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Court of Appeal of New Zealand |
Last Updated: 3 June 2020
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BETWEEN |
THI LAN ANH TRAN TRADING AS HANOI VIETNAM CAFÉ Applicant |
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AND |
CITY RAIL LINK LIMITED Respondent |
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Court: |
Courtney and Goddard JJ |
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Counsel: |
Applicant in person J A Gregory and T M Crawford for Respondent |
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Judgment: (On the papers) |
20 May 2020 at 3.30 pm |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
The application for leave to appeal
[1] The applicant seeks leave to appeal to this Court from a decision of the High Court,[1] which dismissed her appeal from a decision of the Environment Court.[2]
[2] The proceedings in the Courts below related to an aspect of the Auckland City Rail Link Project (CRL Project). The CRL Project is a major infrastructure project currently being undertaken in Auckland. It is authorised in the Auckland Unitary Plan by six related designations under the Resource Management Act 1991 (RMA). Those designations (each of which relate to a different part or aspect of the CRL Project) were confirmed by the Environment Court in November 2015. Designation 4 provides for the Karangahape Road Station.
[3] On 30 April 2018 City Rail Link Ltd (CRL Ltd), the entity which currently has responsibility for the CRL Project, issued a decision making certain alterations to Designation 4 (the Alteration).
[4] The applicant operates a café on Pitt Street known as the “Hanoi Village Café”. Her business is in the area covered by Designation 4. The applicant did not oppose the original making of Designation 4. But she did oppose the alterations to Designation 4 that were incorporated in the Alteration.
[5] The applicant challenged CRL Ltd’s decision to make the Alteration in the Environment Court. That Court dismissed her appeal and confirmed the Alteration (with certain modifications, the origins of which are explained in the High Court judgment). The applicant appealed to the High Court. She represented herself before the High Court. On 25 October 2019 Katz J delivered a careful and thorough judgment in which she sought to identify and address the key issues raised in the applicant’s submissions.[3]
[6] The applicant’s application for leave to appeal to this Court is 22 pages long, with another 20 pages of annexures. It alleges 22 errors were made by the High Court in its judgment. In her application for leave to appeal to this Court the applicant says that the judgment she seeks is:[4]
- (a) to request the respondent to pay compensation for the effects, damage to our business due to the requiring authority actions failed to meet the requirements of RMA 1991 and CRL designation 1714 conditions dated 10 November 2015 in relation to the NoR dated 4 May 2017.
- (b) The High Court shall refund the security deposit of $740 I paid to the High Court
[7] The applicant filed three sets of submissions in support of her application, each 10 pages in length: a total of 30 pages in all. The submissions were accompanied by 16 appendices. The material she filed substantially exceeds the 10-page limit set by r 23 of the Court of Appeal (Civil) Rules 2005 for submissions on an application for leave to appeal.
[8] The application is opposed by CRL Ltd, which submits that the application:
- (a) is completely unfounded;
- (b) is vexatious;
- (c) raises no matters of general or public importance;
- (d) continues to raise matters beyond the jurisdiction of any of the previous decision-makers when considering a variation to a designation under the RMA; and
- (e) raises issues that, where comprehendible, have been thoroughly traversed by the lower Courts.
The test for leave to appeal
[9] The applicant seeks leave to appeal to this Court under s 308(1) of the RMA, which provides:
Subpart 8 of Part 6 of the Criminal Procedure Act 2011 applies as far as applicable with the necessary modifications to a decision of the High Court under section 299 as if the decision had been made under section 300 of that Act.
[10] Under sub-pt 8 of pt 6 of the Criminal Procedure Act 2011, the Court of Appeal must not give leave for a second appeal unless satisfied that:[5]
- (a) the appeal involves a matter of general or public importance; or
- (b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[11] An appeal to the High Court from a decision of the Environment Court is available only on questions of law.[6] It follows that the first limb of the test set out above will be satisfied only if the appeal involves a question of law of general or public importance.
Decision
[12] We have reviewed the extensive material filed by the applicant. We do not consider that this material identifies any questions of law capable of serious argument. The majority of the issues raised are not questions of law. To the extent that the application raises issues of law, they are not seriously arguable.
[13] The proposed appeal would not involve any matters of general or public importance. The issues raised have no wider significance beyond the specific Alteration about which the applicant has concerns.
[14] None of the matters raised by the applicant suggests that there may have been a miscarriage of justice in the High Court.
[15] Moreover the relief the applicant seeks on appeal — compensation for losses suffered by her business — is not relief that could have been awarded in the Environment Court. It was not therefore available on appeal in the High Court, and would not be available on a second appeal to this Court. The decisions by the Courts below not to award compensation cannot amount to an error of law or a miscarriage of justice, in circumstances where those Courts had no power to award compensation.
[16] In these circumstances it is clear that leave to appeal to this Court should be declined. We do not propose to analyse in detail the 22 errors alleged by the applicant. The applicant has already had the benefit of careful and thorough judgments delivered by the Environment Court and the High Court. A leave filter for second appeals reflects the public interest in finality, absent a good reason to entertain a second appeal. The leave filter is also intended to ensure the efficient use of appellate court resources, in the interests of all parties to appeals before those courts. It would be inconsistent with those objectives for us to deliver a lengthy judgment that addresses each of the 22 alleged errors, most of which reflect misunderstandings on the applicant’s part about the relevant legislation and about the court process.
[17] We therefore decline leave to appeal to this Court.
Costs
[18] The respondent seeks costs. There is no reason why costs should not follow the event in the ordinary way. The respondent is a publicly funded entity. It should be able to recoup some of the cost of responding, for a third time, to the issues raised by the applicant about the Alteration. We therefore award costs to the respondent for preparation of its submissions in opposition to the application for leave to appeal for a standard appeal on a band A basis. The respondent is entitled to costs for 0.4 of a day at the current daily rate for a category 2 proceeding in the High Court ($2,390), which results in a costs award of $956.
Solicitors:
Bell Gully,
Auckland for Respondent
[1] Thi Lan Anh Tran v City Rail Link Ltd [2019] NZHC 2739 [High Court judgment].
[2] Hanoi Vietnam Café v City Rail Link Ltd [2019] NZEnvC 74 [Environment Court judgment].
[3] High Court judgment, above n 1, at [30].
[4] Applicant’s application for leave to appeal at [43].
[5] Section 303(2).
[6] Resource Management Act 1991, s 299.
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URL: http://www.nzlii.org/nz/cases/NZCA/2020/174.html