MC v CHIEF EXECUTIVE OF ORANGA TAMARIKI, MINISTRY FOR CHILDREN [2020] NZHC 296

MC v CHIEF EXECUTIVE OF ORANGA TAMARIKI, MINISTRY FOR CHILDREN [2020] NZHC 296 [27February 2020]NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11CAND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-73[2020] NZHC 296UNDER the Judicial Review Procedure Act 2016BETWEEN MCApplicantAND CHIEF EXECUTIVE OF ORANGATAMARIKI, MINISTRY FOR CHILDRENRespondentHearing: 20 February 2020Appearances: The applicant in personL M Jackson for the respondentJudgment: 27 February 2020JUDGMENT OF PALMER JThis judgment was delivered by me on Thursday 27 February 2020 at 11.00am.Pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Party:The applicantCrown Law, WellingtonWhat happened?[1] The applicant sought to file these judicial review proceedings on 21 January2020, challenging decisions of the Family Court.1 The statement of claim is not easyto follow in terms of New Zealand law. After certain background is recited, the two"forms of action" stated are:1. The issue in law is that Judge I Malosi failure to identify the"Defendant" and use a statutory power is a fatal objection to thejurisdiction of the court when it has not cognizance of the subject-matter of the action, facts or testimony to substantiate the claim,Actual facts not mere allegations are determinative of issue ofjurisdiction.2. Judge I Malosi failed to call Persecutor to take the stand and testifythat the Defendant and [MC] were one and the same while underoath and relied on Affidavit and hearsay.[2] The relief sought for the first of these is that the judgment is void ab initio and,for the second, "Reinstatement, Restitution and Discharge". As best as I candetermine, on the construction most generous to the applicant, she is concerned aboutthe following procedural irregularities in the Family Court's proceeding:(a) Ms MC was not served with notice that the plaintiff was going toproceed with court action for summary judgment; and(b) the Judge's decision was ultra vires and failed to observe natural justice,due process or procedural fairness. But no details are given of thesealleged defects.[3] When the proceeding was filed, the Family Court judgment was the subject ofappeal to the High Court, including on the ground of alleged procedural irregularities.On 16 April 2019, Gordon J had issued a judgment setting out the issues to bedetermined on appeal, including alleged procedural irregularities. The appeal hearingwas on 5 December 2019, but no judgment had yet issued.1 Chief Executive of Oranga Tamariki, Ministry for Children v MC [2018] NZFC 4705. I anonymisethis judgment, under the Family Court Act 1980, in the same way as was done in that judgmentand its appeal judgment.[4] The Registry referred the applicant's materials related to the application forjudicial review to the Duty Judge, under r 5.35A of the High Court Rules 2016(the Rules) on the basis they may be an abuse of the process of the Court. On23 January 2020, Fitzgerald J issued a minute, observing that the judicial reviewproceedings may raise slightly different allegations to those to be determined in theappeal proceedings. She ordered that the application for judicial review be served onthe respondent but stayed pending determination of the appeal proceedings.[5] On 31 January 2020, Hinton J issued judgment in the appeal proceedings,dismissing the appeal.2Submissions[6] At the call of the judicial review proceedings in the Judicial Review List on20 February 2020, Ms MC submitted:(a) The issues in the application for judicial review are not those in theappeal.(b) While the appeal is in respect of due process issues which were beforeHinton J, she did not take them into consideration.(c) Ms MC should not have raised the due process issues in the appeal. Sheshould have raised them in a judicial review because of their focus onprocedural irregularities. That was why Hinton J did not take them intoaccount.(d) Oranga Tamariki refused to let her take her points on appeal, asreflected in the ruling of Gordon J.(e) When her children were taken, Oranga Tamariki did not have a courtorder and would not address that point in the appeal. Hinton J said that2 MC v The Chief Executive, Oranga Tamariki [2020] NZHC 50.was not in the approved list of points for appeal. Ms MC considers shedid not get a fair hearing at the appeal hearing.(f) This resulted in a clear miscarriage of justice.(g) Ms MC objects to a proposed strike-out of the application for judicialreview on the basis she was unable to address her whole situation whichis based on forgery.(h) Ms MC requested a transcript and audio recording by email and inperson to the Registry and has not received anything. I have remindedthe Registry of this and the transcript has been sent to her.[7] Ms Jackson, for the Chief Executive, noted that the decision as to whether theapplication is an abuse of process was raised by Fitzgerald J, not by theChief Executive. But she submitted there are matters indicative of abuse of processas the issues in the judicial review appear in substance to be those in the appeal.She handed up to me, and gave to Ms MC, a comparative table. She submitted theappeal judgment considered a wide range of procedural concerns, three issues aboutjurisdiction and evidential concerns about forgery, and rejected all of them.Ms Jackson submitted the application for judicial review would be a collateral attackon the High Court appeal judgment and would be fruitless.Law[8] Rule 5.35B of the Rules provides that the Court may strike out a proceedingunder r 15.1 if satisfied the proceeding is plainly an abuse of the process of the court.The title of the rule suggests the power applies "before service". No doubt that isbecause r 5.35A(3)(b) empowers the Registry, who refers such a proceeding to a judge,to decline to release the notice of proceeding for service. However, there is nothingin the text of these rules otherwise to suggest the power may not be exercised afterservice, as has happened here.[9] Rule 15.1 provides a Court may strike out all or part of a pleading if it:(a) discloses no reasonably arguable cause of action, defence, or caseappropriate 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.[10] Rule 15.1(4) provides this rule does not affect the Court's inherent jurisdiction.I consider that, even if r 5.35B is limited to the period before service is effected, thesame power is available to the Court under its inherent jurisdiction.Should the statement of claim be struck out?[11] The two "forms of action" which appear to be the point of the statement ofclaim do not disclose causes of action known to the law of judicial review.The complaint about the notice of the court action was dealt with at length in theappeal judgment. The statement of claim provides no details for the various categoriesof procedural irregularities listed by label. I cannot identify issues in the applicationfor judicial review different from those dealt with in the appeal judgment.[12] I consider that the statement of claim discloses no reasonably arguable causeof action, hearing it is likely to cause prejudice and delay to the respondent and thecourt system and it is an abuse of the process of the court. I strike out the statementof claim accordingly.[13] Finally, I note that Ms MC appears to be advised by people styling themselvesthe "Universally Internationally Recognized Federal Marshals". This court has seenthe effects of such advice before. It is often incomprehensible in terms of law andrisks severely misleading and disadvantaging the litigant. I urge Ms MC to getqualified legal advice.Palmer J