Queen v Speaker of the House of Representatives CA191/04 [2004] NZCA 359 (26 October 2004)

Last Updated: 22 April 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA191/04

BETWEEN DARRYL BRUCE QUEEN
Appellant

AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES
Respondent


Coram: Anderson P
Hammond J William Young J

Counsel: Appellant in Person
C R Gwyn and W L Aldred for Respondent Judgment (On the papers): 26 October 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

[1] Mr Queen seeks the leave of this Court to appeal out of time from the judgment of Fogarty J delivered in the High Court at Christchurch on 29 June 2004 (CIV 2004-409-1914).

[2] The parties have agreed in writing that the application may be dealt with on the papers, and both parties have filed written submissions, which we have considered.

[3] In the result, the application for leave to appeal out of time is dismissed, because the proposed appeal has no merit whatsoever.

[4] The issues raised by the application are of a character which can be dealt with in a succinct judgment.

DARRYL QUEEN V THE SPEAKER OF THE HOUSE CA CA191/04 [26 October 2004]

[5] Mr Queen wished to make submissions to the Justice and Electoral Select Committee on the Care of Children Bill which is presently before the New Zealand Parliament. He wanted to include references to certain specific decisions of the Family Court.

[6] However, Mr Queen correctly appreciated that reference to these specific cases might raise procedural difficulties for the Committee, since all Committee proceedings are made public when the Committee reports back to Parliament, but s 27(A)(1) of the Guardianship Amendment Act 1968 requires the leave of the relevant Court, for publication.

[7] The Clerk of the Committee said the submission could not contain these references because of that very difficulty. The Committee was prepared to hear from Mr Queen generally.

[8] Mr Queen then suggested to the Clerk of the Committee that the Clerk obtain a Crown Law Office opinion on the point. The Clerk of the Committee responded that it was not his responsibility to obtain legal advice on Mr Queen’s behalf.

[9] Mr Queen thereafter commenced a proceeding by way of originating application against the Attorney-General, as respondent, seeking a declaration as to the interpretation of s 27(A)(1) of the Guardianship Act; an order requiring the Committee to readvertise and hear public submissions on the Care of Children Bill after the High Court had made its declaration; and an order in the nature of an injunction preventing the Bill from being reported back to the House, in the meantime.

[10] Fogarty J struck out that proceeding, in an oral judgment dated 19 April 2004, on the basis that the Attorney-General had no control over the process of the House of Representatives, and that the proceeding disclosed no reasonable cause of action against the Attorney-General.

[11] Mr Queen thereupon commenced the proceeding which is presently before us, this time against the Speaker of the House of Representatives, by way of an
originating application dated 17 May 2004. He sought essentially the same relief as in the earlier proceeding.

[12] The Speaker of the House of Representatives applied for strike-out orders, on the footing that no reasonable cause of action was disclosed, and that the proceeding was otherwise an abuse of the Court’s process.

[13] Fogarty J delivered a second judgment, dated 29 June 2004. The proceeding was struck out by His Honour on the footing that there was no prospect that the High Court would exercise its discretion and make the orders sought by the applicant.

[14] Mr Queen sought to appeal from that judgment. But he filed his application one day late, in terms of r 6 of the Court of Appeal (Civil) Rules 1997. He was thereby put in the position of having to apply for an extension of time, pursuant to r 6(3). Unsurprisingly, the respondent opposes that application for extension.

[15] Against this background, we are clear that the High Court Judge was right to recognise the inherent futility of the proceedings and to strike the proceeding out. Neither the High Court nor this Court can intrude inappropriately into the business of Parliament. This is because of the critical importance of the separation of powers between Parliament and the Courts (see Bill of Rights 1688 Article 9).

[16] Secondly, the circumstances as they now stand in Parliament are that a declaration as to the proper interpretation of the particular section of the Guardianship Amendment Act would be of no practical assistance to Mr Queen. This is because the Committee reported the Care of Children Bill back to the House on 29 June 2004.

[17] Accordingly, the application for special leave to extend the time for appeal is dismissed. Even if granted, it could not succeed.

[18] Mr Queen has persisted in this litigation well beyond the realms of reasonableness. He knew, after the strike out of the first proceedings, that he could not succeed; yet he persisted with a second set of fruitless proceedings. The
constitutional position was carefully explained to Mr Queen by Fogarty J, yet he advanced this application, which had no prospect of success whatsoever. The respondent will have costs of $1,000, and his reasonable disbursements.

Solicitors:

Crown Law Office, Wellington