Smith v M�ori Land Court

[2022] NZHC 1028

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-485-218

[2022] NZHC 1028

UNDER

Section 80 of the Judicial Procedure Act 2016, s 27 of the New Zealand Bill of Rights Act 1990

IN THE MATTER OF

Judicial review

BETWEEN

BRUCE WINSTON ANDERSON SMITH DIGGA-BYGUM LTD

MANDAMUS P2/5 LTD

BRUCE WINSTON ANDERSON SMITH LTD

Plaintiffs

AND

MĀORI LAND COURT SHERIFF JOHN EARLES

HIGH COURT OF NEW ZEALAND MĀORI TRUSTEE/TE TUMU PAEROA CLINTON HEMANA

KEVIN SMITH

Defendants

On the papers:
Judgment:	12 May 2022

JUDGMENT OF CHURCHMAN J

[1]    These proceedings, which were accepted for filing on 22 April 2022, have been referred to me by the Registrar pursuant to r 5.35A of the High Court Rules 2016 (HCR).

[2]    Rule 5.35A provides that the Registrar may refer plainly abusive proceedings to a High Court Judge before service. Where the Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process

SMITH & ORS v MĀORI LAND COURT & ORS [2022] NZHC 1028 [12 May 2022]

of the Court, the Registrar may as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under r 5.35B.

[3]    Rule 5.35B applies if a Judge to whom a Registrar refers a proceeding under  r 5.35A is satisfied that the proceeding is plainly an abuse of the process of the Court. The Judge may make an order or give directions to ensure that the proceeding is disposed of which may include striking the proceedings out, staying the proceedings, or making an order that documents not be served until the stay is lifted.

[4]    Rule 5.35B(3) provides that if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

[5]    Rule 5.35B(4) provides that a copy of a Judge’s decision to strike out a proceeding must also be served on the person named as a party or, if more than one person is named, those persons named as parties to the proceeding.

[6]    The concept of “plainly abusive proceeding” is not defined in r 5.35A. Where a proceeding seeks to collaterally challenge and raise issues that were dealt with previously in judgments of the Court, it will be regarded as plainly abusive.1

[7]    Proceedings against Judges are also likely to be struck out because Judges have immunity from being sued under the civil law for acts done in their official capacity.2

Relevant facts

[8]    The plaintiff, Mr B W A Smith, is a self-represented litigant who has a history of commencing proceedings against the Māori Land Court and High Court. These proposed proceedings appear to seek Judicial Review of some six decisions of the Māori Land Court, the actions of a number of members of the High Court registry, and seven decisions of the High Court.

1      See Re McNab [2018] NZHC 1817 and Tranter v R [2019] NZHC 244.

2      See Dunstan v Attorney-General [2021] NZHC 1670.

[9]The defendants are described as being:

(a)the Māori Land Court;

(b)Sheriff John Earles;

(c)the High Court of New Zealand;

(d)the Māori Trustee/Te Tumu Paeroa;

(e)Clinton Hemana; and

(f)Kevin Smith.

[10]   The plaintiff has a long running dispute with other members of his family in relation to certain properties belonging to the family’s members as well as entities related to the family.

[11]   There have been a number of proceedings in the Māori Land Court and the High Court. The latest of the proceedings in the High Court are those that were the subject of a decision by Cooke J on 24 February 2022.3

[12]   At [6] of that decision, Cooke J referred to there having been at least six judgments in the High Court commencing with Māori Trustee v Smith.4

[13]   In that decision, Cooke J dismissed the proceedings before him. He noted that the proceedings in that case appeared to be dependent on the plaintiff establishing that earlier decisions of the Māori Land Court, and of the High Court, were wrong. He stated:5

It is clear that such a proceeding would be an abuse of process. A decision of a Court finally determines the issues between the parties subject only to rights of appeal. A plaintiff cannot simply bring a new proceeding alleging that the earlier decisions are wrong. This is an abuse of process.

3      Smith v Smith [2022] NZHC 272.

4      Māori Trustee v Smith [2018] NZHC 2898, and running through to Māori Trustee v Smith [2019] NZHC 1701.

5 At [20].

(footnote omitted).

[14]   In the same decision at [22], Cooke J noted that not only was the plaintiff seeking to reopen matters that had been conclusively determined, but was making allegations of criminal conduct against the lawyers and Judges that have dealt with his case. That was also described as an abuse of process.

[15]   At the end of his decision, Cooke J indicated that should any further proceedings be filed in relation to the same matters as had been previously considered, those proceedings may need to be considered under r 5.35A.

Analysis

[16]   Although the “application for a Judicial Review” filed in these proceedings is lengthy and, at times incomprehensible, it is clear that it seeks to overturn a number of decisions made in the Māori Land Court, to challenge the issue of two warrants issued by the Sheriff of the High Court, and to “quash or cancel” seven decisions of the High Court including the recent decision of Cooke J.

[17]   For the reasons discussed above, I am satisfied that the proceedings are therefore an abuse of process, being an attempt to improperly challenge earlier Court decisions which the plaintiff is unhappy with.

[18]   As was explained carefully to the plaintiff by Cooke  J  in  the  decision of  24 February 2022, a plaintiff cannot simply bring a new proceeding alleging that earlier decisions are wrong.   I therefore strike these proceedings out pursuant to       r 5.35B(2)(a).

[19]   As I am doing so without giving Mr  Smith an opportunity to be heard,          r 5.35B(3) requires me to provide a statement of Mr Smith’s right to appeal this decision.

[20]   Section 56(4) of the Senior Courts Act provides that where the High Court has made an order or decision striking out or dismissing the whole or part of a proceeding, claim or defence, or granting summary judgment, then any party to that proceeding

may appeal that decision, without leave, to the Court of Appeal. The ability to appeal without leave in such circumstances exists because an order striking out or summarily determining a proceeding has the effect of finally determining that proceeding.

[21]As noted above, I am striking out Mr Smith’s claims in their entirety.

[22]   As such, Mr Smith may, if he so wishes, file a notice of appeal against this decision, without leave, in the Court of Appeal, within 20 working days of this judgment being given.6 He must file and serve the notice of appeal on all parties, and in the form required by the Court of Appeal (Civil) Rules 2005.

[23]   I also direct that this judgment be served on all named parties to this proceeding pursuant to r 5.35B(4).

Churchman J

cc: B W A Smith

6      Court of Appeal (Civil) Rules 2005, r 29(1)(a).