Mawhinney v Auckland Council [2020] NZCA 26 (24 February 2020)

Last Updated: 3 March 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA132/2019 [2020] NZCA 26

	BETWEEN	PETER WILLIAM MAWHINNEY Appellant
	AND	AUCKLAND COUNCIL Respondent

Court:	Courtney and Collins JJ
Counsel:	Appellant in Person L M Van and O J Towle for Respondent
Judgment: (On the papers)	24 February 2020 at 3 pm

JUDGMENT OF THE COURT

The application to extend time for filing the case on appeal and seeking a hearing date is granted.
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REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] For some 25 years Mr Mawhinney has been engaged in litigation with the Auckland Council over the development of land in Waitakere, Auckland. In February 2019 Hinton J made an extended order under s 166(2) of the Senior Courts Act 2016 (the Act) restraining Mr Mawhinney from commencing or continuing civil proceedings relating to the subject land.^[1] Mr Mawhinney filed a notice of appeal but failed to seek a hearing date with the result that his appeal has been deemed abandoned under r 43(1) of the Court of Appeal (Civil) Rules 2005 (the Rules).
[2] Mr Mawhinney has applied under r 43(2) of the Rules for an extension of time to file the case on appeal and seek a hearing date. The Council opposes the application.

Background

[3] The threshold for making the extended order was that at least two of the proceedings previously brought by Mr Mawhinney were “totally without merit.^[2] Hinton J found that the threshold was made out.^[3] Her Honour also found that Mr Mawhinney’s conduct in previous proceedings could fairly be viewed as vexatious in terms of the nature of his pleadings and submissions and the allegations made (including malice by Council officers).^[4]
[4] The High Court decision was delivered on 28 February 2019 and Mr Mawhinney filed his notice of appeal on 29 March 2019, one day out of time. He was granted an extension of time to overcome that minor non-compliance.^[5] The notice of appeal asserts error by the Judge, including failing to take into account relevant matters, taking irrelevant matters into account, entering into the arena, bias and predetermination.^[6] He specifically challenges the Judge’s conclusion that at least two of the proceedings identified by the Council were totally without merit on the ground that the Judge had misinterpreted the phrase “totally without merit” in s 167 of the Act and, consequently, took a wrong approach to that issue.
[5] On 18 June 2019 the Registrar dispensed with security for costs. Mr Mawhinney, however, failed to apply for the allocation of a hearing date or to file the case on appeal within the requisite period.^[7] The Registrar refused an informal application for an extension of time under r 43(1B) of the Rules and the appeal was deemed abandoned on 2 July 2019.

The application for extension of time

[6] Mr Mawhinney brings his application on the grounds that (1) the appeal was filed within time (2) most of the three month period provided for under r 43 was taken up determining the security for costs waiver and (3) the High Court judgment rests on proceedings that date back to 1994 and material from the original proceedings that he considers will be needed has been difficult to locate.
[7] The Council says that the proposed appeal is generally without merit but, specifically, the key issue for determination would be the meaning of “totally without merit” in s 167 of the Act, which is a question of law. Further factual material is irrelevant. It asserts that if Mr Mawhinney were to succeed on appeal the matter should be remitted back to the High Court to consider whether further evidence is necessary.
[8] The overarching consideration in determining an application under r 43(2) is the interests of justice.^[8] The relevant factors were summarised in Almond v Read, namely: the length of the delay and its reasons; the parties’ conduct; any prejudice caused by the delay; the prospective merits of the appeal; and whether the appeal raises any issue of public importance.^[9]
[9] There has not been a lengthy delay in this case. Mr Mawhinney had sought an extension of time from the Registrar within the timeframe for compliance and filed his formal application for extension of time within the three-month period prescribed by r 43(3). He has been in contact with the Registry throughout.
[10] It is clear that the reason for the delay is Mr Mawhinney’s (incorrect) perception that material that was not before the High Court, could and should be adduced for the purposes of the appeal. This seems to stem from his view that an appeal by way of rehearing involves a rehearing of the matter with the benefit of further evidence. But an appeal by way of rehearing in this Court is conducted on the record of the evidence given in the Court below (unless leave is given to adduce fresh evidence).^[10] This error by a lay litigant is understandable though Mr Mawhinney has considerable experience and might have been expected to know this. Nevertheless, we proceed on the basis that his delay has been the result of a mistaken view of his obligations regarding the material to be included in the case on appeal. As to the Council’s point that if further material is considered relevant the matter should be remitted to the High Court, that will be a question for the Court when the appeal is heard, assuming leave is given.
[11] In terms of the parties’ conduct, the Council complains of Mr Mawhinney’s lack of cooperation and his refusal to act on advice proffered about the case on appeal. However, for the reasons already discussed we do not consider that Mr Mawhinney’s conduct, arising as it does from a mistaken view of his obligations, should be held against him.
[12] The Council claims that it will be prejudiced if the application is granted, including allowing Mr Mawhinney to file a case on appeal including new material. We accept that the Council continues to incur cost as a result of Mr Mawhinney’s misguided efforts to put evidence before this Court that was not before the High Court. However, Mr Mawhinney will now understand that this cannot be done without leave and the granting of further time to advance a genuine appeal does not in itself lead to identifiable prejudice to the Council.
[13] Finally, although the appeal does not raise issues of public importance a s 166 order does have significant implications for the litigant concerned.
[14] In these circumstances we are satisfied that the application should be granted. We therefore:

• (a) extend the time for Mr Mawhinney to apply for the allocation of a fixture date and file his case on appeal to 20 March 2020. It will be evident from our comments above that the case on appeal can only contain documents that were before the High Court; and
• (b) direct that Mr Mawhinney liaise with the Council to prepare and file the case on appeal.

[15] It is open to Mr Mawhinney to apply separately for leave to adduce further evidence for the purposes of the appeal.^[11] However, he should understand that leave to do so is not readily granted. Relevantly, parties are expected to produce all relevant evidence at first instance so further evidence will generally be allowed to be adduced only if it is fresh in the sense that it could not have been produced at trial.^[12]

Solicitors:
Anthony Harper, Auckland for Respondent

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^[1] Auckland Council v Mawhinney [2019] NZHC 299.

^[2] Senior Courts Act 2016, s 167(2).

^[3] Auckland Council v Mawhinney, above n 1, at [119].

^[4] At [124].

^[5] Court of Appeal (Civil) Rules 2005 r 5A(1)(c)(ii).

^[6] On 19 January 2020 Mr Mawhinney purported to file an extensive amended notice of appeal. We do not deal with the application on the basis of that document. It has no current status given that the appeal was, at that stage, deemed to have been abandoned. Further, the Council seeks to be heard in respect of it in the event that the current application is granted.

^[7] Court of Appeal (Civil) Rules 2005, r 43(1).

^[8] My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].

^[9] Almond v Read [2016] NZCA 147 at [9].

^[10] McGechan on Procedure (looseleaf ed, Thomson Reuters) at [CR47.01].

^[11] Court of Appeal (Civil) Rules 2005, r 45.

^[12] Erceg v Balenia Ltd [2008] NZCA 535 at [15].