Smyth-Davoren v Parker

[2018] NZHC 3034

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2018-485-873

CIV 2018-485-874

[2018] NZHC 3034

BETWEEN

DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN

Plaintiff

AND

DAVID PARKER

First Defendant

JACINDA ARDERN
Second Defendant

ANDREW LITTLE
Third Defendant

PATSY REDDY
Fourth Defendant

VICKI McCALL

Fifth Defendant

On the papers
Judgment:	22 November 2018

JUDGMENT OF MALLON J

Introduction

[1]    Mr Smyth-Davoren presented for filing in the Wellington registry two proceedings each against the above-named defendants. They have been given the above-shown registry numbers: CIV 2018-485-873 and CIV 2018-485-874. I will refer to these as the 873 proceeding and the 874 proceeding respectively. The proceedings were referred to me by the Registrar under r 5.35A of the High Court Rules 2016.

SMYTH-DAVOREN v DAVID PARKER [2018] NZHC 3034 [22 November 2018]

The proceedings

[2]    Each proceeding purports to be filed under 45 pieces of legislation.1 This legislation is listed on the front of each proceeding. They cover a broad spectrum. For example, they include the Act of Settlement 1701, The Glorious Revolution 1688, the Bill of Rights Act 1689, the Legislative Council Abolition Act 1950, the Social Security Act 1964, the Crimes Act 1961, the Resource Management Act 1991, the Mental Health Act 1992, the Passports Act 1992, the Citizens Initiated Referenda Act 1993, the Employment Relations Act 2000, the Public Trust Act 2001, the Senior Courts Act 2016 and the Judicial Review Procedure Act 2016.

[3]    The 873 proceeding states, amongst other things, that it concerns Mr Smyth- Davoren’s titles and rights and that “I do not and have never felt like I have any titles, rights and laws protecting me at all”. It describes some instances where mail was allegedly stolen and an incident(s) involving his neighbour when the police were called. It expresses concern about society and institutions or bodies within it and says “I am a ‘person’, ‘freeman’ I have no acknowledgment, no documentation of legitimacies that I legally am accepted to be the titles ‘person’ and ‘freeman’”.

[4]    Under the heading “cause(s) of action” there are two paragraphs. The first paragraph explains, amongst other things, that the contents stated are the causes of action and Mr Smyth-Davoren has no other options. The second paragraph is in general terms a claim about Mr Smyth-Davoren’s rights and again refers to him being a “person” and a “freeman” as well as being “sovereign flesh and blood man”. It says that he has “never been given rights and titles in a Court sealed and Judge’s signature documentation (and this documentation with my full legal name and identity)”.

[5]Under the heading “Application for Relief” the pleading is:

On the above basis the plaintiff seeks the following relief or remedy:

1.     [I] Proposed Plaintiff please remove from my titles “person” and “freeman” and my body, the inappropriate obligations and what I term as slave threats, and or possible servitude availability servant threats. (slave threats, and servant threats for worthless poor businesses and companies,

1      The legislation listed on the proceedings is numbered 1 to 58 but there are numbers omitted in the list.

and for Case Managers and Ministers). By Court Order. Involving the authorities stated herein (Community Link Office at Five Cross Roads in Hamilton). (New Zealand Police). (defendants please use discretion to direct this claim to colleagues/other officials “where duties are the like and obligations are the like”). This is a revocation of titles and rights of Acts of New Zealand Parliament.

2.     Defendants please use discretion my Stare Decisis, Case of First Impression, and Rule according to higher law. “person”, “freeman” transportation/traveller rights and titles be granted by Court Order. Involving New Zealand Police, AA Driver Licensing and NZTA or New Zealand Transport Agency (motor vehicle registration/s and driver licensing), my titles “person”, “freeman” (defendants please use discretion to direct this claim to colleagues/other officials “where duties are the like and obligations are the like”). This is a revocation of titles and rights of Acts of New Zealand Parliament.

3.     Defendants be sent Court Order (or Judge) to provide documentation of all my, inalienable rights, incorporeal rights, intrinsic rights, Right to Welfare, Right of Religion, Right to Education, Civil Rights and my New Zealand Common Law (precedent) rights, and my English Common Law (precedent) rights, and my Sumptuary Law rights with New Zealand Police where concerns myself as a “person” and “freeman”. And all my rights so recognised under or providable from, the Acts of New Zeeland (sic) Parliament, documents of Parliamentary Sovereignty and Constitutional Monarchy the law/s stated herein. I require documentation of this with the Court seal, Judge’s signature and my full legal name and my identity on this documentation.

[6]    The 874 proceeding concerns a claim to the property and other interests of Sir Ngatata Love. The proceeding alleges that Mr Smyth-Davoren is not legally able to obtain evidence (etc) concerning these interests and the defendant has a duty to search for and seize the property, files and evidence to transfer it to Mr Smyth-Davoren. The pleading sets out some information about family relationships and some items which are said to be “strikingly matters that need to be transferred to me”. It then pleads the cause of action as follows:

Cause(s) of Action

1.     [I] Proposed Plaintiff declare the deceased person concerned herein, was a New Zealand Government famous kind of person. I a blood relative of the concerned deceased, I believe it is my responsibility to take legal action on investigating, or asking the appropriate law officials, or New Zealand Government office holders (defendants). To take the legal actions in order for my claims to be granted to me, by the jurisdiction of the High Court of New Zealand at Hamilton. I cannot do anything more legally effective than attempt to file this herein court form with a appropriate court. This herein contents is Self Represented for myself, and since I am not a legal professional, I herein ask the court grant my

herein claims to be to deal with in a legal manner myself once granted my claims.

Application for Relief

On the above basis the plaintiff seeks the following relief or remedy:

1.     [I] Proposed Plaintiff hereby ask the defendants (direct to other legal officials, colleagues) in power to do so. To be sent Court Order in order to search for and locate (take legal seizure of including the Court, needing to issue New Zealand Police Search Warrants, for arrests if need be, and transfer (to me) of the herein deceased person’s property, money, originals or copies of documents/files/evidence. Of which pertain to, personal, legal or business, transfer to me a rightful heir and rightful claimant). All and any old, new and current property, money (legal matters) in the nature of personal, legal and business to be transferred to me, and I hereby ask for copies of all files/documents/evidence found in relation to this. (I take the right to deceased to become bank rupt (sic), and debt accounts I have interest in to be transferred to me, on full disclosure of the debt accounts facts).

2.     May I be sent Court Order by email at [email protected] on the actions or judgements/orders, the jurisdiction of the High Court of New Zealand at Hamilton, are able to grant to me. Based on all the contents I personally have stated herein.

My assessment

[7]    In short, Mr Smyth-Davoren has generalised concerns about his rights and claims to have a right to certain property. However, to bring a proceeding he must set out a legal cause of action and that cause of action must be brought against the relevant defendant under the law. Neither proceeding sets out a legal cause action, let alone a one that properly can be brought against any of the named defendants.

[8]    Proceedings referred under r 5.35A are considered by a Judge under r 5.35B. Under r 5.35B I may make certain orders or give directions to ensure the proceeding is disposed of or proceeds in a way that complies with the rules if I am satisfied the proceedings are “plainly an abuse of the process of the court”. I am satisfied the proceedings meet this test. None of the defendants should be required to file a defence to claims that are not legally available against them. The Court would be exercising poor control of its processes if it allowed the proceedings to continue, which would require the defendants to respond to them through the court processes.2

2      Mathiesen v Fildes [2017] NZHC 2258 at [4] and Mathiesen v Slevin [2018] NZHC 1032 at [6].

[9]    I consider the appropriate course is to strike out the proceedings.3 The proceedings are not capable of being amended to turn Mr Smyth-Davoren’s concerns as alleged into valid claims against these defendants able to be pursued through the High Court.

Result

[10]   These proceedings (which have the registry numbers CIV 2018-485-873 and CIV 2018-485-874) are struck out. Mr Smyth-Davoren has a right of appeal against this decision.4

Mallon J

3      High Court Rules 2016, r 5.35(2)(a).

4      Rule 5.35B(3).