Downey v Finlayson [2012] NZHC 1407 (21 June 2012)

Last Updated: 11 July 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2077 [2012] NZHC 1407

BETWEEN RHONA PATRICIA DOWNEY Plaintiff

AND CHRISTOPHER FINLAYSON Defendant

Hearing: 20 June 2012

Counsel: R P Downey in person

J R Burns and A B Sintenie for Defendant

Judgment: 21 June 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 11.30am on the 21st June 2012.

_{JUDGMENT OF WILLIAMS J}

Solicitors:

Ms Downey, Flat 4, 24 Bobwell St, Kawakawa 2012, Bay of Islands

Crown Law, Wellington

RHONA PATRICIA DOWNEY V CHRISTOPHER FINLAYSON HC WN CIV-2011-485-2077 [21 June 2012]

[1] Rhona Downey is 77 years old. She issued proceedings against the Attorney- General in October 2011. Proceedings were issued without the benefit of legal assistance. The statement of claim provided:

To whom it may concern:

CLAIMING FOR COMPENSATION

I want the defendant to...... I want to be reinstated on public files, Governments value of all properties confiscated by the government and local council. I am asking for compensation and all monies owing to me.

I am asking for the following amount of money from the defendant of: $86 million dollars as from year 1940-2011 to the value of dollar prior to that year 1940.

The defendant made no attempt to a quell, the ministers involved in this swindle! He refused to allow ministers trying to help me, ask a question in Parliament. The confiscation started in 1940 when my uncle William Lovell DOWNEY left for the war and continues today. There would be a contract made to all citizens when taking office.

Loss of suffering: I have suffered through this period of time,

1) My health

2) My faith and honesty of the Governments

3) The travese (sic) of evil which I have to endure

[2] The notice of proceeding accompanying the statement of claim included the following further general allegations:

1) The falsification of documents

2) The Act of Malfeasance

3) The distruction (sic) of documents to distort the truth

4) The continued pillage of my records form (sic) my home by the S.I.S

5) The defacing of Titles with intent to defraud

6) Tapping my phone in Dunedin

7. Constant refusal by the Land Office to access my file 94/24/92/6 by different Ministers in power

8) Uplifting of my grandmothers will (by S.I.S) Refusal by the

Archives to issue another copy

[3] Although not obvious from the pleadings, it transpires that Ms Downey alleges that 79 separate land titles had been owned by her late grandmother Violet Downey, and she (Violet) had intended that on her death the properties would be held by her son William Lovell Downey on behalf of her grandchildren of whom one was the plaintiff.

[4] The Attorney-General researched these matters. Only one of the 79 titles was ever recorded as having been owned by Violet Downey. This was duly transferred to William Lovell Downey, the plaintiff’s uncle, in 1939. This land was in Queenstown and, before me, Ms Downey confirmed that it was her grandmother’s home.

[5] It appears Ms Downey alleges in respect of that land, that it had been fraudulently acquired from Mr Downey in 1944 while the latter was a prisoner of war in Crete. Again, this is not obvious from her pleading. William Downey died in Wellington in 1987.

[6] Crown researchers searched High Court registries and other sources to identify whether probate had been granted in respect of William Downey’s estate and whether an executor had been appointed. There was no evidence in any registry of a will, grant of probate or appointment of an executor.

[7] The Crown had a historical researcher investigate Mr Downey’s circumstances in 1944. Ms Robinson, the researcher, could find no reference to William Downey having served overseas during the Second World War, or having been a prisoner of war.

[8] There is a further issue unearthed by another Crown researcher, Graham Williams, in relation to land in Queenstown previously owned by the plaintiff’s grandfather, William Lovell Davis. This land was Crown owned but was offered back by the Crown to the plaintiff on 25 September 1991 as it had been declared surplus. Mr Williams’ research indicates that the offer back had lapsed because no response had been received from the plaintiff within the required 40 working days.

[9] In court before me, Ms Downey indicated that the 1991 offer-back was not an issue being pursued in this proceeding.

[10] With all of the foregoing in mind, the Crown applies to strike the claim out. Put simply the Crown says:

(a) The plaintiff’s claim is incomprehensible and does not raise a cause of

action to which the Attorney-General can be required to respond.

(b) The facts indicate that in respect of 78 of the 79 titles raised in these proceedings, the claim is utterly untenable.

(c) In relation to the Queenstown land that was originally Violet Downey’s family home, there is no evidence of fraud of any kind and the claim is time-barred. Furthermore, the plaintiff is not the executor of her uncle’s estate and so has no standing to bring the proceeding.

[11] Ms Downey acknowledges the facts unearthed in the Crown’s research but says, consistently with the general allegations contained in her notice of proceeding, that she and her family are the victims of a massive fraud by the State acting in its many forms and permutations. She says her family has been erased from official records and land titles as a result of the claims she has made. She says this explains why Crown research has produced the nil result set out in the affidavits supporting the Crown’s application to strike-out.

[12] I have no doubt that Ms Downey sincerely believes that various permutations of the State have stolen her grandmother’s lands. Her sincerity is not in question. That said, there is simply no basis upon which any of these claims can succeed in a court of law.

[13] Rule 15.1 of the High Court Rules entitles the court to strike-out a pleading if it discloses no reasonably arguable case, is frivolous or vexatious or otherwise an abuse of the court’s process. In such an inquiry pleaded facts are assumed to be

capable of proof unless they are entirely speculative and without foundation. Strike- out is to be treated as a remedy available only if the claim is clearly untenable.[1]

[14] Counsel for the Attorney-General cited Attorney-General v McVeagh[2] in which the court said:

... there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not be allowed to proceed further.

[15] Also cited was Reid v New Zealand Trotting Conference[3] in which the court said:

Misuse of the judicial process tends to produce unfairness and undermine confidence in the administration of justice. ... The public interest in the due administration of justice necessarily extends to ensuring that the court’s processes are fairly used and that they do not lend themselves to oppression and injustice. The justification for the extreme step of staying a prosecution or striking out a statement of claim is that the court is obliged to do so in order to prevent the abuse of its processes.

[16] Finally, the Crown noted r 5.26 requiring that a statement of claim must show the nature of the plaintiff’s claim and give sufficient particulars to inform the court and parties of the plaintiff’s cause of action.

[17] The Crown cited PriceWaterhouse v Fortex Group Limited[4] in which

McGechan J held:

... both the court and the opposite parties are entitled to be advised of the essential basis of a claim or defence, and all necessary ingredients of it, so that subsequent processes and the trial itself can be conducted against recognisable boundaries.

[18] The plaintiff’s claim is problematic under two of the three disqualifiers I have identified from r 15.1. First, the plaintiff’s pleading identifies no discernible cause of action. It is not at all clear from the pleadings what the plaintiff ’s case is about.

_{The research undertaken by Crown experts indicates that there is no factual basis}

upon which the plaintiff could possibly construct a case in respect of the 79 titles identified, without proof of fraud.

[19] As I have said, Ms Downey’s case is really premised on the idea of a massive conspiracy against her grandmother, her uncle, and her entire family perpetrated by a number of colluding government agencies, and at the highest level.

[20] These allegations are grave indeed. They cannot be lightly made. Sweeping allegations of this nature are an abuse of process without full particulars, proportionate to the gravity of the allegation made, providing the court and the Crown with the essential basis of claim (including all necessary ingredients of it) so that any trial can be conducted within recognisable boundaries. As this claim is currently constructed, there are no recognisable boundaries at all. It will be a moving feast.

[21] The Crown makes two further points, both of them cogent. The first is that there is no proof that Ms Downey is the executor or administrator of the estate of William Downey and so she has no standing to bring this claim. While that obstacle could perhaps be overcome if it could be shown that William Downey was in fact a trustee in favour of the children, that is not how Ms Downey constructs her case. The claim is therefore also untenable because the plaintiff lacks standing.

[22] The second point is that all claims are of course time-barred as arising from facts well outside the limitation period. This constraint might be avoided if fraud is proved by a transferee of any of the titles, but again that is not pleaded either.

[23] The claim must accordingly be struck-out as disclosing no tenable case

and/or as an abuse of the court’s process.

_{[24] The Crown does not seek costs.}

Williams J

---

[1] _{See Couch v Attorney-General [2008] NZSC 45, 3 NZLR 725 (SC) at [33].}
[2] _{[1995] 1 NZLR 558 (CA) at 14.}
[3] _{[1984] 1 NZLR 8 (CA).}
[4] CA 179/98, 30 November 1998 at 17-18.