POWER v LITTLE [2022] NZHC 143

POWER v LITTLE [2022] NZHC 143 [10 February 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECIV-2022-443-1[2022] NZHC 143UNDER the Crimes Act 1961 and the New ZealandBill of Rights Act 1990BETWEEN BRETT WILLIAM POWERPlaintiffAND ANDREW JAMES LITTLEDefendantOn the PapersJudgment: 10 February 2022JUDGMENT OF GWYN JIntroduction[1] Mr Power presented for filing in the New Plymouth Registry of the High Courta proceeding against the above-named defendant. The proceeding has been given theRegistry number CIV-2022-443-1. The proceedings were referred to me, asDuty Judge, by the Registrar under r 5.35A of the High Court Rules 2016.The proceedings[2] The proceeding relates to the Pfizer COVID-19 vaccine (the vaccine), andMr Power's concerns about the nature, effectiveness and safety of the vaccine. Italleges three causes of action:(a) A breach of s 165 of the Crimes Act 1961(Causing death that mighthave been prevented).(b) A breach of s 111 of the Crimes Act 1961 (False statements ordeclarations).(c) A breach of the New Zealand Bill of Rights Act 1990.[3] The relief sought by the plaintiff is:(a) That the defendant be brought to court to answer the charges of breachof ss 111 and 165 of the Crimes Act 1961 and breach of theNew Zealand Bill of Rights Act 1990.(b) A declaration that the COVID 19 Public Health Response(Vaccinations) Amendment (Bill No. 2) 2021 is in breach of the Bill ofRights Act and s 111 of the Crimes Act 1961.(c) An order that all COVID-19 instructions, orders and legislation arisingfrom the defendant's response to the COVID-19 pandemic be rescindedand repealed.(d) That the special powers afforded a Prime Minister at s 5 of the EpidemicPreparedness Act 2006 be removed from the Act and replaced with theapproval of Parliament.(e) That the Court petition the Governor-General to remove the currentPrime Minister and her government from office with immediate effect.(f) That the New Plymouth Police immediately arrange for the arrest anddetention of the defendant, awaiting trial for the alleged crimes.The statement of claim[4] The statement of claim is lengthy. It predominantly consists of what is putforward as evidence of the claims. It is accompanied by a bound volume labelled"Document List" which contains more detailed evidence. In general terms Mr Power'scomplaints, so far as I can discern them, are that the defendant has relied on falsifiedinformation taken from what are alleged to have been fraudulent clinical trials of thevaccine, in order to pass COVID legislation. Mr Power also pleads that the vaccine isnot a traditional vaccine, it is a "genetic altering serum" which does not give lastingimmunity. It has been falsely marketed as a vaccine, but is a medical device. Thesepleadings give rise to the allegations of breach of s 111 of the Crimes Act.[5] In addition, Mr Power pleads that data recorded by Medsafe1 shows that thevaccine was not safe for pregnant women; a number of pregnant women who receivedthe vaccine have had spontaneous abortions or miscarriages as a result of receivingthe vaccine. Mr Power characterises those events as murder and says they could havebeen avoided if the defendant had read the Pfizer clinical trials report or the Medsafereports and acted to uphold his duty to protect public safety. That gives rise to theclaimed breach of s 165 of the Crimes Act 1961.[6] The claim in relation to the New Zealand Bill of Rights Act 1990 (Bill of RightsAct) appears to be that it has been overridden by the enactment of COVID-19legislation and, in particular, the COVID 19 Public Health Response (Vaccinations)Amendment Bill (No 2) 2021.2My assessment of the claim[7] To bring a proceeding the plaintiff must set out a valid legal cause of actionand that cause of action must be brought against the relevant defendant under the law.Notwithstanding that the plaintiff uses the "cause of action" terminology, the currentproceeding does not set out a valid legal cause of action.[8] The first difficulty with the statement of claim is that it is unnecessarily prolix.3In addition, the statement of claim is predominantly evidence rather than pleading, 4or pleads irrelevant material. It does not clearly identify the main issues in respect ofthe defendant.5 It is difficult to understand what duties the defendant is said to owe.1 Medsafe is the New Zealand Medicines and Medical Devices Safety Authority and is the Ministryof Health's medical regulatory body.2 Now enacted as the COVID-19 Public Heath Response Amendment Act (No 2) 2021.3 See for example the judgment of the Court of Appeal in Commissioner of Inland Revenue vChesterfields Preschools Limited [2013] NZCA 53 at [90] and [95].4 At [91] and [95].5 At [90]-[91].The statement of claim relies on s 3A of the Health Act 1954. I assume the referenceis to s 3A of the Health Act 1956 which provides:3A Function of Ministry in relation to public healthWithout limiting any other enactment or rule of law, and withoutlimiting any other functions of the Ministry or of any other person orbody, the Ministry shall have the function of improving, promoting,and protecting public health.[9] Section 3A does not impose a duty on the defendant; nor does any other theprovision of that Act. The plaintiff does not plead any other statutory or common lawduty owed by the defendant.[10] Nor does the claim clearly plead what actions of the defendant allegedly causedthe damage or loss claimed.Crimes Act 1961 – first and second causes of action[11] In addition to the general deficiencies with the statement of claim outlinedabove, the plaintiff faces some fundamental difficulties in respect of the allegedbreaches of the Crimes Act.[12] First, Mr Power is alleging breaches by the defendant of aspects of the criminallaw. While the right to bring private prosecutions is preserved in New Zealand,criminal proceedings in respect of an offence under the Crimes Act must becommenced in the District Court6 and meet the requirements for a charging document.7The Registrar of the District Court may accept the charging document for filing orrefer it to a District Court Judge for a direction as to whether it is sufficient to justifya trial.8 Plainly Mr Power has not followed that procedure and it is not for theHigh Court, in its civil jurisdiction, to receive the charges.[13] Second, Mr Power has misunderstood the meaning of ss 111 and 165 of theCrimes Act. Section 111 provides:111 False statements or declarations6 Criminal Procedure Act 2011, s 14.7 Section 16.8 Section 26.Every one is liable to imprisonment for a term not exceeding 3 yearswho, on any occasion on which he is required or permitted by law tomake any statement or declaration before any officer or personauthorised by law to take or receive it, or before any notary public tobe certified by him as such notary, makes a statement or declarationthat would amount to perjury if made on oath in a judicial proceeding.[14] Section 111 specifically applies to statements or declarations made before aperson or authority authorised to take or receive it. It is concerned with, for example,a declaration made under the Oaths and Declarations Act 1957 or other types ofprescribed or permitted statements made under a statutory power.[15] The statement of claim pleads that the allegedly falsified information has beenused in "attempting to pass new COVID legislation, now before the NZ parliament",but it does not plead the exact nature of the "statement(s)" said to have been made bythe defendant. On the face of the pleading, s 111 has no application to this situation.[16] Section 165 of the Crimes Act provides:165 Causing death that might have been preventedEvery one who by any act or omission causes the death of anotherperson kills that person, although death from that cause might havebeen prevented by resorting to proper means.[17] Section 165 preserves the rule at common law under which a person is heldresponsible for a death if an injury inflicted by him is an operative cause of death(directly or through some secondary condition such as tetanus) even though it couldhave been prevented with proper treatment.9[18] Again, on the face of the pleading, s 165 has no application to the defendant.New Zealand Bill of Rights Act 1990[19] The third cause of action appears to allege that the New Zealand Bill of RightsAct 1990 has been overwritten by a mandatory Health Order or amendment to an9 See Simon France (ed) Adams on Criminal Law — Procedure (looseleaf ed, Thomson Reuters) at[CA 165.01].existing Act. The claim does not specify which specific legislative amendments aresaid to be inconsistent with the Bill of Rights Act or in what respects.Relief sought[20] Finally, the relief sought at [3](d), (e) and (f) above is not within the power ofthis Court.Rules 5.35A and 5.35B of the High Court Rules[21] Proceedings referred by the Registrar under r 5.35A are considered by a Judgeunder r 5.35B. Under r 5.35B I may make certain orders or give directions to ensurethe proceedings are disposed of or proceed in a way that complies with the High CourtRules, if I am satisfied the proceedings are "plainly an abuse of the process of theCourt". I am satisfied the proceedings meet this test. The defendant should not berequired to file a defence to claims that are not legally available against him and wherethe matters pleaded are almost solely matters of evidence.[22] As Mallon J said in Smyth-Davoren v Parker and Ors:10 "the Court would beexercising poor control of its processes if it allowed the proceedings to continue, whichwould require the defendants to respond through the Court process". That is equallytrue of this proceeding.[23] I consider the appropriate course is to strike out the proceeding.11 Theproceeding is not capable of being amended to turn Mr Power's concerns as allegedinto valid claims against this defendant, able to be pursued through the High Court.[24] This proceeding (which has the registry number CIV-2022-443-1) is struck out.Mr Power has a right of appeal against this decision.12 The named defendant is to beserved with this judgment.13Gwyn J10 Smyth-Davoren v Parker and Ors [2018] NZHC 3034 at [8].11 High Court Rules 2016, r 5.35B(2)(a).12 Rule 5.35B(3).13 Rule 5.35B(4).