Tamihere v Commissioner of Inland Revenue
[2017] NZHC 2949
•30 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1978 [2017] NZHC 2949
BETWEEN ROBIN NOEMA HUGHES TAMIHERE
Applicant
AND
COMMISSIONER OF INLAND REVENUE
First Respondent
THE DISTRICT COURT Second Respondent
INLAND REVENUE DEPARTMENT Third Respondent
Hearing: 29 November 2017 Appearances:
S J Leslie and V T A Tuyay for Respondents
Applicant in personJudgment:
30 November 2017
JUDGMENT OF PALMER J
This judgment is delivered by me on 30 November 2017 at 10 am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Crown Law, Wellington
Party:
Applicant
TAMIHERE v COMMISSIONER OF INLAND REVENUE & ORS [2017] NZHC 2949 [30 November 2017]
Summary
[1] This proceeding was filed by the applicant as “Tamihere: Robin Noema Hughes”, who wishes to be known as “Marshal Robin”, “the Living Man”. He styles himself as a Diplomatic Federal Marshal to the independent Polynesian Kingdom of Atooi and as unemployed of Tuakau. He filed judicial review proceedings, challenging decisions by the District Court, that made various exorbitant claims against the judge and opposing counsel which had no basis in fact or law. I strike out the Statement of Claim and dismiss the proceeding. It discloses no reasonably arguable cause of action, is frivolous, vexatious and an abuse of the court process.
The applications for judicial review and strike out
District Court proceedings
[2] The applicant commenced two applications for summary judgment against the Commissioner of Inland Revenue (Commissioner). Before they were struck out,1 during a civil list hearing in the District Court, Judge Andrée Wiltens declined the applicant’s request for a copy of “the contract” between Crown Counsel and the Commissioner. He also declined the applicant’s request for disclosure of material proving the Court had jurisdiction. The applicant proceeded to make allegations of
fraud against the Commissioner, the Judge, counsel and the Registrar.
Application for judicial review
[3] On 24 August 2017, the applicant applied for judicial review alleging Judge Andrée Wiltens exceeded his statutory authority and violated natural justice by denying him the opportunity to challenge Crown Counsel’s standing in the District Court. He alleges that was an abuse of process, that Judge Andrée Wiltens was biased and acted ultra vires in refusing to provide him with a copy of the Commissioner’s sworn statement that gave the court subject matter jurisdiction. The applicant submits the proceeding was void and seeks damages of $15,000 for breach of ss 25(a) and 27(1) of the New Zealand Bill of Rights Act 1990 (Bill of Rights) and
eight declaratory judgments.
1 Tamihere v Commissioner of Inland Revenue [2017] NZDC 22797.
Application for strike out
[4] The Commissioner submits the applicant’s allegations are plainly unsupportable, give rise to no claim for judicial review and the proceeding should be struck out on the following grounds:
(a) The statement of claim discloses no reasonable cause of action as:
(i)the Court does not have jurisdiction to hear a claim for public law compensation for alleged breaches by the judiciary of ss 25 or 27 of the Bill of Rights;
(ii) there is no foundation for any allegation of bias; and
(iii) the allegations are ridiculous.
(b)The documents the applicant has filed are vexatious, unintelligible, an abuse of the court process, and have been overtaken by the decision of the District Court to strike out both of the applicant’s proceedings.
(c) The applicant is an undischarged bankrupt and has no standing to bring the proceeding on behalf of himself. Nor has the Official Assignee consented under ss 117 or 120 of the Insolvency Act 2006.
[5] The applicant has not filed a notice of opposition to the strike-out application as required. But he filed submissions in the form of an affidavit and appeared at the hearing to oppose the application. The meaning of the applicant’s oral and written submissions are difficult to decipher. In essence, I understand he submits the application is fraudulent, I have no jurisdiction to hear this matter and I would be committing fraud, bias, and acting in collusion with the Commissioner if I grant the application. He submits the strike-out documents have been filed by fictitious plaintiffs, are ultra vires and an abuse of the court’s process that breaches natural justice. He says the Commissioner’s application is defective because it does not once refer to him by what he says is his proper name.
[6] The applicant alleges an affidavit filed by the Crown, of Ms Carla Freda, is fraudulent because the deponent is not a party and may have not authority to speak for the Commissioner. It is not fraudulent. He sought a ruling as to whether it is a valid affidavit. It is. He sought permission to cross-examine the deponent which I declined before the hearing. He sought the hearing to be in open court, rather than in chambers, which I granted by consent. He sought disclosure before the hearing, but the Minute of Fitzgerald J of 12 October 2017 makes clear that would be dealt with after the determination of the strike-out application, if necessary. He sought that I recuse myself. I did not.
The law of strike out
[7] The law governing the striking out of proceedings is well established. Rule
15.1 of the High Court Rules provides:
15.1 Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1) it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3) Instead of striking out all or part of a pleading under subclause (1) the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the court's inherent jurisdiction.
[8] As summarised by the Court of Appeal in Attorney-General v Prince and
Gardner and a minority of the Supreme Court in Couch v Attorney-General:2
(a) the facts pleaded are assumed to be true;
(b) the causes of action must be so untenable the court is certain they cannot possibly succeed;
2 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 264. Approved by Elias
CJ and Anderson J in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
(c) the jurisdiction is to be exercised sparingly and only in a clear case;
(d) the jurisdiction is not excluded by the need to decide difficult questions of law; and
(e) particular care is required in areas where the law is confused or developing.
[9] Although facts pleaded are ordinarily assumed to be true in a strike-out application, that does not extend to allegations which are “self-evidently speculative or false” or plainly unsupportable and without foundation.3 As I said in Sellman v Slater, the courts will not provide a boat for a deep-sea fishing expedition without bait.4 In Commissioner of Inland Revenue v Chesterfields Preschools Ltd the Court of Appeal also stated:5
The grounds of strike out listed in r 15.1(1)(b)-(d) concern the misuse of the court’s processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court’s processes. Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. In regards to r 15.1(1)(c), a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains an element of impropriety. Rule 15.1(1)(d) – “otherwise an abuse of process of the court” – extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a proceeding that has been brought with an improper motive or are an attempt to obtain a collateral benefit. An important qualification to the grounds of strike out listed in r 15.1(1) is that the jurisdiction to dismiss the proceeding is only used sparingly. The powers of the court must be used properly and for bona fide purposes. If the defect in the pleadings can be cured, then the court would normally order an amendment of the statement of claim.
[10] A frivolous proceeding trifles with the court’s processes,6 or lacks “the seriousness required of matters for the Court’s determination”.7 A vexatious proceeding carries an element of impropriety, often a procedural impropriety.8 An
abuse of process captures all other instances of misuses of the court’s processes, such
3 Siemer v Judicial Conduct Commissioner [2013] NZHC 1853 at [13]; Commissioner of Inland
Revenue v Michael Hill Finance (NZ) Ltd [2016] NZCA 276, [2016] 3 NZLR 303 at [4].
4 Sellman v Slater [2017] NZHC 2392 at [95].
5 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2
NZLR 679 at [89].
6 At [89].
7 Deliu v Hong [2011] NZAR 681 (HC) at [122].
8 Commissioner of Inland Revenue v Chesterfields Preschools Ltd above n 5, at [89].
as proceedings brought with improper motives or intended to obtain a collateral advantage beyond that legitimately gained from a court proceeding.
[11] For a judicial review to be struck out on the basis of standing, “claims to both personal standing and public interest standing must be so untenable that the court must be certain they cannot possibly succeed”.9
Should the proceeding be struck out?
[12] In light of the Crown’s submission the allegations are plainly unsupportable, I have read the transcript of Judge Andrée Wiltens’ interaction with the applicant. Nothing in what the judge said provides any basis for considering he was, or might be perceived to be, biased.10 As the Court of Appeal has recognised, it is perfectly conventional and constitutionally appropriate for Crown Law to appear in court on behalf of the Commissioner.11 And the District Court’s jurisdiction in the proceeding was statutory, under the District Courts Act 2016. The Judge was constrained to decide as he did. None of the applicant’s submissions have any basis in fact or in New Zealand law.
[13] Neither is there is any foundation in law or fact for any allegation of the Judge exceeding his statutory authority, or bias or violation of natural justice or abuse of process. The cause(s) of action alleged by the applicant are plainly unsupportable and entirely spurious. I consider the proceeding as a whole is frivolous, vexatious and an abuse of the court process. It trifles with the Court’s processes. I strike out the proceeding for these reasons.
[14] Having come to that conclusion I do not need to consider the more complex, and less clear, question of whether the District Court can ever be liable in damages
for breaches of the Bill of Rights in view of the Supreme Court’s decision in
9 Smith v Attorney-General [2017] NZHC 1647, [2017] NZAR 1094 at [30].
10 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1
NZLR 1.
11 Accent Management Ltd v Commissioner of Inland Revenue [2013] NZCA 155, [2013] 3 NZLR
374.
Attorney-General v Chapman.12 And because the damages claim is just one of nine remedies sought, it would not be dispositive of the proceeding as a whole.
[15] Nor do I need to decide whether the applicant, as an undischarged bankrupt, has standing to bring this proceeding. As a matter of principle, and consistently with United Kingdom authority, I am inclined to the view that s 101 of the Insolvency Act
2006 does not vest in the Official Assignee rights of action that are personal to the bankrupt.13 Applications for judicial review to uphold human rights are a paradigmatic example of that. The counterpoint to that view, well-illustrated by this case, is that unmeritorious judicial review proceedings pursued by a bankrupt may result in adverse costs awards which would be passed on to the Official Assignee. Ms Leslie did not take the point too far. But, in any case, I am not certain the applicant’s claim to standing is so untenable it cannot possibly succeed, so I do not strike out the proceeding on that basis.
[16] Since 1 September 2017, r 5.35B of the High Court Rules 2016 empowers a judge to strike out or stay a proceeding the judge is satisfied is plainly an abuse of the process of the court. I have no doubt that rule would have been invoked, if it were in force when this proceeding was filed.14 I suggest to the applicant that he would benefit from consulting a lawyer if contemplating further legal proceedings.
Result
[17] I grant the application to strike out the statement of claim and dismiss the proceeding. I award costs to the Commissioner on a 2B basis.
………………………….
Palmer J
12 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.
13 Heath v Tang [1993] 1 WLR 1421 (CA) at 1424. In New Zealand, see Mawhinney v
Environment Court [2015] NZHC 1663.
14 As were subsequent applications by the applicant, for similar reasons in Tamihere v Attorney- pPGeneral [2017] NZHC 2697.
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