Smyth-Davoren v Clark

[2019] NZHC 1611

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-372

[2019] NZHC 1611

UNDER

the International Agreement between Australia and New Zealand and other listed instruments

IN THE MATTER OF

International Agreement between Australia and New Zealand and other listed matters

BETWEEN

DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN

Plaintiff

AND

KAREN LOUISE CLARK

Defendant

Hearing:	On the papers
Judgment:	11 July 2019

JUDGMENT OF COOKE J

[1]                 This proposed set of proceedings has been referred to me as Duty Judge by the Registrar. It is referred under r 5.35A of the High Court Rules 2016 so that I may consider exercising the power under r 5.35B(2)(a) to strike the proceedings out on the basis that they are plainly abusive.

[2]                 Having considered the proceedings, and the materials that have been filed by the proposed plaintiff, I have concluded that the proceedings are plainly an abuse of process of the Court and that they should be struck out. These are the reasons for my decision.

SMYTH-DAVOREN v CLARK [2019] NZHC 1611 [11 July 2019]

[3]                 The proposed proceedings refer to a number of matters and include not only a purported statement of claim and notice of proceedings but also applications for waiver of fees and include a number of attachments.

[4]                 Having considered the material it is very difficult to understand what the plaintiff claims. Perhaps the best indication of the claims is provided in what appears to be a covering letter, or document which states:

This herein informal letter is for the Judge addressed above, and or for the Judge(s), who will take this herein judicial proceeding, of “Statement of Claim application for review Judicial Review”. The resembled meaning of “application for review” for Right to Welfare.

[5]The letter goes on to say:

I hereby ask the Judge(s) know I am wanting, Judicial Review of the Right to Welfare made for me. I believe the Right to Welfare is subject to, the principle “Rule of Law”, the "Public Law" (of which Right to Welfare is a Public Law right). And of which any Right to Welfare is made, according to a administrative decision, of the New Zealand Government, Ministry of Social Development, and a particular office of the Ministry of Social Development.

[6]The letter ends:

I believe the Judge who is my Defendant, should take my herein Statement of Claim application for review. Filed against herself, by me the Self Represented Plaintiff.

[7]                 The general subject matter seems to be a claim that the plaintiff is entitled to welfare payments, and particularly disability support pension payments from the Government of the Commonwealth of Australia. It may have broader scope, however. It is not possible to understand the claims in other than a very general way, however.

[8]Rule 5.35A provides:

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1)This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)However, the Registrar may,—

(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

[9]Rule 5.35B also provides:

5.35B Judge’s powers to make orders and give directions before service

(1)This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.

(2)The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—

(a)the proceeding be struck out:

(b)the proceeding be stayed until further order:

(c)documents for service be kept by the court and not be served until the stay is lifted:

(d)no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).

(3)Rule 7.43(3) does not apply. However, 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.

(4)A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

(5)See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.

[10]              The power in the rules is to be exercised sparingly. The Courts have adopted the following test:1

1      Mathiesen v Fildes [2017] NZHC 2258 at [4]–[7]; Mathiesen v Slevin [2018] NZHC 1032 at [6].

(a)whether it would be manifestly unfair to the respondents that they be required to respond; and

(b)whether right thinking people would regard this Court as exercising very poor control of its processes for it to allow the applicant’s documents to be treated as a proper document.

[11]              In the present case I have little hesitation in saying that the proceedings should be struck out as an abuse of process under r 5.35B. I note that the plaintiff has already had two previous sets of proceedings struck out under these rules in Smyth-Davoren v Parker [2018] NZHC 1034 and Smyth-Davoren v Parker [2018] NZHC 3135.

[12]              Any claim that the applicant is entitled to any social welfare payments by the Commonwealth of Australia does not appear to be within the  jurisdiction of the  New Zealand Courts. There is reference in the covering letter to administrative decisions made by the Ministry of Social Welfare, but such decisions are not identified in any clear way. Even if it were within the jurisdiction of the Court, the current proceeding is incomprehensible in terms of any identifiable claim for judicial review. In addition, the identification of a High Court Judge as a defendant is plainly an abuse of process. Any respondent to a judicial review claim would be required to be a person who has exercised a statutory power of decision effecting the applicant for review, with the challenge being within the Court’s jurisdiction. Given the proceedings do not meet the criteria for a validly formulated claim, the test for striking out under r 5.35B is satisfied.

[13]              As is required by r 5.35B(3) I advise that Mr Smyth-Davoren has a right of appeal against this decision.

Cooke J