Pono Providers of Natural Order Charitable Trust v Hamilton City Council HC Auckland CIV 2007 419 533

[2007] NZHC 1803

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007 419 533

BETWEEN  PONO - PROVIDERS OF NATURAL ORDER CHARITABLE TRUST

First Plaintiff

AND  ALBERT MCQUEEN Second Plaintiff

AND  TE AMOHIA MCQUEEN Third Plaintiff

AND  HAMILTON CITY COUNCIL Defendant

Hearing:         7 June 2007

Appearances: Albert McQueen in person and on behalf of plaintiffs

Dorothy Thresher for Defendant

Judgment:      7 June 2007

(ORAL) JUDGMENT OF WILLIAMS J

[1]      This judgment deals with an application by the defendant, the Hamilton City Council, to strike out the claim against it brought by the plaintiffs the Providers of the Natural Order Charitable Trust and Mr and Mrs McQueen on the ground that the claim discloses no reasonable cause of action or is otherwise an abuse of process of the Court.

[2]      The application to strike out, therefore, under r 186 must be assessed along conventional striking out lines.   Those conventions include an acceptance that the allegations in the Statement of Claim under contest are provable and that no claim

should be struck out unless a defendant is able to demonstrate that it is so untenable

PONO AND ORS V HAMILTON CITY COUNCIL HC AK CIV 2007 419 533  7 June 2007

as to be incapable of success.  That is a high threshold and a necessary threshold in order to preserve the rights of citizens’ access to the Court for the resolution of their justiciable disputes.  It is important also to note that it is well settled that proceedings will not be struck out if they can be satisfactorily amended from a deficient form to one which is justiciable and thus give the Court the power to adjudicate on the matters in issue.   That last precept is important because the history about to be recounted will show there have an opportunities granted to the plaintiffs to amend their pleadings.   Indeed, during Mr McQueen’s submissions in opposition to the striking-out application today, he presented an Amended Statement of Claim which will require consideration in due course.

[3]      The  original pleadings,  commenced  on  20  April  2007,  sought  what  was described as “application for review in the nature of prohibition” in respect of what was said to be an unlawful, seizure, arrest and detention and intended murder of Waru who was described as a taonga and registered beneficiary of the plaintiffs’ charitable trust.  The original assertions were that Waru was unlawfully seized and arrested, kidnapped, stolen or unlawfully taken by officials of Hamilton City and in breach of protocols previously accepted by the City in relation to matters of Maori customary law and tikanga.

[4]      The  Statement  of  Claim,  however,  clearly  pleaded  its  reliance  on  the Declaration of Independence of New Zealand 1835 and the Treaty of Waitangi 1840 as founding the plaintiffs’ contention that Waru was entitled to special protection as a taonga and that Waru’s seizure was unlawful in that regard.  The claim asserted that the Council officers had acted in breach of their obligations.  In particular, the original claim asserted that Waru was a taonga koha to the plaintiffs and was a descendant of the Matua Kore Maori Divine Creator and that Council officials had denied Waru that status.  There was also an assertion that Waru was not owned by members of the McQueen whanau and “that no statute in New Zealand regulates or gives the defendants power over our taonga”.   There was no relief claimed in the original statement of claim apart from the initial assertion of entitlement to review in the nature of prohibition  but  it  was  accompanied  by  an  application  for  interim injunction  which  sought  a  writ  of  habeas  corpus  or  alternatively  an  interim injunction  “securing  the  immediate  freedom  of  Waru,  a  taonga  and  registered

beneficiary  of  P.O.N.O.”.     The  application  for  interim  injunction  essentially recounted the main allegations in the Statement of Claim but also gave indication of a meeting between the plaintiffs and the Hamilton City representatives due to take place on 26 April 2007.

[5]      The injunction application was supported by two affidavits which essentially supported the assertions in the claim and the injunction application.  The affidavits set out the fact that the first plaintiff is a registered charitable trust and again claimed that Waru was a koha to the Trust.  The affidavit of Mr McQueen said that the notice found on the property after Waru was uplifted by Hamilton City officers “only raises an issue of registration and no other crime” and that the Trust’s Constitution asserted that gave the City Council no power to uplift Waru.

[6]      Of importance perhaps, Mr McQueen’s affidavit said “that I understand that Waru,  a  member  of the  incorporated  body,  meets  the  lawful  requirements  of a person” and accordingly was entitled to relief.  It is of some important too, to note that paragraph xxx of that affidavit said:

That seizure, arrest and detention of this taonga from the McQueen whanau has put the whanau under extreme distress by removing the feeling of love, protection, happiness and caring.

an assertion which was essentially repeated later in the affidavit.

[7]      The second affidavit from Te Amohia McQueen made clear the proceeding was essentially based on the 1835 Declaration of Independence and the Treaty of Waitangi 1840.

[8]      As  mentioned,  an  amended  claim  was  handed  in  during  the  course  of Mr McQueen’s submissions in opposition to the application.   Looked at broadly it repeats the principal allegations in the original Statement of Claim although it adds an assertion that the notice seizing Waru was unlawful and that the Council officers who uplifted him were in breach of an agreement entered into between Hamilton City officers and tangata whenua.

[9]      Mr McQueen also handed in documents in support of that assertion.   The principal one of those was a document forming part of Hamilton City’s 2006 long term plan under the heading “Vibrant Hamilton”: s 9 of which sets out the Council’s partnership with Maori under the Treaty of Waitangi.   It is, however, clear from a perusal of that document that although Council wishes to develop its relationship with Maori, that is only in respect of responsibilities under the Treaty of Waitangi, the Waikato-Tainui Raupatu Waipa Settlement of 1995 and the Resource Management Act 1991.   Crucially, it omits any reference to the Dog Control Act

1996 which is at the centre of the present case.

[10]     The  material handed  in  by Mr  McQueen  also  included  a  letter  from Te Amohia McQueen to  Te Runanga  o  Kirikiriroa  Trust  of 4  January 2007  which appears to reflect the then arrangements between Hamilton City and tangata whenua in terms of consultation.  As far as is relevant to the present matter, the letter reads:

The process implemented by Animal Care and Control … was found to be Culturally Insensitive and without warrant to have Police intervention.  We now call for the continuation of your Cultural Advisor … and to represent all your departments in reference to this property and its detachments in terms of any Cultural issue that may arise.  This is to assist Communication, Good Faith and the Development within Processes and Procedures for our Cultural beliefs and practices.

That letter, however, is clearly a proposal and does not reflect a settled agreement which might give force to the assertions in the Amended Statement of Claim that entry onto the plaintiffs’ property and the uplifting of Waru was in breach of any fixed agreement between the parties.

[11]     The extra material also included a letter from the plaintiffs dated 5 January

2006 which gives notice to Animal Care and Control that access to the property occupied by the McQueens “will be conducted by a formal request in writing … no sooner than seven days in advance”.   Again, however, whilst that letter may be effective in limiting access to the property by Hamilton City Council officers in respect  of other  functions,  it  cannot  be  effective  to  limit  the  exercise  by those officers of functions pursuant to powers conferred on them by statute.

[12]     Finally, of the material handed in during the hearing, it is necessary only to note the copy of the Notice of Seizure and Removal of the dog dated 16 April 2007 which appears on its face to be compliant with the Dog Control Act 1996, s 42.

[13]     Finally, in this regard it is to be noted that, unlike the original Statement of Claim,  the amended  claim now  includes a  prayer  for  relief.    The  relief  sought includes Waru’s immediate release and an order that Hamilton City be prohibited from “further molestation” of Waru - but it also seeks damages in the amount of

$12,000 per day for each day Waru is held in unlawful custody and if Waru is killed prior  to  him  being  freed,  for  the  defendant  to  pay  damages  in  the  amount  of

$1,000,000 for each member of the McQueen whanau.  At the time of handing the document in the claim is assessed at $12,000,000.

[14]     It is next necessary to turn to the procedural history of the case because to the present point in dictation of this judgment, it may not have been clear to a reader of the same outside the parties that Waru is in fact a dog.

[15]     The  claim  for  habeas  corpus  came  before  Stevens J  on  the  day  the proceedings were filed, 20 April 2007 and because it was a claim for habeas corpus and thus statutorily required to be dealt with urgently under the Habeas Corpus Act

2001, the Judge was required to deal with the matter with despatch.

[16]     It was during that process that  he discovered that  Waru was a dog.   He accordingly held that the Habeas Corpus Act 2001 was inapplicable other than to human beings.

[17]     His view in that respect was confirmed by a decision of Heath J on similar factual matters.  That Judge also found the Habeas Corpus Act 2001 could not apply other than to natural persons:  Gordon: Of the House of Israel v Sexton & Ors (HC Hamilton, CIV.2006-419-1765, 15 December 2006).

[18]     The matter then came back before the Court as a timetable issue on 23 April

2007.    Amongst  the  directions  made  on  that  day  were  for  the  filing  of  the undertaking for damages required in injunction proceedings in the form set out in the

High Court  Rules.    Mr  McQueen,  who  also  appeared  for  the  plaintiffs  on  that occasion, was also told that although no final decision had been made on the matter, because of the weight of precedent against the stance taken by them, the plaintiffs might in due course find themselves in difficulty in pursuing let alone achieving the relief they then sought.

[19]     The matter then came back before Rodney Hansen J on 30 May 2007.   He made timetabling orders and set the matter down for hearing.   He too, as had the other Judges, expressed doubts as to the possibility of the plaintiffs being successful in pursuit of the matters raised in their Statement of Claim and advised them to reconsider their stance seriously before deciding to continue.

[20]     Although not fatal to the plaintiffs’ claim, the form of the undertaking for damages they filed on 23 May 2007 is not in the form required by R 238(3).  In the ordinary course that might not have been of great consequence but the undertaking omits the crucial aspect of a plaintiffs’ undertaking, namely, to be responsible for any damages suffered by the defendant in pursuit of an interlocutory injunction.

[21]     The   striking-out   application   is   accompanied   by  an   affidavit   from  a Mr Fleming, who is the General Manager of Environmental Services for Hamilton City and the overseer of the defendant’s Animal Care and Control unit.  He made it clear that Waru was a dog.  He accepted that Council staff uplifted the dog from the plaintiffs’ address on 16 April 2007 because Waru was unregistered.  He says that Mr McQueen is the owner of Waru, despite the denial in that regard in the Statement of Claim.  He put in evidence documents showing A K McQueen as the owner of Waru in the registration years 2004 and 2005.  For the purposes of the striking-out application, it is immaterial which of the plaintiffs is in fact the owner of Waru.  It is sufficient that at least one of the plaintiffs must be Waru’s owner.

[22]     Of some importance too, Mr Fleming makes clear in his affidavit that he has discussed the issue of registration with the plaintiffs and the plaintiffs have declined to register Waru.  He made the point that Council has been looking after Waru since the dog was uplifted, at some cost to Council.

[23]     The real question in this case, and the central question as far as the striking- out application is concerned, is whether the Hamilton City has demonstrated that the plaintiffs’ claim is incapable of success even assuming the provability of the assertions made.  To make that clearer to lay litigants, although Courts on striking- out  applications  assume  that  all  the  allegations  in  the  Statement  of  Claim  are provable, the fact that they cannot be proved can be demonstrated by evidence and Courts can strike out proceedings if, as a matter of law, they cannot possibly succeed or sometimes as a matter of fact they are unable to succeed.

[24]     Pursuant to the Dog Control Act 1996, s 5, all dog owners are required to “ensure that the dog is registered in accordance with this Act”, an obligation which is supported by the fact that under s 42(1) it is an offence for a person who is an owner of a dog under older than three months not to register a dog annually.  That is made clear  also  by  s 36  which  requires  owners  to  apply  to  the  territorial  authorities annually for registration and by the fact that under s 42 not only is it an offence not to register a dog, but s 42(2) reads:

(2)     If a territorial authority has reasonable grounds to believe that a person has failed to comply with subsection (1), a dog control officer or dog ranger may—

(a)     seize and impound the dog; and

(b)      for the purposes of paragraph (a), enter, at any reasonable time, any land or premises (except a dwellinghouse) occupied by the owner of the dog.

[25]     The affidavits in support of the injunction application made clear that at the time Waru was seized he was on a chain attached to a house bus at the plaintiff’s property.

[26]     The crucial question, therefore, as mentioned, is whether Hamilton City has demonstrated that the plaintiffs’ claim is incapable of success.

[27]     In the amended claim, assertions are raised as to  breach of contract  and breach  of  duty  of  care,  the  latter  under  the  Treaty  of  Waitangi.    As  already mentioned, the allegation of breach of contract is unsustainable and accordingly it must  be  struck  out  and  there  can  be  no  duty  of  care  under  the  Treaty  in circumstances such as this.

[28]   The nub of the plaintiffs’ claim is that because of the Declaration of Independence 1835 and the Treaty of Waitangi 1840, and because of what  they regard as the primacy of tikanga as a matter of law in New Zealand, they are not bound by their statutory obligations under the Dog Control Act and are under no obligation to register Waru and, accordingly, the Hamilton City’s actions were unlawful.

[29]     Whilst not doubting the sincerity with which the plaintiffs hold those views, it must be observed, as has been observed in all previous cases on this matter, that similar arguments have been addressed to Courts throughout the country on a large number of occasions over recent years and have been universally rejected.  That has been the case in the District Court, in this Court, in the Court of Appeal and possibly by the Supreme Court refusing leave for such an appeal recently.   If reference to authority is required, a summary of what were then thought to be the principal cases on the issue appears in R v Ransfield (HC Rotorua, T.030559, 20 February 2004) where the Court set out to summarise all the cases on the issue at all levels at that point and remarked on the unanimity with which Courts had rejected that the matters raised by those plaintiffs, and raised by the plaintiffs here, are justiciable in the Courts of New Zealand.  The Courts of New Zealand are bound by the Acts of the Parliament of New Zealand.  The people who are within New Zealand are bound by the Acts of the Parliament of New Zealand.   And if the plaintiffs wish to obtain redress pursuant to tikanga or under the Declaration of Independence 1835 or the Treaty of Waitangi 1840, the only way in which that can be achieved is through the political process.   It is not available through the judicial process.   That, too, was made clear  in a case of Gregory v Police  (HC  Whangarei  CRI.2006-488-0006,

7 August 2006) where Mr Gregory was advised that he could apply direct to the

Supreme Court for leave to appeal should he believe himself entitled so to do.

[30]     More directly relevant to this matter is the decision in Gordon: of the House of Israel to which reference was earlier made.  That too was a case of habeas corpus relating to a dog, the owners of which did not recognise that they were bound by the Dog Control Act 1996 or that they were bound to register the dog and pay an annual registration fee.  There is no need to cite from the observations of Heath J on that occasion.  They are adopted in their entirety.

[31]     The discussion  must  return then to  the central question,  namely  whether Hamilton City has shown that the plaintiffs’ allegations are incapable of success, and accordingly the claim should be struck out.

[32]     As mentioned, the plaintiffs take the view that they are not bound by Acts of the Parliament of New Zealand.  All those in New Zealand are bound by those Acts. The plaintiffs take the view that they have additional rights under the Declaration of Independence 1835 and the Treaty of Waitangi 1840.  They may have such rights but they are not justiciable.  They cannot be enforced through the Courts in accordance with what is now well settled authority.

[33]     It  is  in  the  plaintiffs’  hands  to  remedy the  situation  in  which  they  find themselves  -  but  it  cannot  be  a  remedy achieved  by  them through  the  judicial process.   As mentioned, it is not doubted that the plaintiffs are sincere and well- intentioned in the proceedings they bring and that they love Waru and wish to have the dog returned to them.  But the remedy for that is in their hands.  It is not in the hands of the Court.

[34]     In view of that, the only conclusion open is that these proceedings both in their original and in their amended form have no chance of success.  The defendant’s application to strike out the proceedings will accordingly be granted.

[35]     Currently the defendant is under an undertaking given to the Court not to euthanase  Waru  until the Court’s proceedings  are  at  an  end.    For  the  Council, Ms Thresher seeks the Council’s release from the undertaking.

[36]     The undertaking will be released but only on the expiry of 28 days from today in order that the appeal period from this judgment can expire.  That means that it  is open, if the Council considers  it  appropriate  so  to  do, on 5  July 2007, to euthanase Waru.  If the plaintiffs wish to recover Waru, the remedy to that is in their hands.  There will also be an order that the plaintiffs pay the defendants costs on a category 2B basis.

…………………………..

WILLIAMS J

Solicitors:

Swarbrick Dixon (D A Thresher), P O Box 19-010 Hamilton

Copy for:

Mr Albert McQueen, P O Box 5126 Hamilton

Phoebe Peters, Hamilton High Court