Baker v Whakatane District Council [2021] NZCA 495 (29 September 2021)

Last Updated: 6 October 2021

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

CA90/2021 [2021] NZCA 495

	BETWEEN	JOSEPH EDWARD BAKER Applicant
	AND	WHAKATANE DISTRICT COUNCIL Respondent

Court:	Goddard, Thomas and Wylie JJ
Counsel:	Applicant in person L M Ebbers for Respondent
Judgment: (On the papers)	29 September 2021 at 11.00 am

JUDGMENT OF THE COURT

1. The application for leave to appeal is declined.
2. There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Background

• [1] Mr Baker is the owner of two dogs: a bull terrier named Ice, and a bull terrier named Khaos. On 30 November 2019 these dogs got out of the property where Mr Baker and his father live, and attacked another dog.

District Court decision

• [2] Mr Baker was convicted in the District Court on two charges under s 57(2) of the Dog Control Act 1996.^[1] Judge MacDonald ordered that Mr Baker pay the veterinarian fees for the injured dog of $344.40 with Court costs of $130.00 on each charge. Mr Baker was also ordered to make an emotional harm reparation payment of $250.00 to the owner of the dog that was attacked, and to pay the sum of $500.00 toward the costs of prosecution.^[2]
• [3] Section 57(3) of the Dog Control Act required the District Court Judge to make an order for the destruction of the dogs unless he was satisfied that “the circumstances of the offence were exceptional and do not warrant destruction of the [dogs]”. The Judge was not satisfied that there were any exceptional circumstances for the purposes of s 57(3). The Judge made orders for destruction of both dogs.^[3]

High Court appeal

• [4] Mr Baker appealed to the High Court.^[4]
• [5] Mr Baker filed a number of documents in the High Court which Venning J described as “convoluted, verbose, and in a number of instances, incomprehensible”.^[5] However the Judge carefully reviewed the notes of evidence and all the materials filed by Mr Baker. He was satisfied that the charges under s 57(2) of the Dog Control Act were established beyond reasonable doubt.^[6] He was also satisfied that there were no exceptional circumstances that would justify declining to make an order for the destruction of the dogs under s 57(3).^[7]
• [6] The appeal was therefore dismissed. The orders for destruction of the two dogs, and the monetary penalties imposed on Mr Baker, were confirmed.^[8]

Application for leave to appeal to this Court

• [7] Mr Baker filed a notice in this Court. It is not easy to follow. The notice names as respondents three employees of the Whakatane District Council. The notice says it relates to a claim of “trespass by way of debt, harm, extortion, blackmail, unlawful detainment and robbery”. The notice “requires” that all orders made against the property of Mr Baker and his father be discharged, and claims compensation in excess of USD 1,000,000.00.
• [8] We will treat the notice as an application for leave to appeal to this Court under s 237 of the Criminal Procedure Act 2011 (CPA), as that is the only form of application or proceeding that Mr Baker can file in this Court in relation to the criminal proceedings that were brought against him, and the orders made for destruction of his dogs. It is not possible to make a claim for compensation in this Court in the context of criminal proceedings. Indeed a claim for compensation can never be initiated in this Court, which only hears appeals.
• [9] Section 237 of the CPA provides:

237 Right of appeal against determination of first appeal court

(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(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.

• [10] The application for leave to appeal is opposed by the Whakatane District Council. The Council seeks costs under the Costs in Criminal Cases Act 1967 on the basis that the application filed by Mr Baker is frivolous and unsustainable.

Discussion

• [11] In addition to his original notice, Mr Baker has filed a number of other documents. The common theme in all of these documents is that Mr Baker considers that the Whakatane District Council, the police and the Courts had no lawful power to take action against Mr Baker, his father, or his property (the dogs).
• [12] Nothing in the papers filed by Mr Baker identifies any matter of general or public importance which would be raised by his appeal.
• [13] Nor is there any basis on which it could be argued that a miscarriage of justice may have occurred. Mr Baker’s arguments do not identify any basis on which his convictions, or the orders for destruction of the dogs, could be challenged in this Court.
• [14] It follows that the criteria in s 237 of the CPA are not met, and the application for leave to appeal to this Court must be dismissed.

Costs

• [15] Section 8(5) of the Costs in Criminal Cases Act provides that a court which determines an appeal may make an award of costs if the appeal “includes any frivolous or vexatious matter”. The amounts of costs that may be awarded under that Act are set out in the Costs in Criminal Cases Regulations 1987. The maximum amount that may be awarded in respect of an appeal against sentence is $130.00 for each half day or part half day in court.^[9]
• [16] Mr Baker’s application for leave to appeal could fairly be described as frivolous or vexatious. There was no proper basis for naming individuals as respondents: the Council should have been the only respondent. Nor was there any proper basis for making a claim for (very substantial) compensation. Nothing in the material filed was relevant to the correctness of the decisions of the Courts below.
• [17] However the Council’s opposition to the application for leave to appeal was capable of being expressed very briefly. The Council did not need to engage with the detail of the documents filed by Mr Baker. No hearing was required. In those circumstances, an award of costs is not justified.

Result

• [18] The application for leave to appeal is declined.
• [19] There is no order as to costs.

Solicitors:
Hamertons, Whakatane for Respondent

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^[1] Whakatane District Council v Baker [2020] NZDC 24879.

^[2] Whakatane District Council v Baker [2020] NZDC 24882 at [12]–[14].

^[3] At [15].

^[4] Baker v Whakatane District Council [2021] NZHC 66.

^[5] At [11].

^[6] At [16].

^[7] At [29].

^[8] At [30]–[31].

^[9] Costs in Criminal Cases Regulations 1987, sch 1, pt 1, subpt C(2).