Smyth-Davoren v Mountbatten (born Windsor)

[2018] NZCA 524

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA397/2018
 [2018] NZCA 524

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

Counsel:	Appellant in person V McCall for Respondent
Judgment: (On the papers)	23 November 2018 at 2.00 pm

JUDGMENT OF THE WILLIAMS J
(Review of Registrar’s Decision)

The application for review of the Registrar’s decision refusing to dispense with security for costs is declined.

____________________________________________________________________

REASONS

1. The appellant, Mr Smyth-Davoren, seeks review of the Registrar’s decision declining to dispense with security for costs in this appeal.  By minute of 25 June 2018 Whata J struck out one of the appellant’s proceedings (referred to as proceeding 0174) and stayed the second proceeding (referred to as proceeding 0178).  Both proceedings were brought against the Queen (in her personal capacity).  As Whata J summarised proceeding 0174 sought:

   [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; [and]

   [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”.

2. The thrust of the proceeding (to the extent that it is discernible at all) is that the appellant sought a ruling from the High Court that he was not a person for the purposes of New Zealand law and so not subject to it. 

3. The Judge struck the proceeding out as “largely incoherent and an abuse of process”.  The pleadings, he said, failed to identify any fact, principle or rule of law capable of founding the High Court’s jurisdiction to make the declarations and orders sought.

4. Proceeding 0178 was not, in the Judge’s view, quite so incoherent.  It sought 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.

5. In this Court, the Registrar waived the filing fee for the appeal but on 17 October 2018 declined the appellant’s application to dispense with security for costs in the sum of $6,600.  For the purposes of that application, the Registrar noted there was insufficient information on the point.  But even if impecuniosity could be established, she concluded the appeal involved no issue of public interest, so lacked merit that a reasonable and solvent litigant would not proceed with it, and the costs likely to be incurred by any respondent would be too significant to justify waiver.

6. The appellant then applied for review of this decision under r 7(2) of the Court of Appeal (Civil) Rules 2005 and filed further submissions on 16 November 2018.
   

   [1]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

   [2]At [6].

   [3]At [28].

   [4]At [21].

   [5]At [35].

   A single judge may review such decision in the exercise of powers conferred under s 49(6) of the Senior Courts Act 2016.  The principles to be applied are set out in Reekie v Attorney-General.[1]  The default position is that security for costs should be provided in relation to an appeal to this Court.[2]  And a departure from that principle will be exceptional.[3]  Security for costs may be dispensed with if it is appropriate to require the respondent to defend the challenged judgment without the usual protection as to costs that security for costs will provide.[4]  But access to this Court for impecunious appellants should be preserved where the appeal is one that a solvent appellant would reasonably wish to prosecute.[5]

7. I am prepared to accept for present purposes that the appellant in this case is impecunious and it is necessary therefore to assess in general terms (and with appropriate circumspection) the merits of the appeal to determine whether the solvent appellant test in Reekie is made out.

8. I agree with the Registrar that the appellant has no prospects of success in this appeal.  The Judge’s description of the nature of proceeding 0174 is accurate.  The way the claim is pleaded, it is relatively difficult to identify a coherent objective against which the test in Reekie can be applied.  It is most unlikely therefore that a solvent appellant would wish to pursue it.

9. As to proceeding 0178, the order the Judge made was a procedural one: effectively the appellant was directed to correspond with Crown Law over the appropriate defendant and make any necessary amendments to the pleadings before further steps could be taken.  Such order was both sensible and of real assistance to the appellant.  There is no prospect that it would be overturned on appeal.  A solvent appellant would not reasonably wish to prosecute this aspect of the appeal either.

10. The application for review of Registrar’s decision refusing to dispense with security for costs is declined.

Solicitors:
Crown Law Office, Wellington for Respondent