Smith v Smith

[2022] NZHC 272

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-058

[2022] NZHC 272

BETWEEN

BRUCE WINSTON ANDERSON SMITH

Plaintiff

AND

KEVIN EDWARD SMITH

First Defendant

CLINTON ANDREW MAHAKI HEMANA

Second Defendant

HELEN MAREE NATHAN

Third Defendant

TE TUMU PAEROA

Fourth Defendant

GREIG MCKINNON/MCKINNON FAMILY TRUST/PUHORO LIMITED

Fifth Defendant

WARWICK MARTIN BRUCE

Sixth Defendant

BRUCE FARMING LIMITED/BRUCE BROTHERS LIMITED

Seventh Defendant

AON NEW ZEALAND

Eighth Defendant

Hearing:

14 February 2022

Appearances:

Plaintiff in person

O M de Pont for the Eighth Defendant

Judgment:

24 February 2022

JUDGMENT OF COOKE J

SMITH v SMITH [2022] NZHC 272 [24 February 2022]

[1]        The plaintiff seeks judgment by way of formal proof on its statement of claim in these proceedings. The hearing by way of formal proof was set down before me.

[2]        Prior to the hearing counsel for the eighth defendant filed a memorandum dated 10 February 2022 indicating that the eighth defendant had not been properly served. Subsequently by application dated 11  February,  supported by an affidavit  dated     8 February, the eighth defendant has applied for summary judgment.

[3]        At the hearing itself I raised with Mr Smith, and his daughter who sought to speak on his behalf, an issue concerning the validity of the service of the proceedings on all of the defendants. Consequently Mr Smith made an application to adjourn the formal proof hearing to enable the plaintiff to take further service steps. Following the hearing Mr Smith then filed a memorandum dated 15 February including additional material that he asked the Court to take into account on that application.

[4]This judgment deals with that application, and with the proceedings generally.

Background

[5]        This proceeding involves a continuation of a long-running dispute between the plaintiff and other members of his family in relation to entitlements to certain properties belonging to the family members, and entities related to the family.

[6]        I will not seek to summarise what has been a very long-running dispute involving proceedings in both the Maori Land Court and the High Court. The High Court proceedings alone have involved at least six judgments.1

[7]        The present proceeding was commenced in the District Court under CIV-2021- 041-201. By minute dated 13 July 2021 Judge Hinton reviewed the claims advanced by the plaintiff finding that none of them were within the jurisdiction of the District Court and transferring the proceedings to the High Court under s 90 of the District Court Act.

1      Commencing with Maori Trustee v Smith [2018] NZHC 2898 and running through to Maori Trustee v Smith [2019] NZHC 1701.

[8]        When the proceedings were progressed in this Court the plaintiff sought to proceed on a without notice basis. In particular the plaintiff sought a without notice injunction and other orders. By minute dated 15 October 2021 Grice J dismissed those applications on the basis that the procedure for seeking orders on a without notice set by r 7.23 of the High Court Rules 2016 had not been followed, and that in any event the requirements for the matter to be dealt with on a without notice basis were not met. She directed that the usual processes for proceedings of this nature should be undertaken and that a copy of her minute and that of Judge Hinton’s should also be served on the defendants.

[9]        The plaintiff then sought that judgment be entered by way of formal proof. This also became before Grice J on 30 November 2021, and by minute of that date Grice J declined to grant judgment on that basis. No affidavit or service appeared to have been filed in accordance with the High Court Rules. She directed that following the filing of a proper affidavit of service the proceedings should be set down for a formal proof hearing with half a day allowed. She also directed the plaintiff’s attention to r 15.9(4) of the High Court Rules requiring the plaintiff to file an affidavit of evidence establishing each cause of action relied on and, if damages were sought, providing sufficient information to enable the Judge to calculate and fix damages. She directed that the matter not be set down until an affidavit of service was filed.

[10]      I also note that the plaintiff contended that Grice J should recuse herself at this point. She recorded that any application for recusal should be formally advanced.

[11]      An affidavit of service was subsequently filed by the plaintiff and the application for judgment by way of formal proof was accordingly set down for hearing. This is the hearing that has now occurred before me.

Service inadequate

[12]      The affidavit of service that has been filed shows that the proceedings have not been properly served.

[13]      It is the second affidavit of service of the plaintiff dated 3 December 2021. First I note that it purports to provide evidence of service of only two documents, the

minute of Judge Hinton and the minute of Justice Grice dated 15 October. Secondly, and more importantly the plaintiff says in his affidavit that service has been effected because the documents were despatched by overnight courier post with tracking instructions. The plaintiff says that that was the only mode of service available to him. He says in his affidavit:

Courier post being the only method of service as the defendants -

i)Uphold an unlawful contract between New Zealand Police (Gisbome, Wairoa, Napier) - with trespass and heavy surveillance obstructing safe passage to enter properties; and

ii)Have become hostile where there is a serious risk to life.

[14]      This does not mean that service has been properly effected in accordance with r 6.1 of the High Court Rules. Rule 6.6 specifies when it may take place by way of post, and the circumstances do not arise here. Service by way of post is not normally effective service.2

[15]      I drew the plaintiff’s attention to this problem at the hearing, indicating that I had no jurisdiction to enter judgment by way of formal proof in those circumstances. He responded by making an application to adjourn the hearing to enable service to be effected.

[16]      Accordingly it becomes necessary for me to consider whether to simply dismiss the application, or grant the adjournment to allow service to be effected.

Adjournment application

[17]      In advancing the adjournment application Mr Smith pointed out that he was a lay litigant who had some difficulty in knowing the formal requirements of the Court, and to the substantial merits of his claims as he has revealed in a number of documents he has filed which I have taken into account.

[18]      The Court should exercise care when addressing claims brought by litigants in person which are deficient for technical reasons, as such persons can have difficulties

2      See Moonlight Farms Trust Ltd v Powell Land Holdings Ltd [2019] NZHC 861.

in meeting all those requirements. Notwithstanding these difficulties I have decided that it is inappropriate to grant the adjournment, and that I have decided I should dismiss the proceedings.

[19]      First the failure to properly attend to service is one of a series of procedural inadequacies with this proceeding. The proceeding was first commenced in the wrong Court. When it was transferred from the District Court the plaintiff then sought judgment without giving any notice to the defendants. It was obvious that no grounds for doing so existed, and that application was properly dismissed by Grice J. Grice J then specified that the proceedings needed to be properly served in accordance with the rules. But the plaintiff has failed to do so.

[20]      The second point is that the pleading appears to be an abuse of process. It is not easy to discern the allegations that are being advanced by the plaintiff. But ultimately the claim appears to be dependent on the plaintiff establishing that the earlier decisions of the Maori Land Court, and of the High Court were wrong. Indeed when I raised this with the plaintiff at the hearing he (and his daughter) confirmed that his claim depended on showing that the earlier decisions of the Court were wrong. 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.3 A plaintiff cannot simply bring a new proceeding alleging that the earlier decisions are wrong. This is an abuse of process.

[21]      Finally the terms of the new proceeding involve allegations that are in themselves an abuse of process. In his affidavit sworn 6 October 2021 the plaintiff explains in paragraph 18 that particular persons have “certified criminal forfeiture of properties … without jurisdiction” and he lists five lawyers who I understand to be his own former lawyers, nine lawyers who I understand to have acted for the opposing party to the proceedings, and six judicial officers, including Grice J. Earlier in paragraph 9 the plaintiff says that “after an evaluation of criminal indictments and recorded intent” that he has filed a series of private prosecutions, and his list of perpetrators include not only the defendants but Crown counsel and Justice Grice.

3      Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94; [2013] 1 NZLR 804 at [28].

[22]      It appears, therefore, that no only are the plaintiff’s seeking to reopen matters that have already been conclusively determined against him, but that he is now making allegations of criminal conduct against the lawyers and Judges that have dealt with his case. This is an abuse of process.

[23]      For these reasons I see no prospect of judgment by way of formal proof being granted to the plaintiff on his claims, I accordingly decline the application to adjourn the proceeding, and I dismiss the proceedings.

Claim against Aon New Zealand

[24]      The plaintiff claims include a claim against Aon New Zealand, although I am presently unsure which legal entity is the suggested defendant. Counsel for Aon say the proceeding has not been properly served, and without prejudice to that contention seeks to have summary judgment entered against the plaintiff.

[25]      Ms du Pont agreed that if the proceedings were dismissed there was no need to timetable the summary judgment application but sought directions in relation to that application should the proceeding not be dismissed.

[26]      It is clear that the proceedings against Aon have not been properly served. A copy of the statement of claim without its full annexures was provided to a person at a Aon branch, but this does not amount to service in accordance with r 6.1. Again I would adjourn the proceeding were there good reasons to do so, but for the reasons outlined above I do not think the proceedings should be permitted to continue, and in any event there is no good reason to grant an adjournment to allow them to proceed.

Conclusion

[27]      The plaintiff’s application for judgment by way of formal proof is declined, and the proceedings are dismissed. Any question of costs is reserved. I note any further filing of proceedings relating to the same matters may need to be considered under r 5.35A.

[28]      Before concluding it is appropriate for me to acknowledge that the plaintiff, and his daughter were perfectly respectful at the hearing before me. As I acknowledged to them at the time it is apparent that the Court proceedings have been enormously stressful for the plaintiff and his family, and that they are deeply upset at what has occurred. In those circumstances, with emotions running high, they are to be commended for the respectful way in which they conducted themselves at the hearing.

Cooke J

Solicitors:
MinterEllisonRuddWatts, Auckland for the Eighth Defendant