High Court Rules, rules 5.35A and 5.35B – power to strike out proceeding before service – history of rules and process leading to their promulgation – criteria for being satisfied that the proceeding is plainly an abuse of the process of the court.

Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63

Te Wakaminenga o Nga Hapu ki Waitangi filed proceedings in the High Court against the Waitangi National Trust Board. The proceedings were prepared and filed by two individual representatives of the plaintiff. The statement of claim was non-compliant with the High Court Rules in numerous respects.

In broad terms, the proceedings related to nine deeds of sale for land at Waitangi between various Maori chiefs and James Busby from 1834 to 1839.  It was asserted that these deeds were unlawful and the relief sought was the return of the lands now held by the Waitangi National Trust Board (defendant) to the plaintiff.

The Registrar of the High Court in Whangarei formed the view that the proceeding was plainly an abuse of process and referred it to a judge, pursuant to rule 5.35A of the High Court Rules.

The judge directed that the proceeding be struck out as an abuse of process pursuant to rule 5.35B. The plaintiff appealed to the Court of Appeal.

Statutory interpretation – rules 5.35A and 5.35B High Court Rules – history of the rules – intention of rules to address lack of clarity and process around exercise of inherent power –  difference between plainly abusive proceedings (rule 5.35B power to strike out at filing stage) and those which disclose no reasonably arguable cause of action (rule 15.1(a) power to strike out at later stage) – what is an abuse of process? – when can power under rule 5.35B be exercised? – fundamental right of access to the courts.

Held: Te Wakaminenga o Nga Hapu ki Waitangi’s appeal is allowed.  The High Court decision is set aside and the proceeding is re-instated.  Whilst the claim may later be shown to be untenable (it was unclear whether the appellant was a legal entity capable of bringing proceedings or whether the claim may be defeated by indefeasibility of title), it is not for the court at the preliminary pre-service stage to take it upon itself to form the view that a claim discloses no reasonable course of action or is untenable. There was no reasonable basis to suggest the appellant was seeking to  use the processes of the court for some ulterior or improper purpose.  The judge was accordingly wrong to regard the proceedings as plainly abusive of the process of the court.

Te Wakaminenga O Nga Hapu Ki Waitangi v Waitangi National Trust Board