Smyth-Davoren v Sepulon

[2019] NZHC 2138

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-510

[2019] NZHC 2138

BETWEEN

DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN

Plaintiff

AND

CARMEL SEPULON, MINISTER OF SOCIAL DEVELOPMENT

First Defendant

PHIL TWYFORD, MINISTER OF HOUSING

Second Defendant

CHRIS HIPKINS, MINISTER OF

EDUCATION and MINISTER OF STATE SERVICES

Third Defendant

DAVID PARKER, ATTORNEY-GENERAL

Fourth Defendant

CIV-2019-485-511

BETWEEN

DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN

Plaintiff

AND

WILSON ISAAC, CHAIRPERSON OF THE WAITANGI TRIBUNAL

Defendant

CIV-2019-485-512

BETWEEN

DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN

Plaintiff

SMYTH-DAVOREN v VARIOUS PARTIES [2019] NZHC 2138 [29 August 2019]

AND

WILSON ISAAC, CHIEF JUDGE OF THE MAORI LAND COURT

Defendant

CIV-2019-485-513

BETWEEN

DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN

Plaintiff

AND

ELIZABETH PARKES, DIRECTOR OF NEW ZEALAND GENEALOGY LTD

Defendant

On the papers:
Judgment:	29 August 2019

JUDGMENT OF CHURCHMAN J

[1]    As of 1 November 2017, the High Court Rules 2016 (HCR) were amended by the insertion of r 5.35A. This rule permits the Registrar to refer proceedings to a Judge if the Registrar believes that, on the face of a proceeding which has been tendered for filing, the proceeding is plainly an abuse of the process of the Court.

[2]    Where a Judge to whom proceedings are referred is satisfied that the proceeding is plainly an abuse of the process of the Court, the Judge has various options available including staying the proceedings until further order of the Court or ordering that the proceedings struck out.

[3]    The plaintiff has filed four sets of proceedings in the High Court at Wellington.1 These four sets of proceedings have been referred to me by the Registrar pursuant to r 5.35A. I am therefore required to determine whether all or any of these proceedings are plainly an abuse of the process of the Court.

1      CIV-2019-485-510 on 22 August 2019; CIV-2019-485-511, CIV-2019-485-512, and CIV-2019-

485-513 on 26 August 2019.

Background

[4]    This is not the first time the plaintiff has filed proceedings in the High Court which have been referred by the Registrar to a Judge pursuant to r 5.35A.

[5]    On at least three previous occasions, the plaintiff has had proceedings struck out pursuant to r 5.35B.2 The last of the  proceedings was struck out as recently as  11 July 2019.

[6]    I will now analyse each of the four sets of proceedings to see if they fall within the category of being plainly an abuse of the process of the Court.

CIV-2019-485-510

[7]    The cover sheet of the statement of claim filed in this matter describes a proceeding as an “application for judicial review”.

[8]    An essential component of a claim for judicial review is that it identifies a statutory power of decision which has been made and which affects the person applying for a judicial review. No such decision is identified in this proceeding.

[9]    The relief sought by the applicant in these proceedings include a direction that he is entitled to “at least $500 per week”, “a studio [I] can live in” and “to be enrolled on the online theology degree, with University of Otago by Court Order”. There is nothing the statement claim that would explain why or how these remedies would be available.

[10]   The content of the statement of claim is incoherent and there is no obvious connection between the content of the statement of claim and the four Cabinet Ministers who are named as defendants.

[11]   These proceedings are therefore struck out as plainly an abuse of the process of the Court.

2      Smyth-Davoren v Parker [2018] NZHC 1034; Smyth-Davoren v Parker [2018] NZHC 3135; and

Smyth-Davoren v Clark [2019] NZHC 1611.

CIV-2019-485-511

[12]   Although the cover sheet for these proceedings does not describe them as proceedings for judicial review, the Judicial Review Procedure Act 2016 is listed as one of the several Acts relied on. No specific exercise of a statutory power of decision is referred to in the statement of claim.

[13]   The statement of claim lists a number of people who the plaintiff alleges are his ancestors. He claims to have seen their names in records held at the Waitangi Tribunal. The plaintiff’s actual claim is incomprehensible. At one point he says:

I have wanted to know if the deceased persons, names and identities in 3. above can be automatically transferred into my name. as matters of law and property and money, which may become my own personal responsibilities.

[14]No legal basis for the plaintiff’s claim is discernible.

[15]   The plaintiff has named the Chairperson of the Waitangi Tribunal as the defendant. Nothing in the statement of claim would justify that. No action or decision of the Waitangi Tribunal is referred to or called into question. These proceedings are clearly an abuse of process and are struck out.

CIV-2019-485-512

[16]   The statement of claim in these proceedings is similar to the statement of claim in CIV-2019-485-511. However, the defendant in these proceedings is named as the Chief Judge of the Māori Land Court. Once again, the content of the statement of claim is incomprehensible. No action or decision of the Māori Land Court is referred to, and no legal basis is made out for naming the Chief Judge of the Māori Land Court as a defendant. The pleadings are plainly an abuse of process of the Court and are struck out.

CIV-2019-485-513

[17]   The defendant named in these proceedings is a professional genealogist. The statement of claim again sets out the names of people who the plaintiff claims are his ancestors.

[18]   It appears that the plaintiff believes he is entitled to some form of unspecified inheritance from his named “ancestors”, and that he wants the defendant to provide him with a family tree showing how he is related to the claimed ancestors. A document attached to the proceedings shows that the defendant responded to an inquiry from him as to what her professional charges would be for undertaking genealogical research.

[19]   To the extent that the statement of claim can be understood, it appears that the plaintiff wants the Court to order that the defendant undertake genealogical research for him with that being funded by a loan to him from the New Zealand Government.

[20]   There is no attempt in the statement of claim to explain what the legal justification for such orders could be. The claim is clearly nonsensical. These proceedings are clearly an abuse of process and are struck out under r 5.35B.

Conclusion

[21]   Each of these four sets of proceedings which have been struck out as an abuse of process of the Court are incoherent. The plaintiff, in some of the proceedings refers to his status as a mental health patient, and it may be that there is some connection between the state of the plaintiff’s mental health and the filing of these incomprehensible statements of claim.

[22]   The plaintiff is wasting his own time and, more importantly, that of the Courts in repeatedly filing absurd statements of claim.

[23]   Notwithstanding the importance of access to justice by citizens, there is a limit to which the Court is able to indulge the plaintiff. If he persists in continuing to file such documentation, the plaintiff risks having the Court make an order against him under s 166 of the Senior Courts Act 2016 restraining him from commencing civil proceedings.

[24]   I am satisfied that there is no need to serve a copy of any of these proceedings on the defendants and that it would be manifestly unfair to the defendants that they be required to respond.3

[25]   As required by r 5.35B(3), I advise the plaintiff that he has a right of appeal against this decision.

Churchman J

3      Mathieson v Fildes [2017] NZHC 2258 at [4]-[7].