Dokad Trustees Limited v Auckland Council [2021] NZCA 660 (7 December 2021)

Last Updated: 14 December 2021

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

CA Nil [2021] NZCA 660

	BETWEEN	DOKAD TRUSTEES LIMITED Applicant
	AND	AUCKLAND COUNCIL First Respondent ENVIRONMENT COURT Second Respondent

Judgment: (On the papers)

7 December 2021 at 10.00 am

JUDGMENT OF GODDARD J
(Review of Deputy Registrar’s decision)

The decisions of the Deputy Registrar to decline to accept for filing the notice of appeal, and the amendment to that notice, are set aside.
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REASONS

Background

• [1] Mr Peter Mawhinney (Mr Mawhinney) is subject to an order under s 166 of the Senior Courts Act 2016 (SCA). The order restrains him, in any capacity, from commencing or continuing any civil proceeding that relates to specified parcels of land in the Waitakere Ranges. The order was made on 28 February 2019, and will remain in force until 28 February 2022.^[1]
• [2] In March 2021, Dokad Trustees Ltd (Dokad) commenced a civil proceeding in the Environment Court seeking enforcement orders against Auckland Council. The application was signed by Mr Mawhinney for and on behalf of Dokad and supported by an affidavit from Mr Mawhinney.
• [3] Dokad was incorporated on 12 January 2021. It has one director, a Mr Anthony Mawhinney, and one shareholder, a Mr William Mawhinney.
• [4] Judge Kirkpatrick found that Dokad’s application related to the land specified in the s 166 order. He considered it was clear Mr Mawhinney was involved in commencing the application. He concluded Mr Mawhinney was restrained by the s 166 order from commencing the application. He directed the Registrar to take no further steps in relation to it.
• [5] Dokad and Mr Mawhinney then filed an application for judicial review in the High Court. They sought judicial review of Auckland Council’s acts and omissions in processing various applications and requests. They also sought judicial review of Judge Kirkpatrick’s decision.
• [6] Mr Mawhinney applied to the High Court under s 168(1) of the SCA for leave to commence or continue the judicial review proceeding, and Dokad’s application in the Environment Court for enforcement orders.
• [7] The High Court declined to grant leave to Mr Mawhinney (Leave judgment).^[2]
• [8] The High Court also held that the s 166 order against Mr Mawhinney extended to claims by entities controlled by Mr Mawhinney, and that Dokad is such an entity. It followed that Dokad could not commence either the proceeding in the Environment Court or the judicial review proceeding without Mr Mawhinney first obtaining leave to cause it to do so.^[3]
• [9] Because Mr Mawhinney had been declined leave to bring both those proceedings, Dokad could not commence either proceeding.^[4]
• [10] The High Court awarded costs of $4,166.63 against Mr Mawhinney and Dokad, jointly and severally, in connection with the unsuccessful leave application (Costs judgment).^[5]

Dokad seeks to appeal to this Court

• [11] On 27 October 2021 Dokad sought to file a notice of appeal in this Court against the Leave judgment. Dokad wishes to argue on appeal that Dokad did not require leave to bring proceedings: it is a separate legal person, it was not itself the subject of any order under s 166 of the SCA, and it was not a party to Mr Mawhinney’s leave application. So, Dokad says, its ability to bring proceedings is not affected by the s 166 order made against Mr Mawhinney, or by the refusal of leave for Mr Mawhinney to bring the relevant proceedings.
• [12] On 29 November 2021 Dokad sought to file an “Amendment to Notice of Appeal — Costs” (amendment notice), appealing against the Costs judgment.

Appeal not accepted for filing

• [13] The Deputy Registrar declined to accept the notice of appeal for filing, on the basis that this Court does not have jurisdiction to hear it. Section 169(6) of the SCA provides that the Judge’s determination of an application for leave is final. As the Deputy Registrar explained, this means that there is no right of appeal from a refusal of leave under s 169, and this Court has no jurisdiction to hear such an appeal.
• [14] The Deputy Registrar also declined to accept the amendment notice on the basis that because there was no appeal pathway in respect of the Leave judgment, there was also no right of appeal in respect of the Costs judgment.

Application for review of Deputy Registrar’s decision

• [15] Dokad has applied for review of the Deputy Registrar’s decisions in respect of the notice of appeal and the amendment notice.
• [16] Mr Mawhinney does not have a right of appeal from the High Court decision declining leave for him to commence or continue proceedings, by virtue of s 169(6) of the SCA. That is clear.
• [17] The reason there is no right of appeal from a decision declining leave under s 169 is that the purpose of ss 166–169 of the SCA is to prevent a repeat litigant from bringing proceedings that are entirely without merit. If an order has been made in respect of a person under s 166, they have applied for leave, and a Judge has found that the contemplated proceeding is without merit and should not be permitted to proceed, it would be inconsistent with the purpose of these provisions to permit the applicant to appeal from that decision.
• [18] But in the present case, the High Court judgment was not confined to an assessment of the merits of the proceedings and a decision on whether leave should be granted to Mr Mawhinney to pursue it. The High Court judgment also addressed the novel and practically important question of whether an entity such as Dokad, which is controlled by a person restrained by a s 166 order, is able to bring proceedings without leave being obtained by the restrained person to bring the proceedings through the relevant entity. That question was the subject of an extended analysis by the Judge, referring to the legislative history of ss 166–169 of the SCA, and to New Zealand and English authorities.^[6]
• [19] In determining whether s 169(6) prevents an appeal from the Judge’s finding that leave was required before Dokad could pursue the proceedings, it is necessary to consider both the text and the purpose of s 169(6). The High Court Judge’s finding that Dokad could not pursue the proceedings is not a “determination of an application for leave”.^[7] Rather, it is a finding as to whether leave for Mr Mawhinney to bring proceedings was required to enable Dokad to bring the proceedings. So the text of s 169(6) does not on its face extend to this aspect of the judgment. Turning to purpose, Dokad’s argument that the s 169 bar did not apply to its proceedings was not accepted by the Judge. But that argument is not wholly without merit. The policy underpinning ss 166–169 of the SCA does not extend to preventing Dokad from challenging the Judge’s conclusion on that question on appeal.
• [20] I therefore consider that this Court does have jurisdiction to hear Dokad’s appeal from the Leave judgment. The Deputy Registrar erred in declining to accept the notice of appeal for filing.
• [21] Similarly, this Court has jurisdiction to hear Dokad’s appeal from the Costs judgment. The award of costs against Dokad is not a determination to which s 169(6) of the SCA applies. The Deputy Registrar erred in declining to accept the amendment notice for filing.
• [22] I emphasise that the appeal from the Leave judgment does not provide an opportunity for Dokad (or Mr Mawhinney) to challenge the Judge’s decision declining to grant leave to Mr Mawhinney to bring proceedings. That issue has been finally decided. The only question that can be argued on this appeal is whether, in circumstances where leave has been declined to Mr Mawhinney to bring proceedings, Dokad is also precluded from doing so. Nor is it open to Dokad to revisit the merits of the Leave judgment in the context of the appeal from the Costs judgment.

Result

• [23] The decisions of the Deputy Registrar to decline to accept for filing the notice of appeal and the amendment to that notice are set aside.

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^[1] Auckland Council v Mawhinney [2019] NZHC 299 at [160]; Mawhinney v Auckland Council [2021] NZCA 144 at [135]; and Mawhinney v Auckland Council [2021] NZSC 122.

^[2] Dokad Trustees Ltd v Auckland Council [2021] NZHC 2603 (Leave judgment) at [60]–[63].

^[3] At [51].

^[4] At [64].

^[5] Dokad Trustees Ltd v Auckland Council [2021] NZHC 2930 (Costs judgment).

^[6] Leave judgment, above n 2, at [32]–[46].

^[7] Senior Courts Act 2016, s 169(6).