Fabian v Attorney-General [2013] NZHC 1606 (28 June 2013)

Last Updated: 5 August 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4576 [2013] NZHC 1606

BETWEEN TYRONE MAUNGA URAUTUNUI FABIAN

Plaintiff

AND ATTORNEY-GENERAL Defendant

Hearing: 10 June 2013

Appearances: T Fabian in Person

L McKay for Defendant

Judgment: 28 June 2013

_{RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON}

This judgment was delivered by me on 28 June 2013 at 3 pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

_{Date ..........................}

FABIAN v ATTORNEY-GENERAL [2013] NZHC 1606 [28 June 2013]

[1] The Attorney-General, the defendant, seeks by way of interlocutory application, orders striking out the plaintiff’s statement of claim and dismissing this proceeding. He also seeks an order for costs.

Background and the parties’ position

[2] On 2 August 2012 the plaintiff, Mr Fabian, commenced this proceeding naming the New Zealand Government and the Attorney-General as first and second defendants respectively. He seeks a range of remedies in respect of 16 alleged causes of action.

[3] The first case management conference was held by telephone on 14

December 2013 before Associate Judge Abbott. As recorded by minute1 His Honour directed Mr Fabian to remedy defects in his statement of claim, noting that:

(a) It was impossible to identify a valid cause of action or any appropriate relief from the pleading and that there was a proper basis for striking out the claim.

(b) He accepted counsel for the Attorney’s contention that he was unable

to respond to the statement of claim as it was pleaded.

(c) Mr Fabian was to file an amended statement of claim showing recognised causes of action and complying with the requirements of the High Court Rules by 25 March 2013.

[4] Mr Fabian filed a third amended statement of claim on 26 March 2013. It is substantially the same as the original pleading. Consequently on 9 April 2013 the Attorney filed his application essentially citing as grounds that:

(a) The amended statement of claim contains the same defects as the original pleading in that it:

(i) fails to disclose any reasonably arguable or identifiable cause of action and cannot possibly succeed,

(ii) contains claims founded on Maori sovereignty arguments that are clearly untenable,

(iii) contains content that is unnecessarily prolix and likely to cause prejudice or delay, and claims that are unintelligible and cannot sensibly be understood or responded to.

(b) The amended statement of claim remains non-compliant with High

Court Rules 5.26, 5.27 and 5.31.2

[5] Mr Fabian has since filed two further amended statements of claim, the most recent (the fourth amended claim) on 8 April 2013. It is substantially the same as Mr Fabian’s previous statements of claim.

_{[6] Mr Fabian opposes the Attorney’s application. In essence he says:}

2 The text of these rules materially states:

5.26 Statement of claim to show nature of claim

The statement of claim—

(a) must show the general nature of the plaintiff's claim to the relief sought; and

(b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff's cause of action; and

(c) ...

(d) in a proceeding against the Crown that is instituted against the Attorney-General, must give particulars of the government department or officer or employee of the Crown concerned.

5.27 Statement of claim to specify relief sought

(1) The statement of claim must conclude by specifying the relief or remedy sought.

(2) If the statement of claim includes 2 or more causes of action, it must specify separately the relief or remedy sought on each cause of action immediately after the pleading of that cause of action.

5.31 Specifying relief sought

(1) The relief claimed must be stated specifically, either by itself or in the alternative. (2) ...

(a) The primary causes of action (which he identifies as the fifth to seventh causes of action) are unobjectionable, and clearly plead breach of fiduciary duty owed by the Crown to the Maori Sovereign. The other causes of action are simply included for purposes of elaboration.

(b) The primary causes of action are clear and comprehensible in the relief they seek: being the return of Maori lands; the negotiation of new treaties between the Maori Sovereign on the one hand and the Crown on the other; and the setting up of a fund to provide proper compensation for Maori for the loss of their lands and rights.

Strike Out Principles

[7] The application is made in reliance on r 15.1. It relevantly 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 ... under subclause (1), it may by the same or a subsequent order dismiss the proceeding...

[8] The guiding principles concerning strike-out are firmly established, and were outlined by the Court of Appeal in Attorney-General v Prince & Gardner as follows:3

(a) Pleaded facts are assumed to be true.

(b) Before a Court may strike out proceedings, the causes of action must be so clearly untenable that they cannot possibly succeed.

(c) The Court’s jurisdiction to strike out is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite materials.

(d) The fact that applications to strike-out raise difficult questions of law and require extensive argument does not exclude jurisdiction.

[9] This approach has more recently been endorsed by the Supreme Court in

Couch v Attorney-General.4

Discussion and findings

[10] The Attorney’s case is that Mr Fabian’s claim should be struck out in accordance with High Court Rule 15.1, and the claim dismissed because the pleading is an abuse of process. Despite a three-month opportunity to remedy the inadequacies in the statement of claim, the pleading remains deficient, such that the defendant is unable to sensibly plead a statement of defence. As such, there remains a proper basis for striking out the claim.

[11] I agree with counsel for the Attorney that:

(a) There are no decipherable recognised causes of action in the statement of claim.

(b) The claim is difficult to understand, though there are underlying themes of Maori sovereignty derived from the 1835 Declaration of Independence on the basis of which Mr Fabian appears to:

(i) claim personal sovereignty over New Zealand, and the existence of a trust under which all of the lands in New Zealand are held for his benefit as sovereign,

(ii) advance claims against the Crown alleging breach of fiduciary duty.

[12] It is impossible to identify from the statement of claim how such a trust arises, other than being founded on his claimed personal sovereignty deriving from the Declaration of Independence.

[13] Given what Mr Fabian said at the hearing, I have no reason to doubt the sincerity with which he holds the beliefs on which he says his claim is founded. He appears to believe with considerable conviction that injustices to himself as sovereign and Maori generally will only be capable of proper remedy if the Crown and the courts recognise the wrongful repudiation of the Declaration of Independence and his claim to personal sovereignty derived from the Declaration. It is his position that the Treaty of Waitangi has no validity and that the statutory claims process administered by the Waitangi Tribunal is invalid and perpetuating injustice.

[14] However, sincerity of the belief in one’s cause and strength of conviction with which the belief is held are not the foundation for the Court’s jurisdiction to hear the claims made by way of civil proceedings. I am compelled to agree with the submissions made by counsel for the Attorney to the effect that in light of precedent (which I must follow) claims to personal sovereignty are untenable, as are claims to the existence of a trust founded on personal sovereignty and the Declaration of

Independence.5 I note two of the numerous decisions below.

[15] The following statement of Fisher J in this Court is apposite: 6

But in fact it is neither necessary nor permissible for a Court to delve back into history to establish the pedigree of the New Zealand Parliament, or the territorial scope of its authority, for the purpose of assessing the validity of a current statute. Once Parliament passes or adopts a statute, the Courts must apply it. An assumed clash of sovereignties in the mid-19th century cannot provide the basis for challenging a New Zealand act of Parliament.

5 See Matahaere v New Zealand Police [2012] NZHC 2436; Habib v Primus Financial Services [2007] NZHC 633; [2007] NZAR 593 (HC); Hake v NZ Police HC Rotorua AP53/01, 23 May 2003; Manukau & Ors v Attorney-General [2000] NZAR 621 (HC); R V Pairama (1995) 13 CRNZ 496 (HC).

6 Berkett v Tauranga District Court [1992] NZLR 206.

[16] The Court of Appeal has also discussed this issue at length, such as in R v

Mitchell:

This Court has made it plain on a number of occasions now that arguments that are based upon an assertion that the Parliament of New Zealand was not authorised to make law affecting some or all of the persons living in New Zealand cannot succeed before it.

[17] Mr Fabian’s claim is accordingly not reasonably arguable and cannot possibly succeed. This is a clear case in which it would be appropriate for the Court to exercise its jurisdiction to strike out his claim.

[18] I also accept that there are other reasons why the statement of claim cannot stand. It is not necessary to deal with them at length. It is sufficient to note that the claim plainly offends the principles that regulate the basic requirements of pleading and is therefore likely to cause prejudice and delay. I expand briefly.

[19] The statement of claim fails to clarify and define the issues, rather it complicates and confuses them. It is unnecessarily prolix, an example being where it sets out at great length Mr Fabian’s genealogy when a paragraph would suffice. It contains a number of purported causes of action that Mr Fabian acknowledges are included simply to elaborate on others. It is replete with irrelevant allegations and as

such is liable to be struck out.7 It also suffers from unintelligibility, a ground for

striking out.8 The Court cannot be expected to pick through a statement of claim and create intelligibility where none exists.9 It is in the interests of justice that a defendant not be required to respond to an unintelligible pleading, and that the limited resources of the courts not be applied to dealing with such documents.10

[20] Additionally, despite the opportunity to remedy his pleadings, Mr Fabian’s

statement of claim still does not comply with High Court Rules 5.14, 5.26, 5.27, and

5.31. The same pattern is repeated throughout the causes of action which are repetitive; they assert breach of fiduciary duty with no or minimal particulars to

7 _{See generally Van der Kaap v Attorney-General (1996) 10 PRNZ 162 (HC).}

8 Ward v ANZ National Bank Ltd [2012] NZHC 2347, at [18]. See also Te Toki v Pratt (2002) 16

_{PRNZ 160 (HC).}

9 _{Siemer v Stiassny HC Auckland CIV-2008-404-0104, 20 March 2008, at [8].}

10 Ward v ANZ National Bank Ltd [2012] NZHC 2347, at [21].

support the sweeping claims of breach. They do not plead any loss to Mr Fabian personally or specify any relief that Mr Fabian could conceivably be entitled to.

[21] Pleadings that are properly drawn and particularised are an essential road map for the conduct of proceedings.11 To that end, the function of a statement of claim is to clarify and define the issues for the Court, as well as to inform the opposing parties.12 Despite a three-month period to re-plead the statement of claim, Mr Fabian’s pleadings remain deficient, such that requiring the Attorney to engage with its contents would cause him prejudice and delay.

[22] As a result, I accept the submission for the Attorney that it is impossible for the Court and the defendant to know the basis for the claims, and the defendant is unable to sensibly plead a statement of defence.

[23] It is in the interests of justice, as well as the efficient use of the Court’s resources, that parties to proceedings not be required to respond to improperly drawn and particularised pleadings.

[24] The failure to comply with the High Court Rules compounds the other deficiencies noted above.

Conclusion

[25] The defects in Mr Fabian’s statement of claim are so fundamental that the Court can have no confidence they will be remedied by a further opportunity to re- plead. The only appropriate course of action is for the statement of claim to be struck out and the proceedings dismissed with costs.

Result

_{[26] I make orders on the Attorney’s application as follows:}

11 _{Price Waterhouse v Fortex Group Ltd CA 179/98, 30 November 1998, at 17.}

12 Thomson v Westpac Banking Corp (No 2) (1986) 2 PRNZ 505 (HC) at 508.

(a) I make an order striking out the fourth amended statement of claim and an order dismissing the proceeding.

(b) I reserve the issue of costs.

[27] On the matter of costs I make these observations: ordinarily, under the statutory costs regime, costs will follow the event. This may be a case where costs are not pursued or if they are pursued, costs would be warranted on a Category 1

Band A basis given that the issues are so clear cut. If costs are pursued, counsel for the Attorney is to file and serve a memorandum within 5 working days and Mr Fabian is to have a further 5 working days in which to respond should he wish to do so.

Postscript

[28] I add a postscript to note that, as mentioned, Mr Fabian appears sincere in his beliefs and committed to securing support for broader avenues of relief for Maori. In similar vein to the comments by Chambers and Durie JJ made on earlier occasions,13 and with the same good will, I comment that Mr Fabian’s search for a remedy is being directed at the wrong forum and would be better targeted to the appropriate

_{political forum.}

_{Associate Judge Sargisson}

13 Manukau v Attorney-General [2000] NZAR 621 (HC).