SMYTH-DAVOREN v MOUNTBATTEN (BORN WINDSOR) [2018] NZCA 524

SMYTH-DAVOREN v MOUNTBATTEN (BORN WINDSOR) [2018] NZCA 524 [23 November 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA397/2018[2018] NZCA 524BETWEEN DWAYNE RUSSELL WARAKIHI MAAKASMYTH-DAVORENAppellantAND ELIZABETH II ALEXANDRA MARYMOUNTBATTEN (BORN WINDSOR)RespondentCounsel: Appellant in personV McCall for RespondentJudgment:(On the papers)23 November 2018 at 2.00 pmJUDGMENT OF THE WILLIAMS J(Review of Registrar's Decision)The application for review of the Registrar's decision refusing to dispense withsecurity for costs is declined.____________________________________________________________________REASONS[1] The appellant, Mr Smyth-Davoren, seeks review of the Registrar's decisiondeclining to dispense with security for costs in this appeal. By minute of 25 June 2018Whata J struck out one of the appellant's proceedings (referred to as proceeding 0174)and stayed the second proceeding (referred to as proceeding 0178). Both proceedingswere brought against the Queen (in her personal capacity). As Whata J summarisedproceeding 0174 sought:[i] a declaration affirming 34 rights at law;[ii] orders relating to the plaintiff's legal status;[iii] orders relating to the status of another identified person;[iv] orders relating to the plaintiff's entitlements;[v] a specific order requesting enrolment in a theology course; [and][vi] orders "to let out of prison Ngatata Love, based on the given allegedfacts of the plaintiff's opinion of the imprisonment, decoding of legaldocuments and acceptance of money".[2] The thrust of the proceeding (to the extent that it is discernible at all) is thatthe appellant sought a ruling from the High Court that he was not a person forthe purposes of New Zealand law and so not subject to it.[3] The Judge struck the proceeding out as "largely incoherent and an abuse ofprocess". The pleadings, he said, failed to identify any fact, principle or rule of lawcapable of founding the High Court's jurisdiction to make the declarations and orderssought.[4] Proceeding 0178 was not, in the Judge's view, quite so incoherent. It soughtassistance to identify and determine rights of inheritance to lands, including orders forsearching of the files of named Government and other agencies together with costs.In the case of this proceeding, the Judge directed the pleadings be served onCrown Law with an invitation to identify appropriate defendant or defendants.The Judge stayed the proceeding pending Crown Law's response and the necessaryamendments to the pleadings in light of that response.[5] In this Court, the Registrar waived the filing fee for the appeal but on17 October 2018 declined the appellant's application to dispense with security forcosts in the sum of $6,600. For the purposes of that application, the Registrar notedthere was insufficient information on the point. But even if impecuniosity could beestablished, she concluded the appeal involved no issue of public interest, so lackedmerit that a reasonable and solvent litigant would not proceed with it, and the costslikely to be incurred by any respondent would be too significant to justify waiver.[6] The appellant then applied for review of this decision under r 7(2) of the Courtof Appeal (Civil) Rules 2005 and filed further submissions on 16 November 2018.A single judge may review such decision in the exercise of powers conferred unders 49(6) of the Senior Courts Act 2016. The principles to be applied are set out inReekie v Attorney-General.1 The default position is that security for costs should beprovided in relation to an appeal to this Court.2 And a departure from that principlewill be exceptional.3 Security for costs may be dispensed with if it is appropriate torequire the respondent to defend the challenged judgment without the usual protectionas to costs that security for costs will provide.4 But access to this Court forimpecunious appellants should be preserved where the appeal is one that a solventappellant would reasonably wish to prosecute.5[7] I am prepared to accept for present purposes that the appellant in this case isimpecunious and it is necessary therefore to assess in general terms (and withappropriate circumspection) the merits of the appeal to determine whether the solventappellant test in Reekie is made out.[8] I agree with the Registrar that the appellant has no prospects of success in thisappeal. The Judge's description of the nature of proceeding 0174 is accurate. Theway the claim is pleaded, it is relatively difficult to identify a coherent objectiveagainst which the test in Reekie can be applied. It is most unlikely therefore that asolvent appellant would wish to pursue it.[9] As to proceeding 0178, the order the Judge made was a procedural one:effectively the appellant was directed to correspond with Crown Law overthe appropriate defendant and make any necessary amendments to the pleadingsbefore further steps could be taken. Such order was both sensible and of real assistanceto the appellant. There is no prospect that it would be overturned on appeal. A solventappellant would not reasonably wish to prosecute this aspect of the appeal either.1 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.2 At [6].3 At [28].4 At [21].5 At [35].[10] The application for review of Registrar's decision refusing to dispense withsecurity for costs is declined.Solicitors:Crown Law Office, Wellington for Respondent