Clements v The Queen of England [2018] NZHC 2047 (10 August 2018)

Last Updated: 30 August 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-1012 [2018] NZHC 2047

BETWEEN	MIRIAM CLEMENTS Plaintiff
AND	THE QUEEN OF ENGLAND and others Respondents

	CIV 2017-404-2792
BETWEEN	MIRIAM CLEMENTS Applicant
AND	AUCKLAND COUNCIL and others Respondents

Hearing:	On the papers
Judgment:	10 August 2018

JUDGMENT OF JAGOSE J

[Leave to appeal]

This judgment is delivered by me on 10 August 2018 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Meredith Connell, Auckland

Copy to:

Applicant

CLEMENTS v THE QUEEN OF ENGLAND and others [2018] NZHC 2047 [10 August 2018]

[1] In these two proceedings, Ms Clements brings applications for review against various central government entities, commencing with “The Queen of England”, and separately against various local government entities, commencing with Auckland Council.

[2] My minute of 1 August 2018 in the former proceeding refused her leave to make further application for ‘interim’ interim relief. My minute of 2 August 2018 in the latter proceeding refused her application to adjourn its hearing.

[3] Ms Clements then brought applications in each proceeding for my recusal. My judgment of 8 August 2018 dismissed her applications as “meaningless”, given no relevant case remained allocated for my determination, but “without merit” anyway.¹

[4] Ms Clements now seeks leave to appeal my judgment to the Court of Appeal.

[5] Nothing in Ms Clements’ application for leave to appeal identifies the enactment providing my judgment “may be appealed to the Court of Appeal with the leave of the court”.² Otherwise, appeals to the Court of Appeal are as of right.

[6] Ms Clements’ proceedings, predominantly being applications for judicial review, are brought under the Judicial Review Procedure Act 2016. Section 20 provides:

Any party who is dissatisfied with any interlocutory or final order made in respect of an application may appeal to the Court of Appeal in accordance with section 56 of the Senior Courts Act 2016.

and s 56 of the latter Act provides:

56 Jurisdiction

(1) The Court of Appeal may hear and determine appeals—

(a) from a judgment, decree, or order of the High Court:

(b) under the Criminal Procedure Act 2011:

¹ Clements v The Queen of England and others [2018] NZHC 2016 at [5].

² HCR 20.22(1).

(c) from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.

(2) Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.

(3) No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

(4) Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—

(a) striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b) granting summary judgment.

(5) If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.

(6) If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.

[7] Ms Clements’ applications for my recusal were “for some relief ancillary to that claimed in a pleading”.³ They are therefore ‘interlocutory applications’. Thus my judgment is “made on an interlocutory application in respect of any civil proceeding”. No appeal lies from it unless leave is granted by the High Court or, if refused, by the Court of Appeal.⁴

[8] Ms Clements’ application for leave appears to be a thinly-amended version of her applications for my recusal. Nothing in Ms Clements’ application for leave identifies any error in my judgment, or why leave therefore should be granted.⁵ It does not “state the relief sought and the grounds justifying that relief”, or “refer to any

³ HCR 4(1) (definition of ‘interlocutory application’ (a)(ii)).

⁴ Senior Courts Act 2016, s 56(3) and (5).

⁵ By analogy with the Court of Appeal (Civil Rules) 2005, r 17.

particular enactments or principles of law or judicial decisions on which [Ms Clements] relies” for leave to appeal,⁶ as the rules require.⁷

[9] Standing back, I cannot identify any error in my judgment.

[10] Leave to appeal is refused.




—Jagose J

⁶ HCR 7.19(1).

⁷ HCR 20.22(4).