IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-708 [2015] NZHC 1819

UNDER	the Treaty of Waitangi Act 1975 and the
Judicature Amendment Act 1972	

BETWEEN	
JOSEPH ROBERT KINGI Plaintiff	

AND	
NGÄ MANA WHENUA O TAMAKI MAKAURAU TRUST
First Defendant

TE RARAWA RUNANGA TRUST Second Defendant

……………………………/continued	

Hearing:	30 July 2015	

Counsel:

Appearance:	
AJ Nelder for second and third defendants
AJ Allan for fourth defendant
A Milosavljevic for fifth defendant

PF Majurey, given leave to appear in respect of the named first defendant

JR Kingi, plaintiff in person	

Judgment:	
4 August 2015	

JUDGMENT OF FAIRE J

This judgment was delivered by me on 4 August 2015 at 12 noon, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Kingi v Ngä Mana Whenua O Tamaki Makaurau Trust [2015] NZHC 1819 [4 August 2015]

TE ROPU O TUHORONUKU INDEPENDENT MANDATED AUTHORITY
Third Defendant

ATTORNEY-GENERAL Fourth Defendant

CROWN FORESTRY RENTAL TRUST Fifth Defendant

The application

[1]       The  second,  third,  fourth  and  fifth  defendants  apply  to  strike  out  the plaintiff’s proceedings.   They all allege that the statement of claim alleges no reasonably arguable cause of action.   Several also assert that the proceedings are frivolous and vexatious, are an abuse of process and cause prejudice and delay.

Directions for the hearing

[2]       The proceeding was called before Ellis J on 14 May 2015.   Her Honour’s minute of the matters discussed at that time gives a helpful background to why the plaintiff has filed the proceeding.  It also gave directions for the taking of steps and the setting up of this fixture.

[3]       Her Honour recorded:

[1]        Mr Kingi has a number of concerns related to the conduct of the Wai 1941 claim in the Waitangi Tribunal, including as to funding and hearing time allocated.  He also has concerns (as I understand it) about the conduct of Te Ropu o Tuhoronuku Independent Mandated Authority, which is the body mandated to settle Ngapuhi’s historical Treaty claims with the Crown.

[2]        Mr Kingi  has  attempted  previously  to  have  the  Wai 1941  claim stayed by way of originating application to this Court but that was struck out on 11 February 2015 by Muir J.  The previous day, it had been suggested to Mr Kingi by Duffy J that the proceedings might be more appropriately brought as a claim for judicial review.  These proceedings appear to have been the result.

[3]        Each of the respondents named in the claim for judicial review have filed, or will shortly file, an application to strike out the claim.   I attempted to explain to Mr Kingi what that entailed.  I urged him to seek legal advice, if he is able; there certainly appears to be some difficulty with his claim as drafted.

Compliance with her Honour’s directions

[4]       Mr Kingi has filed documents however, they do not comply with the court’s requirements for a notice of opposition and as prescribed by r 7.24 of the High Court Rules. The applicant’s have all filed detailed submissions in support of the strike out applications as directed by her Honour.  Mr Kingi has not filed any memorandum or submission which addresses the matters raised by counsel’s submissions.

The court’s approach to strike out applications

[5]       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.

[6]	The general  principles  to  be applied  in  a strike out  application  are well known.  They were confirmed in Attorney-General v Prince and Gardner where the
Court of Appeal said:1

1	Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.

A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true.  That is so even although they are not or may not be admitted.  It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978]
2  NZLR  289  at  pp  294-295;  Takaro  Properties  Ltd  (in  receivership)  v
Rowling [1978] 2 NZLR 314 at pp 316-317); the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it
has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR
37 at p 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2
NZLR  641);  but  the  fact  that  applications  to  strike  out  raise  difficult questions  of  law,  and  require  extensive  argument  does  not  exclude
jurisdiction (Gartside v Sheffield, Young & Ellis).

[7]       The  principles  referred  to  above  were  endorsed  in  Couch  v  Attorney- General.2

[8]       The  court  can  have  regard  to  affidavit  evidence  either  put  forward  in opposition or support of the application provided it does not contradict that which is pleaded in the statement of claim: Attorney-General v McVeagh.3

[9]       Caution is required, particularly where the case involves allegations of duties of  care  in  novel  situations.    That  has  to  be measured  against  the  position  that defendants  should  not  be  subjected  to  substantial  costs  by  defending  untenable claims: Queenstown Lakes District Council v Charterhall Trustees Ltd.4

An amended statement of claim

[10]     Counsel were served with document entitled Amended statement of claim.  I could not find it on the file however a copy was made available to me at the hearing. Mr Kingi and counsel invited me to proceed on the basis that the pleading under challenge is, in fact, the amended statement of claim.  Assuming that to be the case, the original statement of claim is treated by the court as no longer existing and the
matter is therefore determined on the basis of the latest amended statement of claim.5

2	Couch v Attorney-General [2008] NZSC 45; [2008] 3 NZLR 725.
3	Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.
4	Queenstown Lakes  District Council v  Charterhall Trustees Ltd  [2009]  NZCA 374;  [2009]
3 NZLR 786 at [16].
5	Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 17.

The grounds proposed for striking out the proceeding

[11]     The first and principal ground advanced in these strike out applications is that the pleadings are inadequate and do not identify the necessary components of any recognisable cause of action.  The pleadings do not comply with rr 5.26 and 5.27 of the High Court Rules.   Neither  statement of claim is sufficiently intelligible to properly inform any of the defendants of the case against them and do not provide anything that would enable a sensible response to the claim to be made.   To the extent that the claim purports to be an application for judicial review, the pleadings fail to indentify a relevant statutory or public power of decision that was exercised which  could  be  the  subject  of  judicial  review.    Further,  they do  not  provide  a pleading of a remedy that would be available to the plaintiff on judicial review.

[12]     This is a case where the pleading is so bad that the court should not allow an opportunity for any amendment.

[13]     I canvassed with Mr Kingi as to whether he was likely to obtain legal advice and he indicated that he may well do so.  If there is any proper basis for a claim, a matter which is not identified by Mr Kingi, then it would be over to the person filing such claim to present a document which contains a recognisable cause of action and pleads a remedy which, in law, is recognised as flowing from such a cause of action.

[14]     The deficiencies of this statement of claim and the amended statement of claim were clearly signalled in advance to Mr Kingi by the submissions filed on behalf of the second to fifth defendants.   It is regrettable that Mr Kingi made no attempt to address the substance of those submissions.  The result is that I have been presented with no theoretical basis for some cause of action that he might have which might justify and order for stay as opposed to strike out whilst a proper pleading is prepared.

[15]   Counsel’s very careful submissions drew attention to the other grounds justifying an order striking out a statement of claim which are set out in r 15.1 of the High Court Rules.   It is unnecessary that I review those other grounds because the first ground for an order striking out the statement of claim is very clearly made out in this case.

The position of the first defendant

[16]     No application is made on the first-named defendant’s behalf.  Mr Majurey submitted from the Bar that the named entity did not exist.  I am not in a position on the material placed before me to determine whether, factually, that submission is correct.  Be that as it may, the inadequacies of the pleadings, in my view, justify the striking out of the whole proceeding, including the references to the first defendant because the documents presented to the court are plainly inadequate and provide in their content no justification for further consideration by the court.   They fail to identify a reasonable cause of action.  It is for that reason that I intend making an order dealing with the entire proceeding.

Costs

[17]     Counsel reported that this was not the first occasion when Mr Kingi had filed a proceeding allegedly to cover the matters that he identified in a discussion with Ellis J in respect of which I have recorded her Honour’s reference to what she was told.  Understandably, some counsel have sought orders for increased or indemnity costs.

[18]     I can understand the frustration of the parties who have taken steps here and why, in the circumstances, they invite the court to engage that part of Part 14 of the High Court Rules dealing with increased and indemnity costs.  Nevertheless, I have concluded that at this early stage of this proceeding, and because I determine that finality of all matters arising out of this proceeding is in the interests of all parties, costs should be fixed by a strict application for Category 2 Band B in respect of each of the defendants’ applications to strike out.

[19]     In the case of the second defendant’s application, no allowance should be made for hearing because counsel responsibly did not appear, but invited counsel for the third defendant to speak on its behalf.

Orders

[20]     Accordingly, I order that:

(a)       this proceeding be struck out in its entirety.  That includes that part of the pleadings which refer to the first defendant;

(b)       the second, third, fourth and fifth defendants are awarded costs based on Category 2 Band B together with disbursements as fixed by the Registrar and having regard specifically to the clarification that I have made in respect of the second defendant; and

(c)       no order for costs is made in respect of the entity named as the first defendant and in favour of whoever instructed Mr Majurey to appear.

JA Faire J

Solicitors:	Russell McVeagh, Auckland Crown Law, Wellington Buddle Findlay, Auckland

To:	PJ Majurey, – Atkins Holm Majurey Ltd, Auckland
JR Kingi, Auckland