SIXTUS v ARDERN [2023] NZCA 521

SIXTUS v ARDERN [2023] NZCA 521 [26 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA306/2022[2023] NZCA 521BETWEEN CATHERINE ANNE SIXTUSAppellantAND JACINDA KATE ARDERNFirst RespondentKRIS FAAFOISecond RespondentANDREW LITTLEThird RespondentASHLEY BLOOMFIELDFourth RespondentCourt: Brown and Katz JJCounsel: Appellant in personP J Gunn and A J Vincent for RespondentsJudgment:(On the papers)26 October 2023 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time under r 43(2) of the Court ofAppeal (Civil) Rules 2005 is declined.B The appellant must pay the respondents jointly one set of costs fora standard interlocutory application on a band A basis, with usualdisbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The appellant appeals from a judgment of Cooke J dated 24 May 2022 strikingout under r 15.1 of the High Court Rules 2016 the appellant's statement of claim onthe ground the proceeding was an abuse of process.1[2] On 21 June 2022 the appellant filed a notice of appeal against that decision.She has not yet paid the filing fee in respect of her appeal and consequently has beenunable to apply for the allocation of a hearing date as required by r 43(1) of the Courtof Appeal (Civil) Rules 2005 (the Rules).2[3] On 23 May 2023 the appellant filed an interlocutory application under r 43(2)for an extension of time for complying with r 43(1). The respondents oppose theapplication.The High Court judgment[4] The appellant's statement of claim was filed and served in March 2022.The nature of the claim was unclear. Declaratory relief was sought in the followingterms:31. Do pray A declaration to consolidate the 1865–1908 native rights Acts andincluding a new declaration to deem European progeny and Native ma-ori progeny, posterities and New Zealand people - to be deemed to benatural-born subjects of (H)er Majesty Queen Elizabeth II ofUnited Kingdom and Ireland as it pleased Almighty God.And to declare that the Native AB-original "will" of 1865 and EuropeanAncient "will" of 1688 English speakers of New Zealand to (t)heirprogeny be protected by the Queens Courts of Law to continue to extendover the persons and properties of all Her Majesty's subjects within NewZealand.2. Do pray A declaration to the affect clearly stating the applicants' Ancient1688 subject right under Almighty God exists pursuant to s 28 Other1 Sixtus v Ardern [2022] NZHC 1161 [High Court judgment].2 Rule 37(2) specifies that an appellant may not apply for the allocation of a hearing date underr 38(1) if they are in default of any obligation to pay prescribed fees.3 High Court judgment, above n 1, at [2].rights and freedoms not affected of the 1990 New Zealand bill of rightordinary law, without ordering any specific action pursuant to section 2of the Declaratory Judgements Act 1908.3. Do pray A declaration to the affect that when two subordinating laws(1993 electoral Act 55 (b)(c) and 55 AA) conflict each other with both anargument for the declaration of indubitable and progeny right that pleasedAlmighty God and an argument for the declaration of inconsistencyfundamental right.Which right shall be deemed, and taken to be allowed?Which declaration whatsoever shall serve their Majesties for all times tocome?4. Do pray A declaration that every particular of the New Zealandparliament, including High Courts and all Ministers to dispense with lawsand exercise of late in clear language and particularly 1688 Subjects Billof Rights New Zealand or 1990 New Zealand Bill of Rights or"Fundamental Bill of Rights New Zealand" and to avoid the confusionthat has been cruelly and deceptively dispensed of late:So help me God[5] The Judge identified two fundamental problems with the statement of claimwhich he considered were not capable of being remedied by amendment:[16] The first point is that the allegations are unintelligible. It is notpossible from a reading of the statement of claim to understand whatallegations are being advanced in relation to particular rights or other legalmatters, and what it is that has led to a relevant issue about them.The allegations in the statement of claim are very broad, and it does notidentify particular disagreements or uncertainties in relation to matters of lawthat would be capable of being the subject of a declaration. The applicants'memorandum responding to the criticisms, and the oral arguments advancedby Ms Sixtus, did not make the position any clearer. I accept Mr Gunn's pointthat the pleaded claim is unintelligible. That is essentially the same conclusionthat Palmer J reached in relation to the related proceeding in Moore v Faafoiwhich [was] struck out on 18 May under r 5.35B.[17] Secondly, to the extent that it is possible to discern the allegationsmade, many are not within the jurisdiction of the Court. The matters listed asgrievances referred to above involve matters of policy, and some involvecriticisms of Parliamentary enactments. That is so in relation to the firstdeclaration that Ms Sixtus advised was being sought which seeks a"consolidation" of two ancient statutes. This is referred to in the firstdeclaration sought in the statement of claim. Such matters are not within thejurisdiction of the Court. The grievances involve political issues, and debateson matters of policy. The Court is concerned with questions of law, and [with]resolving genuine disagreements or uncertainties on the meaning and effect oflegislation or other legal instruments or questions. It does not havejurisdiction to determine questions of policy.Relevant principles[6] As this Court explained in Yarrow v Westpac New Zealand Ltd, the decision ofthe Supreme Court in Almond v Read,4 although concerned with r 29A of the Rulesrather than r 43, applies to any interlocutory application for an extension of time wherethere is a right of appeal.5[7] The Supreme Court there stated that the ultimate question when consideringthe exercise of the discretion to extend time is what the interests of justice require.That necessitates an assessment of the particular circumstances of the individual case.The Court identified a number of factors which were likely to require consideration,including the length of the delay, the reasons for the delay and the conduct ofthe parties.6[8] The Court accepted that the merits of a proposed appeal may, in principle, berelevant to the exercise of the discretion to extend time. However the Court stated:7 [A] decision to refuse an extension of time based substantially on the lackof merit of a proposed appeal should be made only where the appeal is clearlyhopeless. An appeal would be hopeless, for example, where, on facts to whichthere is no challenge, it could not possibly succeed, where the court lacksjurisdiction, where there is an abuse of process (such as a collateral attack onissues finally determined in other proceedings) or where the appeal isfrivolous or vexatious. The lack of merit must be readily apparent. The powerto grant or refuse an extension of time should not be used as a mechanism todismiss apparently weak appeals summarily.Discussion[9] Although the notice of appeal was filed well over a year ago, the appellant hasnot paid the filing fee for the appeal. Nor has she paid security for costs or lodged acase on appeal.[10] Her disinclination to pay the filing fee has resulted in the matter twice beingconsidered by the Supreme Court. The first occasion was a judgment dated1 February 2023 declining the appellant's application for review of the decision by4 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.5 Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].6 Almond v Read, above n 4, at [38]–[39].7 At [39(c)].the Deputy Registrar of the Supreme Court to decline to waive the filing fee on herapplication for leave to appeal to that Court.8 The target of her proposed appeal wasthis Court's decision of 12 August 2022 declining an application to review the decisionof a Deputy Registrar of this Court not to waive the payment of the filing fee on theappeal on public interest grounds.9 The second occasion was on 12 July 2023 whenthe Supreme Court dismissed the appellant's application for an extension of time toapply for leave to appeal from the decision of 12 August 2022.10[11] The appellant filed a memorandum in support of the current application,addressing in some detail what she alleged were delays on the part of the Court inresponding to her various communications. Annexed to her memorandum wereseveral copies of communications said to be illustrative of her contention.[12] However the reality is that a significant period of time elapsed during whichthe appellant unilaterally failed to take steps to progress her appeal. In her r 43(2)application she explained:Then suddenly, Her Majesty Queen Elizabeth II passed away. Since my caseis a petition to the King pursuant to the Bill of Rights 1688 [imp], I deemed itto be respectful to let King Charles III mourn his beloved mother. Then, Ithought it rightful to await the Coronation of His Majesty King Charles III andQueen Camilla.As the respondents correctly observe, the courts continued to operate duringthat period. Litigants were still required to meet their obligations, notwithstandinga change of Sovereign. In our view the appellant has failed to provide an adequateexplanation for the delay in this matter.[13] However, quite apart from the length of the delay and the reasons for it, weconsider that the respondents' submission is sound that the proposed appeal ismeritless. The respondents emphasise that in striking out the claim Cooke Jconsidered the allegations made were unintelligible, that no cause of action wasdisclosed and that the deficiencies were too fundamental to be remedied by8 Re Sixtus [2023] NZSC 1.9 Sixtus v Ardern [2022] NZCA 372.10 Sixtus v Ardern [2023] NZSC 84.amendment. We share that view. It is in the interests of justice that this litigationshould not be further prolonged.Result[14] The application under r 43(2) for an extension of time is declined.[15] The appellant must pay the respondents jointly one set of costs for a standardinterlocutory application on a band A basis, with usual disbursements.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondents