Smyth-Davoren v Mountbatten - [2019] NZSC 67

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 48/2019
[2019] NZSC 67

BETWEEN	DWAYNE RUSSELL WARAKIHI MAAKA SMYTH‑DAVOREN Applicant
AND	ELIZABETH II ALEXANDRA MARY MOUNTBATTEN (BORN WINDSOR) Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicant in person V McCall for Respondent
Judgment:	1 July 2019

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B No order for costs.
____________________________________________________________________

REASONS

Mr Smyth‑Davoren seeks leave to appeal to this Court against two decisions of the Court of Appeal. In the first of these decisions, Williams J declined an application for review of the Registrar’s decision refusing to dispense with security for costs.[1] In the second decision, the Court of Appeal declined to grant Mr Smyth‑Davoren an extension of time necessary to allow his appeal to continue.[2]
[1]Smyth‑Davoren v Mountbatten [2018] NZCA 524 [CA (Williams J)].
[2]Smyth‑Davoren v Mountbatten [2019] NZCA 186 (Brown and Courtney JJ) [CA (extension of time)].
The background to these two decisions is set out in the judgment of Williams J. As the Judge explained, Mr Smyth‑Davoren had filed two proceedings in the High Court. Whata J struck out one of those proceedings (described as proceeding 0174) and stayed the second (proceeding 0178) in a minute dated 25 June 2018.[3] Proceeding 0174 was struck out as “largely incoherent and an abuse of process”.[4] Williams J said the claim, to the extent discernible, was for “a ruling from the High Court that [Mr Smyth‑Davoren] was not a person for the purposes of New Zealand law and so not subject to it”.[5]
[3]Smyth-Daveron v Mountbatten HC Hamilton CIV-2018-419-174, 25 June 2018.
[4]CA (Williams J), above n 1, at [3].
[5]At [2].
Of proceeding 0178, Williams J said it was not, in the view of Whata J, “quite so incoherent”.[6] Rather, it sought:[7]
… assistance to identify and determine rights of inheritance to lands, including orders for searching of the files of named Government and other agencies together with costs. In the case of this proceeding, the Judge directed the pleadings be served on Crown Law with an invitation to identify appropriate defendant or defendants. The Judge stayed the proceeding pending Crown Law’s response and the necessary amendments to the pleadings in light of that response.
[6]At [4].
[7]At [4].
Mr Smyth‑Davoren appealed the decision of Whata J to the Court of Appeal. He sought dispensation from payment of security for costs. When that application was declined by the Registrar, he sought a review by a Judge. In declining the review, Williams J was prepared to proceed on the basis that Mr Smyth-Davoren was impecunious. But the Judge agreed with the Registrar that Mr Smyth‑Davoren had no prospects of success in his appeal. Applying the principles set out by this Court in Reekie v Attorney‑General, Williams J said neither appeal was one a solvent appellant would wish to pursue.[8] Proceeding 0174 was as described by Whata J. On proceeding 0178, Williams J made the point…

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.

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Details

Case: [2019] NZSC 67
Decision Date: 1 July 2019

CaseChat Overview and Summary

Dwayne Russell Warakihi Maaka Smyth-Davoren brought an application for leave to appeal to the Supreme Court of New Zealand against two decisions of the Court of Appeal. The first decision declined an application for review of the Registrar's decision refusing to dispense with security for costs. The second decision declined to grant Smyth-Davoren an extension of time necessary to allow his appeal to continue. The background to these decisions involved two proceedings filed by Smyth-Davoren in the High Court. One of the proceedings was struck out, and the other was stayed pending amendments to the pleadings. The Court of Appeal declined Smyth-Davoren's application for dispensation from payment of security for costs and refused an extension of time. The Supreme Court dismissed Smyth-Davoren's application for leave to appeal, finding that no question of general or public importance arose, and there was no appearance of a miscarriage of justice.

The legal issues before the Supreme Court were whether Smyth-Davoren's application for leave to appeal met the criteria for such leave under the Senior Courts Act 2016. The Court had to determine whether the Court of Appeal's assessment of the appeal's prospects of success was correct and whether any question of general or public importance arose. The Court also had to consider whether there was an appearance of a miscarriage of justice in the Court of Appeal's decisions.

The Supreme Court found that Smyth-Davoren's application for leave to appeal did not meet the criteria for such leave. The Court agreed with the Court of Appeal's assessment that the appeal was unlikely to succeed. The Court found that no question of general or public importance arose and that there was no appearance of a miscarriage of justice in the Court of Appeal's decisions. The Court dismissed Smyth-Davoren's application for leave to appeal and made no order for costs.

In conclusion, the Supreme Court dismissed Smyth-Davoren's application for leave to appeal against two decisions of the Court of Appeal. The Court found that the appeal was unlikely to succeed, and no question of general or public importance arose. The Court also found that there was no appearance of a miscarriage of justice in the Court of Appeal's decisions. The Supreme Court made no order for costs.

Orders