Smyth-Davoren v Parker - [2019] NZCA 181

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 Applicant
AND	DAVID PARKER First Respondent JACINDA ARDERN Second Respondent ANDREW LITTLE Third Respondent

Court:	Brown and Courtney JJ
Counsel:	Applicant in person V McCall for Respondents
Judgment: (On the papers)	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…

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 181
Decision Date: 24 May 2019 at 3.30 pm

CaseChat Overview and Summary

The applicant, Dwayne Russell Warakihi Maaka Smyth-Davoren, filed a proceeding in the High Court at Hamilton against David Parker, Jacinda Ardern, and Andrew Little. The claim was struck out by Muir J as being plainly abusive in its current form, prompting Smyth-Davoren to apply for an extension of time to appeal this decision to the Court of Appeal of New Zealand. The respondents argued that the appeal was hopeless and that the proceeding should not be allowed to proceed.

The court had to determine whether the applicant’s proposed appeal from the striking out of his proceeding was likely to succeed. In making this determination, the court was required to consider a range of factors, including the length of the delay in filing the appeal, the reasons for the delay, the conduct of the parties, and the significance of the issues raised by the proposed appeal. The court also had to consider whether the appeal was frivolous or vexatious.

The court found that the applicant's proceeding was in the hopeless category and that there was no justification for granting leave to extend the time to file an appeal. The court was satisfied that the applicant’s proceeding raised issues concerning Māori land, which were justiciable in the Māori Land Court, and that the balance of the claim sought the High Court’s involvement in an administrative process provided for in the Official Information Act 1982. The court concluded that the proposed appeal was frivolous and vexatious and declined the application for an extension of time to appeal.

The application for an extension of time to appeal is declined.

Orders