In Loftus v Auckland Council [2020] NZHC 416 - reminiscent of Bauskis noted elsewhere in this blog - the NZ High Court refers to Niwa v Commissioner of Inland Revenue [2019] NZHC 853 and states
What happened?
[1] Mr Stephen Loftus does not acknowledge that is his name, though he understands that is how New Zealand’s legal system identifies him. He prefers to be known as “Stephen: loftus”. Neither does he acknowledge that he is the person charged under that name with owning a dog, “Ringo”, who attacked an eight year old boy contrary to s 57(2) of the Dog Control Act 1996. He insists the charging notice was not valid because it did not have a proper court seal on it.
[2] His arguments about this, and associated arguments, were carefully dealt with by Judge A M Wharepouri in the Manukau District Court who convicted and sentenced him. Unsurprisingly, “Stephen: loftus” did not succeed in his arguments. He also says the sentencing decision was invalid because the Judge referred to him as “you” and he is not “you”.
Application for judicial review
[3] Now “Stephen: loftus” seeks judicial review of the Judge’s decision. He says the legal process used was a not a lawful process. His statement of claim is a mish-mash of pseudo-legal phrases that have no meaning in New Zealand law. Some of those phrases correspond to labels of grounds of judicial review. But there are no details of them.
[4] The statement of claim closely resembles, in format and lack of substance, another statement of claim I struck out recently for abuse of process. There are also similarities to what one Canadian Judge has called “Organized Pseudolegal Commercial Argument” (OPCA). Ellis J recently considered the issue of OPCA litigants, and noted: At a general level, it seems to me that it will inevitably be an abuse of process for a litigant to attempt to employ OPCA concepts in seeking to avoid or defeat any state, regulatory, contract, family or other obligations recognised by law. ...
[7] I consider that the statement of claim discloses no reasonably arguable cause of action, hearing it is likely to cause prejudice and delay to the respondent and the court system and it is an abuse of the process of the court. I strike out the statement of claim accordingly, under the common law of New Zealand, the Court’s inherent jurisdiction, r 15.1 and/or r 5.35B of the High Court Rules 2016.
Loftus had no more luck with Loftus v Rewi [2020] NZCA 297 . There's no indication of what happened to the dog.
In Meenken v Family Court at Masterton [2017] NZHC 2103, cited in Australian sovereign citizen judgments noted elsewhere in this blog, the NZ High Court considered Meenken’s pseudo legal claims.
The Court states
Mr Meenken claims the Family Court wrongly failed to exercise its statutory duty to consider the request for leave to appeal.
[3] The Family Court has applied to strike out the proceedings on the grounds that it is an abuse of process, as Mr Meenken has no standing to bring this proceeding, because he is bankrupt. Through these proceedings, the Family Court says, Mr Meenken is further attempting to transfer his “estate” (by which he means his legal personality) to the Crown, in order to avoid his legal obligations.
Factual background
[4] Mr Meenken has been attempting to transfer his estate to the Crown since 2010. He was first made bankrupt in 2012. The succession of proceedings is based on various arguments, including:
(a) there is a distinction between a legal and natural person, in that legal personhood is a form of property created by the Crown by issuing a birth certificate, which is then held on trust by the natural person;
(b) Mr Meenken’s legal personality was “created” by the Kingdom of the Netherlands (by issuing a Dutch birth certificate), which was then “imported” into New Zealand by his parents;
(c) his actions in acquiring property and existing property rights led to him being identified with his legal personality, which he now regrets; and
(d) transferring his legal personality to the Crown will rid him of his debts and obligations.
[5] Mr Meenken has previously sought to avoid his tax obligations. In 2007 the Commissioner of Inland Revenue (the Commissioner) commenced proceedings against Mr Meenken seeking unpaid income tax for the 2003 and 2004 tax years. Mr Meenken commenced review proceedings challenging the District Court’s jurisdiction to hear that claim, which were dismissed by Dobson J.3
[6] On the application of the Commissioner, Mr Meenken was adjudicated bankrupt on 20 February 2012. Mr Meenken was again adjudicated bankrupt on 14 December 2016, and has not been discharged from either bankruptcy. ...
[8] In November 2014, Mr Meenken filed a claim in the High Court seeking to transfer his entire estate to the Crown. He then discontinued the claim and a costs order was made.
[9] Following discontinuance, Mr Meenken attempted to bring applications in the Masterton Family Court under the PPPR Act for property orders. His application was based on the competence of bankrupts. In June 2016, Judge Grace held that the medical evidence demonstrated Mr Meenken was competent, and that a full affidavit should be filed setting out what Mr Meenken sought to achieve with the application. Mr Meenken did so, setting out that he wanted to appoint either the Public Trustee or himself as the property manager under the PPPR Act, to transfer his estate to the Crown.
[10] In August 2015, the Family Court dismissed Mr Meenken’s application on the grounds that he was competent and therefore was not eligible for any orders under the PPPR Act. In September 2015, the Family Court rejected Mr Meenken’s second application. In October 2015, the Court dismissed a further application for the same reasons. Judge Moss ordered that such applications where Mr Meenken was the applicant and the subject person, were not to be accepted for filing in the future. A fourth application was not accepted for filing in June 2016.
[11] In August 2016, Williams J rejected a further application from Mr Meenken for filing. The Judge concluded that this was another application to transfer his “estate” to the Crown and was barred under r 15.24 of the High Court Rules 2016, as it substantively replicated his 2014 application to the Court. ...
Respondent’s application
[14] The Family Court submits Mr Meenken has no standing to bring this proceeding due to his bankruptcy. The core proceeding in the Family Court relates entirely to Mr Meenken’s property, as he is seeking to make an application in the Court for property orders under the PPPR Act in relation to his own property or “estate”. However, this property is vested in the Official Assignee, who is the only person that can bring proceedings relating to the administration of Mr Meenken’s property. The Assignee has not given permission to bring this proceeding and does not wish to continue it. Accordingly, Mr Meenken has no standing to bring this application for judicial review and it should be dismissed. ...
[16] Finally, the Family Court submits that this proceeding is an abuse of process and should be struck out. In his five applications to the Family Court under the PPPR Act, as well as his two High Court applications, Mr Meenken has advanced a “double/split person” concept that his physical or natural person is distinct from a “corporate entity” created by the state. All of these applications have been dismissed, discontinued or not accepted for filing. Mr Meenken admits that the recent application dismissed by Williams J was effectively a resurrection of an earlier application.
[17] Mr Meenken’s purpose in bringing these proceedings is to transfer his legal personality to the Crown, which the Family Court says is impossible and his “double/split person” concept has no legal effect. The Court submits this type of argument is an abusive tactic adopted by litigants seeking to avoid legal obligations and it is an abuse of process for Mr Meenken to continue to litigate this issue. The Family Court seeks that the proceedings should be struck out as Mr Meenken is continuing to litigate a matter already determined by this Court and the Family Court.
[18] The Family Court also seeks a limited order restricting Mr Meenken from commencing any further proceedings concerning this “double/split person” concept under s 166 of the Senior Courts Act 2016, because Mr Meenken has commenced at least two or more proceedings about the same matter, over the past three years. They were without merit.
Mr Meenken’s opposition
[19] Mr Meenken opposes the respondent’s strike-out application. Mr Meenken says that the Family Court has not replied to his affidavit denying the existence of any valid act of bankruptcy, establishing the appointment of a lawful Official Assignee. He says there is no evidence that the appointment of the Assignee or his bankruptcy was lawful. ...
Restriction on commencing or continuing proceedings
[27] Under the Senior Courts Act 2016, a Judge of the High Court has the power to restrict a litigant from commencing further proceedings. The following provisions contain the types of order that can be made and the grounds for doing so.
166 Judge may make order restricting commencement or continuation of proceeding (1) A Judge of the High Court may make an order restricting a person from commencing or continuing a civil proceeding. (2) The order may have— (a) a limited effect (a limited order); or (b) an extended effect (an extended order); or (c) a general effect (a general order). (3) A limited order restrains a party from commencing or continuing civil proceedings on a particular matter in a senior court, another court, or a tribunal. (4) An extended order restrains a party from commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal. (5) A general order restrains a party from commencing or continuing civil proceedings in a senior court, another court, or a tribunal. (6) Nothing in this section limits the court’s inherent power to control its own proceedings.
167 Grounds for making section 166 order (1) A Judge may make a limited order under section 166 if, in civil proceedings about the same matter in any court or tribunal, the Judge considers that at least 2 or more of the proceedings are or were totally without merit. (2) A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit. (3) A Judge may make a general order if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit. (4) In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations. (5) The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons. (6) For the purpose of this section and sections 168 and 169, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.
[28] The standard of “totally without merit” is not defined in the Act. The cases establish that the question of whether a litigant has commenced proceedings that are totally without merit is to be determined objectively, in relation to its nature and substance, and should not be considered in relation to the litigant’s own beliefs or motives. In its Departmental Report to the Justice and Electoral Committee, the Ministry of Justice identified the following factors as relevant to determining whether a proceeding is totally without merit: (a) There are no prospects whatever for success. (b) Exposure of defendants to inconvenience, harassment and expense out of all proportion to the gain a plaintiff is likely to receive. (c) Actions are brought “at the drop of a hat” despite the lack of merit. (d) No regard is paid to merit, proportionality or cost by a litigant. (e) The statement of claim or defence discloses no reasonable grounds of bringing or defending the claim. (f) The statement of claim is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceeding. (g) There has been failure to comply with a rule, practice direction or court order.
[29] The Court may make an order without an application from a party. Further, an order may be made for up to three years, or up to five years in exceptional circumstances. If such an order is granted, a party is prevented from commencing or continuing any proceeding of the type specified in the order without first obtaining leave of the High Court. ...
Discussion
[33] I consider that this proceeding should be struck out for the following reasons: (1) Mr Meenken is an undischarged bankrupt and has no standing to bring this proceeding. (2) Mr Meenken’s property has vested in the Official Assignee. There is no “estate” to be made the subject of a PPPR Act application. (3) The “double/split person” underpinning Mr Meenken’s attempt to transfer his legal personality to the Crown has no legal basis.
No standing
[34] Mr Meenken was adjudicated bankrupt on 20 February 2012 and is yet to be discharged from that bankruptcy. He was adjudicated bankrupt again on 14 September 2016 and remains an undischarged bankrupt under that bankruptcy as well. The Official Assignee has sworn an affidavit confirming Mr Meenken’s respective bankruptcies and has disposed that she gave no consent to Mr Meenken bringing this proceeding. Nor has the Assignee disclaimed the right to bring this proceeding under s 117 of the Insolvency Act.
[35] The Assignee has reviewed Mr Meenken’s statement of claim and to the extent that the claim seeks to vest “property” in the Assignee under s 101 of the Section 104 specifies that all property held by the bankrupt in trust for another person does not vest in the Assignee. Insolvency Act, she states clearly that she does not intend to proceed with that course of action and would seek to discontinue it.
[36] Applications for lack of standing due to bankruptcy have previously been dismissed in this Court.25 Without the Official Assignee’s consent to commence these proceedings, Mr Meenken has no standing to bring them.
[37] I record for completeness that Mr Meenken has raised in his affidavit and in this hearing a number of issues contesting whether he was validly made bankrupt. He also challenged Ms Basher’s appointment as an Official Assignee and contended that no lawful decisions have been made by her as an Official Assignee. I accept the Crown’s submission that if Mr Meenken seeks to challenge the Assignee’s decisions, he has a remedy in reviewing the Assignee’s decisions under s 226(1) of the Insolvency Act. He could also apply to this Court to discharge his bankruptcy. However, the validity of his bankruptcy cannot be addressed in these proceedings, which are collateral to those challenges. It was inevitable that this proceeding would fail, for lack of Mr Meenken’s standing to bring it.
Mr Meenken’s “estate”
[38] Mr Meenken’s application to the Family Court seeks the appointment of a property manager for all of his “property” under the PPPR Act. Although Mr Meenken’s property has already vested in the Assignee through bankruptcy, his application seeks to dispose of the remaining item of Mr Meenken’s property, which he calls his “estate”, consisting of his legal personality. As this Court has already observed, Mr Meenken has been attempting to transfer his estate to the Crown since 2010. His lengthy campaign to transfer his estate appears to be an attempt to avoid his debts.
[39] Mr Meenken’s applications have been unsuccessful, because the Family Court decisions have found him to be competent. Without the threshold requirement under s 24 PPPR Act of lack of competence, the Family Court has held there is no jurisdiction to consider his application. Judge Moss records that the applicant and the reporting medical practitioner agree that Mr Meenken understands the nature and foresees the consequences of his decisions. In those applications, Mr Meenken, as the applicant, concedes he is the same person as the proposed subject. His various applications were accordingly dismissed.
[40] Mr Meenken’s claim that he has property in his legal personality or “de son tort” which is available to everyone is not recognised in law. Mr Meenken’s property has been vested in the Official Assignee and under the definition of “property”, any right of action relating to it vests in the Official Assignee. There is nothing for a property manager to manage under the PPPR Act, even if Mr Meenken was able to satisfy the jurisdictional test of being incompetent.
[41] I record again for completeness that Mr Meenken sought a ruling on the PPPR Act definitions of “competence” for property applications and lack of “capacity” for personal ones. There have already been determinations that there is no real distinction between “competence” and “capacity” under the Act and it is not appropriate in this case, where the concepts are not in issue, to deliberate or review other decisions.
[42] Again, Mr Meenken’s underlying application to appoint a property manager under the PPPR Act is so untenable that it cannot succeed. Mr Meenken is competent and there is no property to transfer.
Double/split person concept
[43] Mr Meenken’s applications in the Family Court, seeking the appointment of a property manager for his own property, arises from the distinction he makes between the legal person and a natural person. The legal person is a form of property created by the Crown by issuing a birth certificate, which is then held on trust by the natural person. This has been set out in [4] above. On the basis of his “split person” concept, Mr Meenken filed his applications in the Family Court with Mr Meenken being both the applicant and the subject person. As the Court noted, where an applicant and subject person are the same person, the application is not in proper form because the PPPR Act requires a successful applicant to be competent and a subject person cannot be.
[44] The type of argument advanced by Mr Meenken as a “double/split person” has been described by the Alberta Court of Queen’s Bench as the Organised Pseudolegal Commercial Arguments (OPCA). In Meads v Meads, the Court undertook an exhaustive examination of the arguments and strategies adopted by OPCA litigants, whom were described by the Court as a “category of vexatious litigant”.
[45] The Alberta Court described the double/split person concept as a duality of a “physical person”, which is distinct from a “corporate entity” or a “legal fiction” created by the State. The Court said:
[417] A strange but common OPCA concept is that an individual can somehow exist in two separate but related states. This confusing concept is expressed in many different ways. The ‘physical person’ is one aspect of the duality, the other is a non-corporeal aspect that has many names, such as a “strawman”, a “corporation”, a “corporate entity”, a “corporate fiction”, a “dead corporation” ... an “estate”, a “legal person”, a “legal fiction” ... or a “juristic person”.
[46] The Court observed that many OPCA litigants refer to this duality by using lower case for the physical person and upper case for the corporate entity. The duality is used to avoid various legal obligations, with a common underlying theme, that the OPCA litigant is not the person before the Court, or is not subject to the Court’s jurisdiction. If a person therefore wishes to add a legal “‘layer’ to themselves” then adopting a corporation and protesting the Court’s authority or jurisdiction over the person, is the method employed to disclaim any liability or responsibility.
[47] In New Zealand, in the recent case of Martin v Chief Executive of the Department of Corrections, a remand prisoner sought habeas corpus, because he was not subject to New Zealand’s laws. He described himself as the representative of an “infant deceased estate” and filed a copy of his birth certificate along with his application. Mr Martin described himself as a “freeman of the land” not subject to any act of Parliament. Toogood J dismissed Mr Martin’s application reinforcing that “[i]ncomprehensible statements about birthright and being a natural person not susceptible to the laws of this country are regularly and properly rejected by the Courts”.
[48] Equally here, such “double/split personality” concepts and arguments cannot prevail. Mr Meenken has made five such unsuccessful applications, with the fifth application not being accepted for filing in the Family Court. The applications were unsuccessful and Mr Meenken’s persistence in continuing to file them and review the dismissals of his arguments, is both an abuse of process and is vexatious. The dual personality concept has no prospect of success. For the reasons set out above, Mr Meenken’s judicial review is dismissed.
A restriction order
[49] Mr Meenken has filed five applications in the Family Court, and two in the High Court, all of which have been unsuccessful. They have been respectively dismissed, discontinued (in one instance) or not accepted for filing.
[50] The Family Court has issued several minutes explaining to Mr Meenken the reason his applications cannot be successful, on competence grounds under the PPPR Act. The High Court declined to overturn the Registrar’s decision to reject Mr Meenken’s fourth Family Court application for filing. Williams J held that Mr Meenken’s application should not be accepted if the following conditions were met:. (a) it arises out of the same or substantially the same facts; (b) it is against the same defendant; and (c) the applicant has not paid any costs in respect of the discontinuation.
[51] Mr Meenken continued in his attempt to file his fifth Family Court application, unsuccessfully appealing from that decision. He then sought leave to appeal from the Family Court, also unsuccessfully, before issuing these proceedings.
[52] Under the Senior Courts Act, a High Court Judge may make an order restricting a person from commencing or continuing a civil proceeding about the same matter, where two or more of the proceedings are, or were, totally without merit.
[53] Mr Meenken’s applications have engaged the resources of the Family Court, the High Court and more recently, at my direction, the Crown Law Office.
[54] I consider the time has been reached that a limited order restricting Mr Meenken from commencing any further proceedings concerning his “double/split person” concept should be made. The criteria under s 167(1) have been met, namely there are more than two proceedings, that are or were totally without merit.
[55] Mr Meenken will be restricted from commencing or continuing a proceeding, which engages the “double/split person” concept or seeks to transfer Mr Meenken’s “estate” to the Crown for three years.
In Smith v Chief Executive of the Department of Corrections [2019] NZCA 362 the Court of Appeal endorsed the first instance characterisation of Smith's application as “gibberish”, with acceptance and action being "an abuse of the process of the Court”.
The Court refers to Smith's “identity” argument.
Although this argument is not easy to comprehend, its essence appears to be that the warrants were both for the detention of Geoffrey Smith, but the person detained, and the applicant to the High Court on both the successive occasions, was not Mr Smith but rather “S-I-R-Crown; 1953150853, in body, Sovereign/Crown/Living Man”.
... courts have struggled to elucidate these arguments, they have been uniformly dismissed. ...
Mr Smith confirmed he wished again to raise the “identity” issue. He told us “I am S-I-R-Crown: 1953150853. I am not Geoffrey Martin Smith ”. But Mr Smith told us he also sought to challenge the validity of the warrant pursuant to which he is currently imprisoned. He embarked on an outline of the basis on which he would seek to do this. We stopped Mr Smith because the grounds he was outlining, if they do provide a basis for seeking a writ of habeas corpus, are properly addressed to the High Court at first instance, and were not a subject for this appeal.
[16] It was clear we could not deal with the respondent’s arguments without having copies of the documents considered by Toogood J and Brewer J respectively. As the respondent did not have them available in Court, we asked that they be provided to us. We now have them. Having considered these documents, our views are these. First, the substance of the affidavit filed by Mr Smith in support of the application for a writ of habeas corpus dealt with by Toogood J is dual identity. Like the Judge, we confess to not understanding the content of the affidavit, but its tenor emerges from these two paragraphs:
The Birth Certificate being indicia of a Corporation/transmitting-utility or other creature of commerce trading in the public while remaining undischarged has through its Guardians, Officers, Administrators Agents or assigns by mischievous, deceitful, obscure and forceful methods induced the Petitioner to become security for the commercial activities carried on its name; ... ... That the attached Authenticated Birth Certificate shows the corporation trading as Geoffrey Martin SMITH ; ... ...
[17] Second, dual identity is also the subject matter of the document considered by Brewer J. Again, we share the Judge’s difficulty in understanding this document. But the following parts of it indicate its tenor. In the intituling, the following:
Between ;S-I-R-Crown; 1953150853, in body,
Sovereign/Crown/Living Man
And Geoffrey Martin Smith
Legal Person/Company, Trademark, Copyright,
Securitised
And in the body of the document the following:
Judge Cooper has ruled identification, contract between the living and the person, contract between the living and the Court to exercise its jurisdiction are required and have not been produced.
The New Zealand Bill of Rights Act 1990, Habeas Corpus Act 2001, The Criminal Proceedings Act define the two separate identities being the legal person and the Sovereign/Crown/Living People.
Habeas Corpus Act 10(c) required the Registrar to communicate with S-I-R-Crown 1953150853 in body as to the time and the place of the Hearing and as to what proceeding is taking place within 3 days of this document being filed.
In Martin v Chief Executive of the Department of Corrections [2017] NZHC 3294 - one of several judgments regarding unsuccessful invocation of habeas corpus by an inmate - the Court comments
Mr Martin’s written papers are not easy to follow. Nor were his oral arguments. As I understand it, he is essentially asserting a sovereignty-based argument. He says that he has withdrawn his consent to being governed, and that the laws of New Zealand no longer apply to him. He therefore argues that the Warrant of Commitment under which he is currently held in custody at the Northland Region Corrections Facility, is no longer authority for his lawful detention.
Clearly this argument is without merit. The Courts have consistently held that challenges to the sovereignty of Parliament, and the validity of acts of Parliament (whether in the context of Māori sovereignty arguments or any other challenge to the sovereignty of the New Zealand Parliament), cannot succeed.
In Martin v Chief Executive of the Department of Corrections [2016] NZHC 2500 the judgment states
[6] The essence of Mr Martin’s application is that, although according to his birth certificate and other documents, his full name is Robin Dion Leslie Martin, the name under which he has been charged is Robin Leslie Martin. He says that the omission of one of his middle names “Dion” provides a proper basis for his allegation that he has been unlawfully imprisoned.
[7] In support of that application he has filed, this morning, a further document intituled “Notice of Understanding and Intent and Claim of Right” in which he claims that he is a “natural man created by God almighty”. He summarises that submission this morning in terms that he is not a person as such although he “has a person”.
