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High Court of New Zealand Decisions |
Last Updated: 14 September 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2018-404-001012
[2018] NZHC 2244 |
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IN THE MATTER
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of a Challenge to a 2018 Budget allocation under the Judicial Review
Procedure Act 2016
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BETWEEN
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MIRIAM CLEMENTS
Plaintiff
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AND
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THE QUEEN OF ENGLAND
First Respondent
PATSY REDDY
Second Respondent
JACINDA ARDERN
Third Respondent
THE NEW ZEALAND GOVERNMENT
Fourth Respondent
SUBORDINATES TO THE CRIME
Fifth Respondents
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Hearing:
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21 August 2018
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Appearances:
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Plaintiff in person
A Martin for First to Fourth Respondents
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Judgment:
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29 August 2018
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JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 29 August 2018 at 11:00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Crown Law, Wellington
CLEMENTS v THE QUEEN OF ENGLAND [2018] NZHC 2244 [29 August 2018]
Introduction
[1] Miriam Clements is vehemently opposed to the use of 1080 poison for pest control. On 28 May 2018, she filed a document in the High Court at Auckland entitled “Statement of Claim for Judicial Review Treason – Act of War, Act of Bio-Terrorism”. In the statement of claim she sought a Court order that all 1080 drops be prohibited immediately as well as a range of related orders. At the same time, she sought interim orders until the Court could hear her substantive claim.
[2] On 1 June 2018, the first to fourth respondents (the respondents) filed a notice of opposition to Ms Clements’ application for interim relief. Then on 6 June 2018 they also filed an interlocutory application to strike out the statement of claim. On 7 June 2018, the proceedings came before Fitzgerald J. At the hearing before Fitzgerald J, Ms Clements sought immediate interim relief. This was refused by Fitzgerald J, who put in place a timetable designed to bring both Ms Clements’ application for interim relief and the respondents’ strike-out application on for hearing with a fixture on 21 August 2018.
[3] Ms Clements subsequently filed two amended statements of claim dated 12 July 2018 and 19 July 2018. Without opposition by counsel for the respondents, the hearing proceeded on the basis of the amended statement of claim dated 19 July 2018.
[4] After immediate interim relief was refused by Fitzgerald J on 7 June 2018, Ms Clements made a second application for interim orders, which was dismissed by Churchman J on 19 July 2018. Ms Clements then made a third application for interim orders, which was dismissed by Jagose J on 1 August 2018. A fourth application for interim relief was filed by Ms Clements on 6 August 2018. In a minute of the same date, Wylie J noted that Ms Clements’ original application for interim relief was still due to be heard on 21 August 2018. He therefore directed that Ms Clements’ most recent application not be accepted by the Registrar for filing. It was not in accordance with the High Court Rules 2016 and simply sought to relitigate matters which were already before the Courts and which were due for hearing on 21 August 2018.
Preliminary issues
[5] A number of preliminary issues arose before Ms Clements’ application for interim relief and the respondents’ strike out application could be heard.
[6] Ms Clements attempted to file charging documents in the Auckland District Court against the Queen, Governor-General, Prime Minister and unnamed subordinates for conducting, allowing and/or sanctioning a systematic chemical warfare attack against New Zealand’s rural population. She also attempted to file charging documents against Auckland’s mayor and deputy mayor as well as six councillors for planning to unlawfully dispose of all public land assets in Auckland City so that the rural population could be forcibly transferred to the city from the countryside which is being devastated by chemical warfare. The draft charging documents appear to have been allocated file number CRI-2018-004-007007.
[7] The draft charging documents were referred to Judge Ryan on 7 August 2018. In a minute dated 8 August 2018, Judge Ryan directed:
As this matter is already before the High Court with a hearing date of 21 August 2018 and as the private prosecutor refers in her statement of claim seeking urgent relief to decisions of the High Court, this Court has no jurisdiction to deal with this proceeding.
I direct the Registrar not to accept the charging documents, statement of claim, and application for urgent relief because they seek to litigate matters already before the High Court with a date for hearing already provided.
[8] Ms Clements argued that Judge Ryan had in fact directed that the criminal proceedings be heard with these proceedings in the High Court. I disagree. Judge Ryan merely directed that the Registrar was not to accept the charging documents for filing in the Auckland District Court. There is no provision in the Criminal Procedure Act 2011 which enables the High Court to accept charging documents for filing. Moreover, criminal proceedings are always heard and determined separately from any civil proceedings. There is no ability to hear the two together.
[9] In those circumstances, I declined Ms Clements’ application to join the criminal proceedings to the civil proceedings. Any criminal proceedings have to be initiated in the District Court, not the High Court.
[10] In separate proceedings filed in the High Court at Auckland and allocated file number CIV-2017-404-002792, Ms Clements sought judicial review of a decision she asserted Auckland Council has made to dispose of public land assets, including a car park at 40 Anzac Avenue, Takapuna, on Auckland’s North Shore. After various interlocutory appearances, the proceedings were set down for hearing on 13 August 2018. On that date, Ms Clements did not appear. Wylie J adjourned the matter until
11.45 am and issued a minute in which he indicated that he would proceed to hear the case in Ms Clements’ absence if she did not attend. Ms Clements responded by email advising that she could not physically be at the hearing and said that the hearing must be adjourned.
[11] Notwithstanding Ms Clements’ request for adjournment, Wylie J proceeded to hear the proceedings and dismissed it for want of prosecution.1
[12] Ms Clements sought to join the proceedings which have been dismissed by Wylie J with these proceedings on the basis that they were arguably two functions of the same crime. I told Ms Clements that I was not able to do so because the proceedings had been struck out and they were no longer current. She advised me, however, that she had appealed the strike-out decision to the Court of Appeal.
Application to transfer case to the Supreme Court
[13] Finally, Ms Clements sought the transfer of these proceedings to the Supreme Court on the basis that the conduct of the Judges scheduled prior on the case had been predetermined, biased, conflicted, and at times vexatious and aggressive which had led Ms Clements to have little to no confidence that access to an impartial or fair hearing existed in the High Court.
1 Clements v Auckland Council [2018] NZHC 2084.
[14] In discussions with me, however, Ms Clements did not advance the application for transfer. I explained to her that there was, in any event, no jurisdiction to transfer the case to the Supreme Court for hearing. I told her that I would approach the hearing in an impartial and fair-minded manner.
Statement of claim
[15] The decision challenged in the 19 July 2018 statement of claim is the 2018 Budget allocation by the Government. Specifically, the allocation of $436 million of operational funding and $213 million of capital funding for the protection of New Zealand’s natural resources. The 2018 Budget stated:
[16] The 2018 Budget allocation is challenged on the basis that it empowers, directs and finances conduct, promotion and operations relevant to “Eradicating Predators, Managing Species, Biodiversity and Chemical Warfare Poisoning” programmes, false
“Biosecurity and Environmental Protection” programmes, emergency response funding for the false diseases promoted as “Mycoplasma Bovis and Toxoplasmosis – which also finances the MPI civil military force for surveillance, intimidation and threats against farmers; and the consequential structural reform attempted by the “Climate Change Commission and Zero Carbon Legislation, due to deliberately inflicting Climate Change by Chemical Warfare.”
[17] Ms Clements alleges that the following crimes will be facilitated by the 2018 Budget allocation:
- (a) Treason and conspiracy to commit treason (s 73 of the Crimes Act).
(b) Attempted treason (s 74 of the Crimes Act).
(c) Accessory to treason (s 76 of the Crimes Act).
(d) Participation in organised criminal group (s 98A of the Crimes Act).
(e) An act of bio-terrorism (s 5(3) of the Terrorism Suppression Act).
(f) Attempted murder (s 173 of the Crimes Act).
(g) Conspiracy to murder (s 175 of the Crimes Act).
(h) Use of chemical weapons (s 6 of the Chemical Weapons (Prohibition) Act).
(i) Torture (s 3 of the Crimes of Torture Act).
(j) Violation of standard of care (s 150A of the Crimes Act).
(k) Failure to provide necessaries of life (s 151 of the Crimes Act).
(l) Culpable homicide (s 160 of the Crimes Act).
(m) Poisoning with intent (s 200 of the Crimes Act).
(n) Causing sickness in animals (s 298A of the Crimes Act).
(o) Contaminating food, crops, water (s 298B of the Crimes Act).
(p) Threatening to kill or do grievous bodily harm (s 306 of the Crimes Act).
(q) Violation of right of all sovereigns to forage for food in a natural eco system under the Treaty of Waitangi.
(r) Genocide (s 9 of the International Crimes and International Criminal Court Act).
(s) Crimes against humanity (s 10 of the International Crimes and International Criminal Court Act).
(t) War crimes by chemical warfare (s 11 of the International Crimes and International Criminal Court Act).
[18] Ms Clements argues that the cost to New Zealand if these crimes are not halted is arguably devastation of our health, lives and families, mass torturing of animals to death, unsustainable poisoning of our environment, collapse of our natural ecosystem, artificial creation of the sixth extinction, arguable loss of our primary sector to ideological state control and eventual forcible displacement of our countryside populations to the city when the deliberately toxified countryside becomes uninhabitable without water.
[19] The interim order sought by Ms Clements to protect her position in terms of s 15(1) of the Judicial Review Procedure Act 2016 is that the New Zealand Crown, Government, State or private sector partners ought not to continue any conduct related to the programmes identified by the 2018 Budget as “environmental protection” and promoted as “protecting our natural resources”. According to Ms Clements, this order will halt all conduct, promotion and operations relevant to eradicating predators, managing species, biodiversity and poison programmes; will halt the false biosecurity and environmental protection programmes, halt the emergency response funding for mycoplasma bovis, which finances the MPI civil military force for surveillance, intimidation and threats against farmers and halts the Climate Change Commission and zero carbon legislation as the intended structural reform by deliberately inflicting climate change by chemical warfare. The order sought by Ms Clements will also halt all related conduct by DOC, MPI, ERMA, Ministry for the Environment, Medical Officers of Health, Regional and District Councils, Ospri, ZIP, NEXT, Federated Farmers, Forest and Bird, Landcare and all other participating organisations in this group crime.
[20] Ms Clements also requests the High Court to grant an order to halt the proposed zero carbon legislation from progressing in Parliament or passing as new legislation and halt changes to the National Animal Identification and Tracing Act 2012 until the case is resolved, so that new legislation is not developed to irrevocably change the identity of the nation, based on frauds which will be categorically evidenced by the substantive case.
[21] There is an immediate difficulty for Ms Clements as interim relief on judicial review is only available to protect an applicant’s position, usually to preserve the status quo. The orders sought in Ms Clements’ application for interim relief are much the same as those sought in the substantive proceedings. The orders do not preserve the status quo, but require the immediate cessation of a very wide range of central government, local government and private programmes relating to environmental protection. They are just not available in an application for interim relief.
[22] There are, however, more fundamental difficulties for the proceedings filed by Ms Clements, which have prompted the respondents to file an application to strike-out the proceedings. It is to that application that I now turn.
Principles for strike-out application
[23] Rule 15.1(1) of the High Court Rules 2016 provides the power for the High Court to strike-out all or part of a proceeding:
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.
...
[24] The relevant principles are as follows:
(a) A strike out application proceeds on the assumption that the facts pleaded in the statement of claim are true.2 Unless they are self-evidently speculative or false.3
(b) Before the Court may strike out proceedings, the causes of action must be so clearly untenable that they cannot possibly succeed.4 The case must be “so certainly or clearly bad” that it should be precluded from going forward.5
(c) The Court may strike out proceedings if it is likely to cause prejudice or delay. Pleadings which can cause delay include those that are “prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible”.6
(d) The Court may also strike out a claim if it is frivolous, vexatious, or otherwise an abuse of the Court’s process. A frivolous proceeding is one which trifles with the Court’s processes, while a vexatious one contains an element of impropriety.7 A proceeding that is “otherwise an abuse of process” captures all other instances of misuse of the Court’s processes.8
(e) The jurisdiction is to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material.9
2 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
3 Siemer v Judicial Conduct Commissioner [2013] NZHC 1853 at [13]
4 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
5 W v Essex County Council [2000] UKHL 17; [2001] 2 AC 592 (HL) at p 601.
9 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
(f) The fact that a strike out application raises difficult questions of law and requires extensive argument does not exclude jurisdiction.10 But particular care is required where the law is confused or developing.11
Discussion
[25] After hearing at length from Ms Clements, I am of the view that the statement of claim should be struck out as disclosing no reasonably arguable cause of action. It is also likely to cause prejudice or delay.
[26] First, the decision challenged by way of judicial review, being the allocation of $649 million in the 2018 Budget to protecting New Zealand’s natural resources, covers a wide range of policy initiatives and financial allocations. Ms Clements tries to draw together the use of 1080 poison for pest control, the response to the mycoplasma bovis outbreaks in dairy cattle and the causes of climate change into one giant criminal conspiracy headed by the Queen. The respondents understandably submit that they are quite unable to fully understand the claim against them or respond to it in a meaningful way. There is no particular decision clearly identified which would be amenable to challenge by way of judicial review. The Budget allocation is a combination of many different decisions made by a very wide range of officials. The proceedings contain no detail about the individual components of the budget allocation and do not identify the decision-makers, apart from claiming that the Queen, Governor-General and Prime Minister are ultimately responsible. The fifth respondents are described as subordinates to the crime. No one is individually identified.
[27] Second, Ms Clements alleges wide-ranging criminal conduct in the statement of claim. She has attempted to prosecute the crimes by filing charging documents in the District Court. Criminal charges cannot, however, be brought or determined in a civil proceeding, such as this application for judicial review. Extensive reliance is also made in the statement of claim on the Rome Statute of the International Criminal Court, for example, as giving jurisdiction to this Court to make orders necessary to
10 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
11 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
prevent the continuation of the crimes. It is, however, an instrument of international law that cannot be directly implemented in a New Zealand court.
[28] Third, I agree with the respondents that the central theme of the statement of claim, being the deleterious effect of the aerial application of 1080 poison for pest control, is not suited to scrutiny by the courts except on a narrow error of law or unreasonableness ground because of the technical and scientific nature of the issues involved. Courts require only that an administrative decision such as a Budget allocation be based “upon evidence that has some probative value” or in other words, upon “material that tends logically to show the existence of facts consistent with the finding”.12 The respondent submits that the kind of detailed factual challenge that Ms Clements wishes to bring is better suited to a submission during consultation on the use of 1080 or a complaint to the Ombudsman. I agree. Certainly, in its present form, I am of the view that Ms Clements’ challenge is non-justiciable. There are undoubtedly a number of people, such as Ms Clements, who are vehemently opposed to the aerial application of 1080 poison for pest control. However, they cannot deny that pest control programmes in New Zealand have been implemented on the basis of comprehensive scientific advice. It is just that they do not agree with it. A court is ill-suited to adjudicate on such a dispute.
[29] Fourth, the statement of claim contains a large amount of discursive commentary on a wide range of issues. I set out page 40 of the 49 page statement of claim as an example:
12 Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR 662 (PC) at 671.
issue with our unlicensed journalists failing to present a balanced portrayal of the facts; or question what is clearly irrational, costly narratives.
G. Impose a political ideology on the population,
H. Irrational, disproportionate use of public power, to achieve the goals of sustainable transition;
[30] It is impossible to respond meaningfully to this type of commentary. I am of the view that this type of commentary cannot be made justiciable by repleading. Since
her first statement of claim dated 29 May 2018, Ms Clements has filed two further amended statements of claim, with the latest version dated 19 July 2018. The statements of claim are all similar in their approach, which seems to be fundamental to the nature of Ms Clements’ claim. Ms Clements would find it very difficult to modify her very fixed views on what she sees as a grand criminal conspiracy to replead her claims in such a way to make it justiciable. There would also undoubtedly be considerable delays and real prejudice to the respondents in the process.
[31] Finally, much of the relief sought is not sufficiently particularised to be capable of being granted. For example, an order is sought that the Ministry of Primary Industry “should be ordered to revert to their role as boarder [sic] control”. The Court is also asked to consider ordering restriction on technology “such as A.I. facial recognition killer robots or effective civil military forces, that could be used against the human population, in the case of an uprising, which will occur when people come to understand that they are being deliberately poisoned to death and disease, if this poisoning is not immediately halted.”
[32] Ms Clements also seeks orders against journalists who do not support her position. The Court is asked to consider ordering the licensing of journalists “to ensure a higher standard of analytical approach to narratives that risk the divestment of the nation and ill-health of the population” and “how best to hold the media who propagate their false narratives to account when such serious consequence is effected.”
[33] The Court is also asked to consider “appointing a crisis government of merit to manage the catastrophic consequence of recovering from this crime”, “given the level of political complicity which exists in the current Parliament”.
[34] The Court is quite unable to make any such orders.
Result
[35] The statement of claim is difficult to understand, and does not clearly identify which decisions are challenged. It does not plead any clear cause of action or identify any valid grounds of judicial review. Irrelevant factual material is pleaded and the orders sought are, in general, outside the Court’s power. In summary, the claim
discloses no reasonably arguable cause of action and is likely to cause prejudice and delay.
[36] It is, accordingly, struck out under r 15.1 of the High Court Rules 2016.
Woolford J
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