IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE
CIV-2022-485-134
[2022] NZHC 1161

BETWEEN CATHERINE SIXTUS

First Applicant

KIRI CAMPBELL
Second Applicant

AND JACINDA ARDERN

First Respondent

KRIS FAAFOI
Second Respondent

ANDREW LITTLE
Third Respondent

ASHLEY BLOOMFIELD
Fourth Respondent

Hearing: 23 May 2022

Appearances: First applicant in person

P J Gunn and R M McMenamin for the Respondents

Judgment: 24 May 2022

JUDGMENT OF COOKE J
(Strike-out)

[1] By interlocutory application dated 19 May 2022 the respondents apply to strike
out the applicants’ statement of claim under r 15.1 of the High Court Rules 2016 on
the basis that the statement of claim discloses no reasonably arguable case, that it is
likely to cause prejudice and that it is vexatious. The application is opposed by the
applicants.

SIXTUS v ARDERN [2022] NZHC 1161 [24 May 2022]

Background

[2] The applicants’ statement of claim was filed and served in March 2022. The
nature of the claim advanced is not clear, but it is apparent that it is a claim for
declaratory relief. The declarations sought are pleaded in the following terms:

1. Do pray A declaration to consolidate the 1865–1908 native rights Acts

and including a new declaration to deem European progeny and Native
ma-ori progeny, posterities and New Zealand people - to be deemed to be
natural-born subjects of (H)er Majesty Queen Elizabeth II of United
Kingdom and Ireland as it pleased Almighty God.

And to declare that the Native AB-original “will” of 1865 and European
Ancient “will” of 1688 English speakers of New Zealand to (t)heir
progeny be protected by the Queens Courts of Law to continue to extend
over the persons and properties of all Her Majesty’s subjects within
New Zealand.

2. Do pray A declaration to the affect clearly stating the applicants’ Ancient

1688 subject right under Almighty God exists pursuant to s 28 Other
rights and freedoms not affected of the 1990 New Zealand bill of right
ordinary law, without ordering any specific action pursuant to section 2
of 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 an
argument for the declaration of indubitable and progeny right that pleased
Almighty God and an argument for the declaration of inconsistency
fundamental right.

Which right shall be deemed, and taken to be allowed?

Which declaration whatsoever shall serve their Majesties for all times to
come?

4. Do pray A declaration that every particular of the New Zealand

parliament, including High Courts and all Ministers to dispense with laws
and exercise of late in clear language and particularly 1688 Subjects Bill
of Rights New Zealand or 1990 New Zealand Bill of Rights or
“Fundamental Bill of Rights New Zealand” and to avoid the confusion
that has been cruelly and deceptively dispensed of late:

So help me God

[3] The proceedings were first called before Palmer J on 2 May who recorded the
Crown’s view that the statement of claim was unintelligible and should be repleaded.
Ms Sixtus submitted that the applicants had done quite a good job in their pleadings
and that they stood by them. But Ms Sixtus advised that she was prepared to work
with someone from the Crown to tidy up the claim. Palmer J recorded that the Crown
would engage with the applicants to see if the claim could be tidied up, but also that
the Crown was likely to apply to strike out the proceedings and that the proceedings
should be called before the Duty Judge in the week of 23 May.

[4] The claim has not been amended. A meeting did occur between the Crown
Law Office and Ms Sixtus concerning this proceeding. Ms Sixtus is critical of counsel
in relation to that meeting. She also says that litigants in person should be accorded
latitude, and it is not appropriate for the claim to be struck out.

[5] In the meantime Ms Sixtus and other applicants sought to file a further
proceeding which was referred to Palmer J under r 5.35A of the High Court Rules. By
minute dated 18 May he struck out that further proceeding under r 5.35B. He said:

I am satisfied this proceeding is plainly an abuse of the process of the Court.

It does not adequately identify the decision that is challenged, the legal
grounds of challenge or a proper declaration of legal right. The applicants need
to take legal advice about how to frame their concern in a way which is
recognised in law. It would be unfair to the respondent to require a response
to this proceeding as it currently stands. I strike out the proceeding.

I also note that I enquired of the applicants about the relationship between
these proceedings and proceedings brought by some of the same applicants in
Sixtus v Ardern (CIV-2022-485-134). The applicants have clarified that these
proceedings are separate but advised that they would apply for consolidation
of the proceedings.

[6] The Crown has now applied to strike out this proceeding as anticipated. The
applicants earlier filed an 11 page memorandum responding to the Crown’s criticism
of the claim which includes a list of grievances which Ms Sixtus explained were to
form part of the claim.

[7] The proceedings came before me as Duty Judge on 22 May, and I heard the
respondents’ application at the end of the list.

Relevant strike-out principles

[8] Rule 15.1 provides:

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.

[9] In the present case the respondents say that the claim is unintelligible and raises
no proper matters to which the respondent can meaningfully respond.

[10] The Court has jurisdiction to strike out a claim that is unintelligible and lacks
a proper foundation. Amongst the circumstances in which claims have been struck-
out under r 15.1 are pleadings that are unintelligible or which set out excessive
evidential matters.1 Such proceedings can also be struck out through the procedure
contemplated by rr 5.35A and 5.35B, and occasionally also under the inherent
jurisdiction. Under r 5.35B proceedings can be struck out if it would be manifestly
unfair to the respondents that they be required to plead, and if right thinking people
would regard the Court as exercising very poor control of its processes if it were to
accept the pleading.2 If a proceeding is fundamentally defective for these reasons it
can be struck-out on application under r 15.1 as well as under r 5.35B.

[11] Distilling the principles from the authorities it seems to me that the Court
should strike-out a claim when the pleadings are so unintelligible that it would not be
appropriate to require a response to them. If the deficiencies can potentially be
remedied by amendment then it would be appropriate to give the applicant/plaintiff
the opportunity to re-plead. But if it is apparent from the nature of the claim that no
appropriate cause of action or other claim is capable of being identified then the Court
should strike-out the proceeding. This power should only be used sparingly in light
of the fundamental right of access to the Court. But the rights of parties responding
to litigation must also be respected. It is unjust to compel a party to respond to a
proceeding that is unintelligible, and is not capable of repair.

1 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR
679 at [89]–[91],
2 Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 16 at [6].
Arguments

[12] Mr Gunn accepted that the applicants were genuinely concerned about aspects
of New Zealand law and that their grievances were deeply felt. He also accepted that
they were not lawyers and that some latitude was appropriate. The problem was,
however, that there needed to be some proper case advanced to respond to, and the
pleadings fell well short of that here. He argued that the Crown must have a reasonable
idea about what the case is about, and that the relief sought was something the Court
had jurisdiction to grant. This was not the case here. He accepted that a further
adjournment could be granted to give a further opportunity to remedy the deficiencies,
but he said that the deficiencies were fundamental.

[13] Ms Sixtus contended that the claim was an appropriate one to bring. She relied
on the observations of Elias CJ in Attorney-General v Taylor that that there did not
need to be consequences for legal interests before a Court could make a declaration.3
She said that the applicants’ legal strategy initially focused on a declaration that would
“consolidate” legislation passed in 1865 and 1908, and that after that initial step the
other aspects of the claim could be addressed. Those other aspects included challenge
to a number of Government initiatives which, she argued, were being introduced in a
way that amounted to psychological “water boarding”. She confirmed that amongst
those complaints were those listed as grievances in her earlier memorandum which,
by way of summary, included complaints about:

(a) The Marsden Point Refinery.

(b) The entry of the Government into the United Nations Declarations of
Rights of Indigenous People.

(c) The Government’s Three Waters proposals.

(d) Certain allegations made by Judith Collins.

(e) What is described as “50 per cent unelected Maori Parliament”.

3 Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 at [95].

 (f) Allegations concerning the New Zealand health system and health
department, and the dividing up of it in accordance with race.

(g) The establishment of two Mormon temples which was endangering the
safety of the protestant religion.

(h) The teaching of false history education and non-heterosexual

promotion to children.

(i) The taking of farmland and strict regulation of natural areas under the
Resource Management Act.

(j) The disarming of protestants of their firearms.

(k) The Terrorism Act 2020.

(l) The Sustainable development goals as required by the United Nations.

(m) An allegation concerning Lexis Nexis.

Analysis and decision

[14] I accept Ms Sixtus’ point that the jurisdiction of the Court to make declarations
is a broad one, and that it is not necessary for there to be legal consequences before
declarations can be made.4 But there must nevertheless be some issue about a matter
of law, to which the declaration is directed, that is identified in the pleadings before
the Court.

[15] Here there are two interrelated, and fundamental, problems with the pleaded
claim which I do not accept can be remedied by amendment.

[16] The first point is that the allegations are unintelligible. It is not possible from
a reading of the statement of claim to understand what allegations are being advanced
in relation to particular rights or other legal matters, and what it is that has led to a
relevant issue about them. The allegations in the statement of claim are very broad,

4 See Mandic v The Cornwall Park Trust Board [2011] NZSC 135, [2012] 2 NZLR 194 at [5]–[9].
and it does not identify particular disagreements or uncertainties in relation to matters
of law that would be capable of being the subject of a declaration. The applicants’
memorandum responding to the criticisms, and the oral arguments advanced by
Ms Sixtus, did not make the position any clearer. I accept Mr Gunn’s point that the
pleaded claim is unintelligible. That is essentially the same conclusion that Palmer J
reached in relation to the related proceeding in Moore v Faafoi which were struck out
on 18 May under r 5.35B.

[17] Secondly, to the extent that it is possible to discern the allegations made, many
are not within the jurisdiction of the Court. The matters listed as grievances referred
to in paragraph [13] above involve matters of policy, and some involve criticisms of
Parliamentary enactments. That is so in relation to the first declaration that Ms Sixtus
advised was being sought which seeks a “consolidation” of two ancient statutes. This
is referred to in the first declaration sought in the statement of claim. Such matters are
not within the jurisdiction of the Court. The grievances involve political issues, and
debates on matters of policy. The Court is concerned with questions of law, and to
resolving genuine disagreements or uncertainties on the meaning and effect of
legislation or other legal instruments or questions. It does not have jurisdiction to
determine questions of policy.

[18] These deficiencies are not capable of being remedied by amendment. The
deficiencies are too fundamental. An opportunity was earlier afforded to review the
pleading, but Ms Sixtus had made it clear that the key allegations currently outlined
are the basis of the claims. I see no prospect of the deficiencies being remedied.

[19] For these reasons the proceedings are struck out as an abuse of process.

[20] The respondents would normally be entitled to costs, and it is appropriate for
parties to proposed litigation to understand that there are usually costs consequences
of bringing proceedings that are found to be an abuse of process. If the respondents
seek costs from the applicants counsel may file a memorandum within 10 working
days, which can be responded to by the applicants within a further 10 working days.

Cooke J