Smyth-Davoren v Mountbatten - [2019] NZCA 186

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA397/2018
[2019] NZCA 186

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

Court:	Brown and Courtney JJ
Counsel:	Appellant in person V McCall for Respondent
Judgment: (On the papers)	27 May 2019 at 11.00 am

JUDGMENT OF THE COURT

The application for an extension of time to file the case on appeal and apply for the allocation of a hearing date is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

The appellant applies under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time to apply for the allocation of a hearing date and to file the case on appeal.

Background

In two proceedings brought by the appellant against a party described as “Elizabeth II Alexandra Mary Mountbatten (born Windsor)” Whata J issued a minute on 25 June 2018 making the following orders:[1]
(a)an order striking out proceeding CIV-2018-419-174;
(b)an order staying proceeding CIV-2018-419-178 pending Crown Law identifying the appropriate defendant or defendants in the proceeding and the appellant then filing an amended pleading substituting the names of the persons who should properly be named as defendant(s).
[1]Smyth-Davoren v Mountbatten (Born Windsor) HC Hamilton CIV-2018-419-174, 25 June 2018 (Minute of Whata J).
The Judge described the 174 proceeding in this manner:
[2]       The statement of claim in proceeding 0174 seeks, it appears:
[i]       a declaration affirming 34 rights at law;
[ii]      orders relating to the plaintiff’s legal status;
[iii]      orders relating to the status of another identified person;
[iv]     orders relating to the plaintiff’s entitlements;
[v]      a specific order requesting enrolment in a theology course;
[vi]orders “to let out of prison, Ngatata Love, based on the given alleged facts of the plaintiff’s opinion of the imprisonment, decoding of legal documents and acceptance of money”.
[3]There is a supporting affidavit of “sovereignty.” The plaintiff deposes, among other things:
[I] am a natural, freeborn sovereign individual, without subjects. I am neither subject to any entity anywhere, nor is any entity subject to me. I neither dominate anyone, nor am I dominated.
I am not a “person” as defined in “statutes” or “New Zealand Legislation(s)” when such definition includes “artificial entities”. I refuse to be treated as a “federally” or “state”, of New Zealand Government, or British Crown, created entity. Which is only capable of exercising certain rights, privileges, or immunities. As specifically “granted” by “federal”, or “state” “governments”. Or New Zealand Government.
I may voluntarily choose to comply with the “laws”, New Zealand Government, which others attempt to impose upon me, but no such “laws”, New Zealand Government, nor their “enforcers”, have any authority over me. I am not in any “jurisdiction”, for I am not of subject status.
The Judge concluded that the pleadings were largely incoherent and an abuse of process. They did not clearly identify any fact, principle or rule of law that might enable the Court…

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] NZCA 186
Decision Date: 27 May 2019 at 11.00 am

CaseChat Overview and Summary

In the case of Smyth-Davoren v Mountbatten, the appellant, Dwayne Russell Warakihi Maaka Smyth-Davoren, sought an extension of time to file the case on appeal and apply for the allocation of a hearing date against the respondent, Elizabeth II Alexandra Mary Mountbatten (born Windsor). The dispute arose from two proceedings brought by the appellant against the respondent, which the High Court had dismissed. The Court of Appeal was required to decide whether to grant the appellant's application for an extension of time under rule 43(2) of the Court of Appeal (Civil) Rules 2005.

The Court of Appeal found that the appellant's application was essentially similar to those made in other matters in this Court, either for leave to appeal under rule 29A or for an extension of time under rule 43(2). The Court considered the appellant's explanation for his failure to comply with the prescribed timeframe and found it to be essentially similar to the reasons advanced in other matters. The Court also considered the substantial volume of material filed by the appellant, which appeared to be incoherent and not directed to the application for an extension of time. The Court agreed with the respondent's submission that the appeal was frivolous and vexatious and should not be further prolonged by an extension of time.

The Court of Appeal declined the application for an extension of time to file the case on appeal and apply for the allocation of a hearing date. This decision was based on the appellant's previous applications, the reasons provided for the delay, the conduct of the parties, and the significance of the issues raised by the proposed appeal. The Court found that the appeal was frivolous and vexatious and that it should not be further prolonged by an extension of time.

Orders