearing will not be considered. I cannot accept your documents for filing.
[56] The applicant responded on 5 February 2025 with an application under r 2.11 to review the Registrar’s refusal to accept a document for filing. When this application was forwarded to me I asked the case manager to ensure that all the applicant’s post- hearing documentation was forwarded to me. I would consider that material and determine whether to give leave to make further submissions (even in the absence of a memorandum seeking leave as is required under r 11.8A(2)).
[57] Accordingly, as the post-hearing material has all been viewed by me and falls for consideration under r 11.8A, the applicant’s r 2.11 review application is redundant and it is dismissed.
Asbestos Management Survey Report
[58] The applicant submitted an Asbestos Management Survey Report concerning the “Shelly Bay Complex” prepared by Fibresafe NZ and dated 18 October 2019 which details locations containing asbestos and recommended actions.
[59] I have reviewed this document to assess whether, if filed prior to the hearing it would have been relevant to my decision on the respondents’ strike out applications. It would not. I decline leave to the applicant to file this document as a further submission.
Interlocutory URGENT Without Notice application to suspend, 31 December 2024
[60] On 31 December 2024, the applicant filed a document headed “Interlocutory URGENT Without Notice application to suspend”, in which he sought to “suspend (injunct)” the deadline for submissions on the Principles of the Treaty of Waitangi Bill.
[61] The Bill of Rights 1688 prevents the Court entertaining any proceedings which impede any proceeding of Parliament.28 This includes proceedings seeking to suspend submissions on a Bill.29
[62]I decline leave to file this document as a further submission.
Interlocutory URGENT Without Notice application to suspend (leave sought), 3 January 2025
[63] On 3 January 2025, the applicant filed a document headed “Interlocutory URGENT Without Notice application to suspend (leave sought)”, in which he sought leave for an order to “suspend (injunct)” the assent date for the Fast-track Approvals Bill.
[64] As mentioned, the Bill of Rights 1688 prevents the Court entertaining any proceedings which impede any proceeding of Parliament.30 This includes proceedings seeking to prevent a Bill being presented to the Governor-General for Royal assent.31 Further, the Fast-track Approvals Act was assented to on 23 December 2024, and came into force on 24 December 2024.32
[65]I decline leave to file this document as a further submission.
Motion on leave documents, 6 and 7 January 2025
[66] On 7 January 2025, the applicant submitted a document headed “Motion on leave: Originating Summons with Proclamation from 270 Massey Road ceasing the Principles of the Treaty of Waitangi Bill with independent submission from Nga Hapu o Poutama nā Rangatira Haumoana White”. The document states:
Question for the Court: Whether taking authority, as without prejudice under Clause 1 of the Letters Patent Constituting the Office of Governor-General of New Zealand either responsibly by the judiciary, or more naturally for Urgent self-appointment the public, responding as one to the Conflict of Interest executed by a rogue coalition - upon her as Ngāpuhi, so restraining Our conventionally appointed Governor General and Commander in Chief,
28 Bill of Rights 1688 (UK) 1 Will and Mar c 2, art 9; Parliamentary Privilege Act 2014, s 10(2).
29 Queen v Speaker, House of Representatives [2004] NZAR 585 (HC).
30 Bill of Rights 1688 (UK), art 9; Parliamentary Privilege Act, s 10(2).
31 Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC).
32 Fast-track Approvals Act, s 2.
Cynthia Kiro whereas alleged, historically to be responsible for an Assent of the Fast Track Approvals Bill on Waitangi Day – that the Principles of the Treaty of Waitangi Bill submissions as to be concluded this day being the 7th January 2025 - Are Herein Suspended - indefinitely or in the alternative until concluding judgment from this Motion for leave;
And if leave is not granted as affirmative – the Document serves to independently under the exercise of these Patent powers and authority to disqualify the High Court and the Governor General from the Realm of His Majesty’s Gift on Charge for failing the Independence sworn Honour that Gift
– So help them God.
[67] A separate document headed “Motion on leave in Urgency and Proclamation from 270 Massey Road”, dated 6 January, apparently sought suspension of the “submission date” for Principles of the Treaty of Waitangi Bill.
[68] Apart from one of the matters raised tangentially in the second amended statement of claim, the meaning of these documents is difficult to follow but it appears to have no relevance to the pleaded causes of action.
[69] In any event, as mentioned, as a general proposition the relief apparently sought from the Court — to suspend submissions on a Bill — is not relief this Court has jurisdiction to order.33
[70] I decline to grant leave to the applicant to file these documents as a further submission.
URGENT Memorandum seeking leave: Watching Brief Nga Hapu o Poutama, Rangatira Wiremu Uren and Fast TAB Injunction, 4 February 2025 and “affidavit” of Haumoana White
[71] On 4 February 2025, the applicant submitted a document headed “URGENT Memorandum seeking leave: Watching Brief Nga Hapu o Poutama, Rangatira Wiremu Uren and Fast TAB Injunction”. By this document, the applicant sought the following “interlocutory relief”:
(a)“That the Assent of the Fast Track Approvals Bill, planned for 6th February 2025, be suspended as subjected to the Court’s decision…”;
33 See Queen v Speaker, above n 29.
(b)“That the Court orders Nga Hapu o Poutama, nā Rangatira Haumoana White to have a Watching Brief with submissions pre-approved …”
[72] A document headed “Affidavit of Haumoana White in Support of Benjamin Morland” has also been submitted. Although described as an affidavit, the copy on the Court file has not been signed or witnessed as such. The document states that the author makes the “affidavit” in support of the applicant against the Attorney-General and that the purpose of the affidavit is to:
(a)Provide current, historical and legal context regarding the unextinguishable sovereignty of Ngā Hapū o Poutama;
(b)Highlight specific breaches and unlawful actions by the Crown including its agents, including the use of military action, the NZ Settlements Act, the Public Works Act, Governor Generals Proclamations Act, the Fast-track Approvals Act, and the obstruction, interference, undermining and failure to give effect to hapū rights including by misrepresenting the Te Rūnanga o Ngāti Tama Trust (TRoNT) 2003 Treaty Settlement including by pretending that all Ngāti Tama people are eligible to be beneficiaries of TRoNT, and breaches and unlawful actions relating to the NZTA Mt Messenger roading project;
(c)Seek formal remedies to give effect to the sovereignty and decision- making authority of Ngā Hapū o Poutama.
[73] I decline to grant leave to the applicant to file these documents as a further submission.
[74] The “affidavit” covers material outside the scope of the applicant’s proceeding and so, even if it had been filed before the hearing of the strike out application, it would have little or no relevance.
[75] As discussed above, the Court has no jurisdiction to “suspend” the Royal assent of a Bill.34
[76] Moreover, in light of my decision to strike out all causes of action in the applicant’s claim, there is no basis for allowing a “watching brief”, which in any event ought to have been sought prior to the hearing.
Application to join Green Tree Holdings Ltd and Police as respondents, 25 February 2025
[77] On 25 February 2025, the applicant submitted a document headed “Rule application to join Green Tree Holdings Ltd and Police as respondents”. This document references rule 4.56 of the High Court Rules, which provides that a Judge may, at any stage of a proceeding, order that the name of a person be added as a plaintiff or defendant because the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.
[78] In this document, the applicant refers to an individual who has erected a tent in Shelly Bay Road and has been “advised she must remove her possessions…or lose them”. The applicant claims this individual is “protected” by his second cause of action but rather than joining this individual as an applicant, the applicant seeks to join the Police as a respondent as an example of “the proactive abuse of a public protection”. He seeks an order that:
… any building or disassembly of a camp, known to the occupier as Whatonga Uru Pa, and known to the contested land owner as 276 Shelly Bay Road - be declared prohibited – until or when an order is made for that disassembly after defences are provided by due process under the 344 proceeding.
[79] The applicant also refers to “an incident of assault” outside a café on the Eastern side of the Miramar Peninsula. Although the assault did not involve the applicant personally, he refers to his communication to a police officer reporting the assault and demanding “a timetable for the charges to be laid” or he will “proceed against the officer in person and the Police as second respondent and [the café] as the third”. The applicant also seeks to join the Police “for multiple examples of
34 Westco, above n 31.
deliberated if not racist discrimination against the present occupation/s at Motu Kairangi.” He seeks a declaration that the Police must charge individuals in relation to the alleged assault.
[80] The applicant claims it is necessary to join Green Tree Holdings Ltd in relation to a claim in the second cause of action in which he seeks an order for the Registrar- General of Land to review the transfer of land from the Port Nicholson Block Settlement Trust to private developers as that company has an interest in the land in question.
[81] In my view, none of these matters raised post hearing have any direct relevance to the claims that were pleaded in the second amended statement of claim.
[82] The applicant’s application to join Green Tree Holdings Ltd and the Police as respondents also includes brief “further analysis” of the three causes of action in the second amended statement of claim, none of which has caused me to alter my view that there is no reasonably arguable cause of action in the applicant’s claim and that it is an abuse of process. I do not give the applicant leave to file his application to join Green Tree Holdings Ltd and the Police as respondents.
Post-script Result
[83] I do not grant leave for any of the further material produced after the hearing to be filed as further submissions pursuant to r 11.8A of the High Court Rules 2016.
McHerron J
Solicitors:
Luke Cunningham Clere for Second Respondent
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