Sixtus v Ardern - [2023] NZCA 521

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA306/2022
[2023] NZCA 521

BETWEEN	CATHERINE ANNE SIXTUS Appellant
AND	JACINDA KATE ARDERN First Respondent KRIS FAAFOI Second Respondent ANDREW LITTLE Third Respondent ASHLEY BLOOMFIELD Fourth Respondent

Court:	Brown and Katz JJ
Counsel:	Appellant in person P J Gunn and A J Vincent for Respondents
Judgment: (On the papers)	26 October 2023 at 10.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 is declined.
BThe appellant must pay the respondents jointly one set of costs for a standard interlocutory application on a band A basis, with usual disbursements.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

The appellant appeals from a judgment of Cooke J dated 24 May 2022 striking out under r 15.1 of the High Court Rules 2016 the appellant’s statement of claim on the ground the proceeding was an abuse of process.[1]
[1]Sixtus v Ardern [2022] NZHC 1161 [High Court judgment].
On 21 June 2022 the appellant filed a notice of appeal against that decision. She has not yet paid the filing fee in respect of her appeal and consequently has been unable to apply for the allocation of a hearing date as required by r 43(1) of the Court of Appeal (Civil) Rules 2005 (the Rules).[2]
[2]Rule 37(2) specifies that an appellant may not apply for the allocation of a hearing date under r 38(1) if they are in default of any obligation to pay prescribed fees.
On 23 May 2023 the appellant filed an interlocutory application under r 43(2) for an extension of time for complying with r 43(1). The respondents oppose the application.

The High Court judgment

The appellant’s statement of claim was filed and served in March 2022. The nature of the claim was unclear. Declaratory relief was sought in the following terms:[3]
1. Do pray A declaration to consolidate the 1865–1908 native rights Acts and including a new declaration to deem European progeny and Native ma-ori progeny, posterities and New Zealand people - to be deemed to be natural-born subjects of (H)er Majesty Queen Elizabeth II of United Kingdom and Ireland as it pleased Almighty God.
And to declare that the Native AB-original “will” of 1865 and European Ancient “will” of 1688 English speakers of New Zealand to (t)heir progeny be protected by the Queens Courts of Law to continue to extend over the persons and properties of all Her Majesty’s subjects within New Zealand.
2.Do pray A declaration to the affect clearly stating the applicants’ Ancient 1688 subject right under Almighty God exists pursuant to s 28 Other rights and freedoms not affected of the 1990 New Zealand bill of right ordinary law, without ordering any specific action pursuant to section 2 of the Declaratory Judgements Act 1908.
3.Do pray A declaration to the affect that when two subordinating laws (1993 electoral Act 55 (b)(c) and 55 AA) conflict…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sixtus v Ardern

Details

AGLC: Sixtus v Ardern [2023] NZCA 521
Case: [2023] NZCA 521
Decision Date: 26 October 2023 at 10.30 am

CaseChat Overview and Summary

The appellant, Catherine Anne Sixtus, appeals against a decision of Cooke J to strike out her statement of claim under rule 15.1 of the High Court Rules 2016. The respondents are Jacinda Kate Ardern, Kris Faafoi, Andrew Little, and Ashley Bloomfield. The appeal was dismissed by the Court of Appeal, which declined an application for an extension of time for complying with a rule requiring the payment of prescribed fees. The Court of Appeal found that the appellant’s appeal was meritless and the application for an extension of time was declined. The appellant was ordered to pay the respondents jointly one set of costs for a standard interlocutory application on a band A basis, with usual disbursements.

The appellant filed a statement of claim in March 2022, seeking declaratory relief in relation to various legislative matters. Cooke J struck out the claim, finding that the allegations were unintelligible and many were not within the jurisdiction of the Court. The appellant filed a notice of appeal in June 2022 but has not paid the filing fee. The appellant applied for an extension of time to pay the fee, but the respondents opposed the application.

The Court of Appeal considered the principles established in Almond v Read, which state that the exercise of the discretion to extend time should be guided by the interests of justice. The Court identified factors including the length of the delay, the reasons for the delay, and the conduct of the parties. The Court also noted that the merits of the appeal may be relevant, but an extension of time should not be refused based solely on the lack of merit unless the appeal is clearly hopeless. The Court found that the appellant had not provided an adequate explanation for the delay and that the appeal was meritless. The Court declined the application for an extension of time.

Orders