Power v Little

[2022] NZHC 143

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2022-443-1

[2022] NZHC 143

UNDER

the Crimes Act 1961 and the New Zealand Bill of Rights Act 1990

BETWEEN

BRETT WILLIAM POWER

Plaintiff

AND

ANDREW JAMES LITTLE

Defendant

On the Papers
Judgment:	10 February 2022

JUDGMENT OF GWYN J

Introduction

[1]    Mr Power presented for filing in the New Plymouth Registry of the High Court a proceeding against the above-named defendant. The proceeding has been given the Registry number CIV-2022-443-1. The  proceedings  were  referred  to  me,  as  Duty Judge, by the Registrar under r 5.35A of the High Court Rules 2016.

The proceedings

[2]    The proceeding relates to the Pfizer COVID-19 vaccine (the vaccine), and  Mr Power’s concerns about the nature, effectiveness and safety of the vaccine. It alleges three causes of action:

(a)A breach of s 165 of the Crimes Act 1961(Causing death that might have been prevented).

POWER v LITTLE [2022] NZHC 143 [10 February 2022]

(b)A breach of s 111 of the Crimes Act 1961 (False statements or declarations).

(c)A breach of the New Zealand Bill of Rights Act 1990.

[3]The relief sought by the plaintiff is:

(a)That the defendant be brought to court to answer the charges of breach of ss 111 and 165 of the Crimes Act 1961 and breach of the New Zealand Bill of Rights Act 1990.

(b)A declaration that the COVID 19 Public Health Response (Vaccinations) Amendment (Bill No. 2) 2021 is in breach of the Bill of Rights Act and s 111 of the Crimes Act 1961.

(c)An order that all COVID-19 instructions, orders and legislation arising from the defendant’s response to the COVID-19 pandemic be rescinded and repealed.

(d)That the special powers afforded a Prime Minister at s 5 of the Epidemic Preparedness Act 2006 be removed from the Act and replaced with the approval of Parliament.

(e)That the Court petition the Governor-General to remove the current Prime Minister and her government from office with immediate effect.

(f)That the New Plymouth Police immediately arrange for the arrest and detention of the defendant, awaiting trial for the alleged crimes.

The statement of claim

[4]    The statement of claim is lengthy. It predominantly consists of what is put forward as evidence of the claims. It is accompanied by a bound volume labelled “Document List” which contains more detailed evidence. In general terms Mr Power’s complaints, so far as I can discern them, are that the defendant has relied on falsified

information taken from what are alleged to have been fraudulent clinical trials of the vaccine, in order to pass COVID legislation. Mr Power also pleads that the vaccine is not a traditional vaccine, it is a “genetic altering serum” which does not give lasting immunity. It has been falsely marketed as a vaccine, but is a medical device. These pleadings give rise to the allegations of breach of s 111 of the Crimes Act.

[5]    In addition, Mr Power pleads that data recorded by Medsafe1 shows that the vaccine was not safe for pregnant women; a number of pregnant women who received the vaccine have had spontaneous abortions or miscarriages as a result of receiving the vaccine. Mr Power characterises those events as murder and says they could have been avoided if the defendant had read the Pfizer clinical trials report or the Medsafe reports and acted to uphold his duty to protect public safety. That gives rise to the claimed breach of s 165 of the Crimes Act 1961.

[6]    The claim in relation to the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) appears to be that it has been overridden by the enactment of COVID-19 legislation and, in particular, the COVID 19 Public Health Response (Vaccinations) Amendment Bill (No 2) 2021.2

My assessment of the claim

[7]    To bring a proceeding the plaintiff must set out a valid legal cause of action and that cause of action must be brought against the relevant defendant under the law. Notwithstanding that the plaintiff uses the “cause of action” terminology, the current proceeding does not set out a valid legal cause of action.

[8]    The first difficulty with the statement of claim is that it is unnecessarily prolix.3 In addition, the statement of claim is predominantly evidence rather than pleading, 4 or pleads irrelevant material. It does not clearly identify the main issues in respect of the defendant.5 It is difficult to understand what duties the defendant is said to owe.

1      Medsafe is the New Zealand Medicines and Medical Devices Safety Authority and is the Ministry of Health’s medical regulatory body.

2      Now enacted as the COVID-19 Public Heath Response Amendment Act (No 2) 2021.

3      See for example the judgment of the Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Limited [2013] NZCA 53 at [90] and [95].

4      At [91] and [95].

5      At [90]-[91].

The statement of claim relies on s 3A of the Health Act 1954. I assume the reference is to s 3A of the Health Act 1956 which provides:

3A      Function of Ministry in relation to public health

Without limiting any other enactment or rule of law, and without limiting any other functions of the Ministry or of any other person or body, the Ministry shall have the function of improving, promoting, and protecting public health.

[9]    Section 3A does not impose a duty on the defendant; nor does any other the provision of that Act. The plaintiff does not plead any other statutory or common law duty owed by the defendant.

[10]   Nor does the claim clearly plead what actions of the defendant allegedly caused the damage or loss claimed.

Crimes Act 1961 – first and second causes of action

[11]   In addition to the general deficiencies with the statement of claim outlined above, the plaintiff faces some fundamental difficulties in respect of the alleged breaches of the Crimes Act.

[12]   First, Mr Power is alleging breaches by the defendant of aspects of the criminal law. While the right to bring private prosecutions is preserved in New Zealand, criminal proceedings in respect of an offence under the Crimes Act must be commenced in the District Court6 and meet the requirements for a charging document.7 The Registrar of the District Court may accept the charging document for filing or refer it to a District Court Judge for a direction as to whether it is sufficient to justify a trial.8   Plainly Mr Power has not followed that procedure and it is not for the    High Court, in its civil jurisdiction, to receive the charges.

[13]   Second, Mr Power has misunderstood the meaning of ss 111 and 165 of the Crimes Act. Section 111 provides:

111        False statements or declarations

6      Criminal Procedure Act 2011, s 14.

7      Section 16.

8      Section 26.

Every one is liable to imprisonment for a term not exceeding 3 years who, on any occasion on which he is required or permitted by law to make any statement or declaration before any officer or person authorised by law to take or receive it, or before any notary public to be certified by him as such notary, makes a statement or declaration that would amount to perjury if made on oath in a judicial proceeding.

[14]   Section 111 specifically applies to statements or declarations made before a person or authority authorised to take or receive it. It is concerned with, for example, a declaration made under the Oaths and Declarations Act 1957 or other types of prescribed or permitted statements made under a statutory power.

[15]   The statement of claim pleads that the allegedly falsified information has been used in “attempting to pass new COVID legislation, now before the NZ parliament”, but it does not plead the exact nature of the “statement(s)” said to have been made by the defendant. On the face of the pleading, s 111 has no application to this situation.

[16]Section 165 of the Crimes Act provides:

165     Causing death that might have been prevented

Every one who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means.

[17]   Section 165 preserves the rule at common law under which a person is held responsible for a death if an injury inflicted by him is an operative cause of death (directly or through some secondary condition such as tetanus) even though it could have been prevented with proper treatment.9

[18]Again, on the face of the pleading, s 165 has no application to the defendant.

New Zealand Bill of Rights Act 1990

[19]   The third cause of action appears to allege that the New Zealand Bill of Rights Act 1990 has been overwritten by a mandatory Health Order or amendment to an

9      See Simon France (ed) Adams on Criminal Law — Procedure (looseleaf ed, Thomson Reuters) at [CA 165.01].

existing Act. The claim does not specify which specific legislative amendments are said to be inconsistent with the Bill of Rights Act or in what respects.

Relief sought

[20]   Finally, the relief sought at [3](d), (e) and (f) above is not within the power of this Court.

Rules 5.35A and 5.35B of the High Court Rules

[21]   Proceedings referred by the Registrar under r 5.35A are considered by a Judge under r 5.35B. Under r 5.35B I may make certain orders or give directions to ensure the proceedings are disposed of or proceed in a way that complies with the High Court Rules, if I am satisfied the proceedings are “plainly an abuse of the process of the Court”. I am satisfied the proceedings meet this test. The defendant should not be required to file a defence to claims that are not legally available against him and where the matters pleaded are almost solely matters of evidence.

[22]   As Mallon J said in Smyth-Davoren v Parker and Ors:10 “the Court would be exercising poor control of its processes if it allowed the proceedings to continue, which would require the defendants to respond through the Court process”. That is equally true of this proceeding.

[23]   I consider the appropriate course is to strike out the proceeding.11 The proceeding is not capable of being amended to turn Mr Power’s concerns as alleged into valid claims against this defendant, able to be pursued through the High Court.

[24]   This proceeding (which has the registry number CIV-2022-443-1) is struck out. Mr Power has a right of appeal against this decision.12 The named defendant is to be served with this judgment.13

Gwyn J

10     Smyth-Davoren v Parker and Ors [2018] NZHC 3034 at [8].

11     High Court Rules 2016, r 5.35B(2)(a).

12     Rule 5.35B(3).

13     Rule 5.35B(4).