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…

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 Smyth-Davoren v Clark

Details

AGLC: Smyth-Davoren v Clark [2019] NZHC 1611
Case: [2019] NZHC 1611
Decision Date: 11 July 2019

CaseChat Overview and Summary

In Smyth-Davoren v Clark, Dwayne Russell Warakihi Maaka Smyth-Davoren brought proceedings against Karen Louise Clark in the High Court of New Zealand, Wellington Registry. The plaintiff sought a judicial review of his entitlement to welfare payments, particularly disability support pension payments from the Commonwealth of Australia. The case was referred to the Duty Judge under the High Court Rules 2016, on the basis that it appeared to be an abuse of the court process. The plaintiff, who was self-represented, had previously had two sets of proceedings struck out under similar circumstances.

The primary legal issue was whether the proceedings were an abuse of process under Rule 5.35B of the High Court Rules 2016, justifying their being struck out before being served on the defendant. The court had to determine if it would be manifestly unfair for the defendant to respond and whether right-thinking people would consider the court's process poorly controlled if the application was treated as a proper document. Additionally, the court needed to consider whether the plaintiff's claims, which were difficult to discern, fell within the court's jurisdiction.

The court found that the proceedings were indeed an abuse of process. The plaintiff's claims were incomprehensible, and there was no clear identification of any administrative decisions by the Ministry of Social Development that could be subject to judicial review. Furthermore, the plaintiff's attempt to identify a High Court Judge as a defendant was inappropriate and an abuse of process. Given that the proceedings did not meet the criteria for a validly formulated claim, the court concluded that striking them out was appropriate under Rule 5.35B. The court also noted that the plaintiff had a right to appeal the decision.

Orders