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

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”.
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.
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.
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.
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.
The appellant then applied for review of this decision under r…

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: [2018] NZCA 524
Decision Date: 23 November 2018 at 2.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand reviewed the Registrar's decision refusing to dispense with security for costs in an appeal brought by Dwayne Russell Warakihi Maaka Smyth-Davoren against Elizabeth II, in her personal capacity. The appeal stemmed from two proceedings brought against the Queen, which the High Court had struck out or stayed due to their incoherent and abusive nature. The Registrar had declined Smyth-Davoren's application to waive the security for costs, which the appellant sought to have reviewed. The court considered whether the appeal had merit and whether a solvent appellant would reasonably wish to prosecute it. The court found that neither proceeding had any prospects of success and that a solvent appellant would not reasonably wish to pursue the appeal, particularly given the procedural order directing the appellant to correspond with Crown Law and amend the pleadings. Consequently, the application for review was declined, and the Registrar's decision was upheld.

The primary legal issue before the court was whether the Registrar's decision to refuse to dispense with security for costs in the appeal was correct. The court had to assess the merits of the appeal to determine if it met the 'solvent appellant' test, which requires that the appeal has sufficient merit for a solvent appellant to reasonably wish to prosecute it. The court had to determine if the appeal had any prospects of success and if it involved issues of public interest that might justify waiving the requirement for security for costs. The court found that neither of the proceedings had any prospects of success and that a solvent appellant would not reasonably wish to pursue the appeal.

The court noted that the default position is that security for costs should be provided for an appeal to the Court of Appeal. A departure from this principle would be exceptional and only appropriate if it was necessary to require the respondent to defend the challenged judgment without the usual protection as to costs that security for costs provides. The court accepted that Smyth-Davoren was impecunious but concluded that the appeal lacked merit. The proceedings were largely incoherent and abusive of the court process, and the court found no reasonable basis for a solvent appellant to wish to pursue the appeal. The court upheld the Registrar's decision, finding that the appeal did not meet the necessary criteria for dispensing with security for costs.

The court declined the application for review of the Registrar's decision and upheld the requirement for Smyth-Davoren to provide security for costs in the sum of $6,600. The appeal was dismissed, and the proceedings against the Queen were stayed as per the earlier decision of Whata J. The court's final order was that the application for review was declined, and the Registrar's decision refusing to dispense with security for costs was upheld.

Orders