Smyth-Davoren v Parker
[2019] NZCA 181
•24 May 2019 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA706/2018 [2019] NZCA 181 |
| BETWEEN | DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN |
| AND | DAVID PARKER |
| Court: | Brown and Courtney JJ |
Counsel: | Applicant in person |
Judgment: | 24 May 2019 at 3.30 pm |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
The applicant applies under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal from an order striking out a High Court proceeding.[1]
Background
[1]Smyth-Davoren v Parker HC Hamilton CIV-2018-419-257, 13 September 2018 (Minute of Muir J).
The applicant’s proceeding filed in the High Court at Hamilton as CIV‑2018‑419‑257 naming David Parker, Jacinda Ardern and Andrew Little as defendants was referred to Muir J by the Registrar pursuant to r 5.35A of the High Court Rules 2016. Having carefully reviewed the statement of claim which he found unintelligible, Muir J discerned that the claim comprised two aspects:
· issues concerning the ownership of Māori land and associated entitlements; and
· a claim for delivery up of records relating to the applicant held by various government departments.
With reference to the first aspect, Muir J observed that pursuant to s 18 of Te Ture Whenua Māori Act 1993 issues relating to Māori land are justiciable in the Māori Land Court. Consequently insofar as the claim engaged such issues it should be filed in the Māori Land Court.[2]
[2]At [12].
In respect of the second aspect the Judge recorded that the statement of claim advanced a singular cause of action in the following terms:[3]
I typed document “A” attached, as the evidence of my frustration, torment and evil that is in me. No mercy and no justice given to me. I provide other documents prepared for processing attached. I am not able to do anything else. About problems, claims herein and therein attached documents. New Zealand Post were in possession of mail I have not received back (nor in a good time period while at previous addresses), nor New Zealand Police have been able to help me. Freemasons and the like mentioned herein I believe speak about and can be fooled into talking about my stolen mail and documents, but only by trickery, deceit, persuasion and deception.
[3]At [10].
With reference to that cause of action he concluded:
[13] Insofar as the singular cause of action is concerned, I consider it sufficiently unintelligible that the proceedings are plainly abusive in their current form. I am reinforced in that conclusion by the fact that there is no adequate or even identifiable connection between the cause of action and the proposed relief.
In a minute dated 13 September 2018 Muir J directed that the proceeding be struck out. The applicant failed to file a notice of appeal within the prescribed 20 working day period. On 16 November 2018 the applicant filed the application under r 29A the subject of this judgment.
Applicable principles
As the Supreme Court explained in Almond v Read,[4] the ultimate question when considering the exercise of the discretion to extend time under r 29A is what the interests of justice require. Factors identified as likely to require consideration included:[5]
· the length of the delay;
· the reasons for the delay;
· the conduct of the parties, particularly of the applicant;
· any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome;
· the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
[5]At [38].
The Court recognised that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time because there will be occasions on which the Court will risk facilitating unjustifiable delaying tactics on the part of dilatory or recalcitrant litigants if it does not consider the merits. However the Court identified three qualifications to that principle:[6]
· There will be instances in which the merits or otherwise of a proposed appeal will be overwhelmed by other factors such as the length of the delay and the extent of prejudice.
· The merits will not generally be relevant in a case where there has been insignificant delay as a result of a legal adviser’s error and the proposed respondents have suffered no prejudice beyond the fact of an appeal.
· Consideration of the merits of an appeal in the context of an application to extend time must necessarily be relatively superficial. Consequently a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. An appeal would be hopeless where it could not possibly succeed, the court lacks jurisdiction, there is an abuse of process or the appeal is frivolous or vexatious.
Discussion
[6]At [39].
It is difficult to summarise coherently the applicant’s submissions in the several documents which he has filed in support of his application for an extension of time. In those circumstances first we simply record what we apprehend are the contentions he wishes to advance on his proposed appeal:
10(in regards to this herein court form and the Statement of Claim which was struck out, CIV-2018-419-000257, and the attached hereto Notice of Appeal for this same proceeding). I hereby claim English Common Law, Common Law of New Zealand, and term in law Case of First Impression and Stare Decisis be used by the Judge, to grant me by Court Order my Common Law rights. To hold, possess and exercise a Licence and Photo Identification, for the New Zealand Government, AA Driver Licensing and, New Zealand Transport Agency. The rights I have claimed, and against government stated here I claim to be given, my common law (transportation/traveller) rights. (documentation of my common law rights), And identification to Travel and evidence of my Right to Freedom of Movement common law rights, while considers my interests in owning motor vehicles. As Travel in law has a different definition to Operating and Driving, in regards to common law precedent or term in law Case of First Impression, and or Stare Decisis. And according to the common law of the land (binding and persuasive precedent rules), Statutory Codes/Rights/Laws, and Legislations, and Acts of New Zealand Parliament. My rights and the common law rules are breached, and violated illegally (by Government Officials and Juristic Persons). Because of definitions of words meanings in the law, in regards to my person and sovereign flesh and blood status, including my status as a freeman, laws are violated and my rights breached until Court Order is granted to me in relation to contents/facts stated here. Otherwise hypocrisies and iniquities of abuse of governmental and businesslike powers continues, against me for no reason but jealousies, envies and personal emotional and financial problems of the (royal) greed, rich and poor classed groups and individuals.
We also note the explanation which the applicant provided for failing to file an appeal within time:
I have been exhausted worrying about my rights, my titles and my recompensation claims and my inheritance claims. From the law and New Zealand Government, and from the New Zealand Courts. The jurisdiction of the High Court of New Zealand at Hamilton (a Court of General Jurisdiction), and the jurisdiction of the Court of Appeal of New Zealand (a Court of Record and a Court administering the common law, thus all courts in New Zealand have Stare Decisis whether binding or persuasive precedents/cases), and as stated in my proceeding CIV-2018-419-000257. My exhausted worrying about my rights, titles and my recompensation claims and my inheritance claims, are related in contents and meanings in my stated proceeding, including this herein court form my exhausted worrying is merciless. I have included in my Statement of Claim document stated here, or the contents in my Statement of Claim stated here, does communicate I want my claims/reliefs, which may also be interpreted or it is my intension. I request my claims/documents be sent to the Supreme Court of New Zealand, in order for my claims/reliefs to be granted to me. I do not believe I should be worrying, not after what I have communicated to the courts stated, and government stated here.
The respondent submits that the proceeding is hopeless and that it purports to raise issues similar to those in other proceedings in the High Court which have been struck out as abusive of the Court’s processes.
To the extent that the applicant’s claim raises issues concerning Māori land, we consider that the Judge’s conclusion that such issues are justiciable in the Māori Land Court was correct. Any appeal from the Māori Land Court lies to the Māori Appellate Court with a further right of appeal to this Court. The balance of the claim, as Muir J observed, appears to seek the High Court’s involvement in an administrative process specifically provided for in s 12 of the Official Information Act 1982.
In both respects we consider that the applicant’s claim brought in the High Court was in the hopeless category, as is the proposed appeal to this Court from the High Court’s order striking out the proceeding. There is no justification for a grant of leave to extend the time to file an appeal.
Result
The application for an extension of time to appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondents