Mawhinney v Auckland City Council [2014] NZHC 2452 (7 October 2014)

Last Updated: 4 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4227 [2014] NZHC 2452

BETWEEN	PETER WILLIAM MAWHINNEY Applicant
AND	AUCKLAND CITY COUNCIL Respondent

Hearing:	25 September 2014
Appearances:	P Mawhinney in person P Moodley for the Respondent
Judgment:	7 October 2014

_{JUDGMENT OF THOMAS J}

This judgment was delivered by me on 7 October 2014 at 11.000 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date:...............................}

Solicitors:

_{Brookfields Lawyers, Auckland.}

MAWHINNEY v AUCKLAND CITY COUNCIL [2014] NZHC 2452 [7 October 2014]

[1] Mr Mawhinney applies for judicial review of two of Associate Judge

Doogue’s decisions.

[2] On 14 June 2012 the Environment Court made a costs order against Mr Mawhinney in the sum of $427,139. Mr Mawhinney’s appeal against that determination was abandoned on 5 September 2012.

[3] On 31 October 2013 the respondent served a bankruptcy notice on Mr

Mawhinney in an attempt to enforce the costs order.

Decisions under review

_{Re Auckland Council, ex parte Mawhinney (27 February 2014)} ¹

[4] On 14 November 2013 Mr Mawhinney filed an application for an order setting aside the bankruptcy notice. Associate Judge Doogue refused to set it aside. Among other findings, the Judge held that Mr Mawhinney had no viable cause of action which would give rise to a counterclaim, set-off or cross-claim.

[5] Mr Mawhinney had made reference to a potential claim for judicial review. Associate Judge Doogue noted there was little practical chance such an application would succeed. He could not envisage to what further relief Mr Mawhinney might be entitled which would take the form of damages or monetary compensation.

_{Re Auckland Council, ex parte Mawhinney (7 May 2014)}²

[6] Mr Mawhinney applied for a recall of Associate Judge Doogue’s judgment of

27 February. He relied on the second category of grounds of recall set out in

Horowhenua County v Nash (No 2), namely that:³

[C]ounsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance...

¹ _{Re Auckland Council, ex parte Mawhinney [2014] NZHC 297.}

² _{Re Auckland Council, ex parte Mawhinney [2014] NZHC 906.}

³ Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

[7] Mr Mawhinney claimed that s 314 of the Resource Management Act 1991 (RMA) had been overlooked as a source of rights giving rise to a claim for damages or compensation. However, having considered his argument, Associate Judge Doogue held:

[15] In my view there was no failure to bring the Court’s attention to authorities and statutory provisions which were relevant to the matter which I was required to decide in my judgment. Section 314 was not relevant in the sense of having the potential to make a difference to the outcome of the decision. The argument which Mr Mawhinney says ought to have been considered which is based on s 314 is misconceived and the section was of no relevance whatsoever to the matters that the court was required to consider.

[8] The application for recall was dismissed.

Does the Court have jurisdiction to review the 27 February 2014 decision?

[9] At the first call of this matter, Venning J questioned whether the Court had jurisdiction to review this decision.

[10] Rule 7.34 of the High Court Rules provides that interlocutory applications must be heard in chambers unless a Judge directs otherwise. Under the Judicature Act, only orders made by associate judges in chambers can be reviewed by the High Court.⁴

[11] In Sharma v Wati, Hansen J had reviewed Associate Judge Bell’s decision to refuse to set aside five bankruptcy notices issued against Dr Sharma and his ex- wife.⁵ The Court of Appeal confirmed that Hansen J did have jurisdiction to review the Associate Judge’s decision. Their reasoning was as follows:⁶

(a) Under s 26I(2)(ha) of the Judicature Act, Associate Judge Bell was entitled to exercise “all the jurisdiction and powers which are vested in the Court or a Judge” by the Insolvency Act (subject to some irrelevant exceptions). Accordingly, Associate Judge Bell was entitled to hear Dr Sharma’s application to set aside the bankruptcy notices.

⁴ _{Judicature Act 1908, s 26P(1).}

⁵ _{Sharma v Wati [2012] NZCA 195, (2012) 21 PRNZ 161.}

⁶ At [17].

(b) Under s 411(1) of the Insolvency Act, a judge (or an associate judge) may exercise all the powers and jurisdiction of the Court under the Act and under s 411(2) a judge (or an associate judge) may hear an application under the Act in open court or in Chambers (again, subject to some irrelevant exceptions).

(c) Under r 7.34(1) of the High Court Rules, because the application was interlocutory, it was to be dealt with in Chambers unless Associate Judge Bell directed otherwise.

(d) There being no indication that the Associate Judge did direct otherwise, his decision must be treated as having been made in Chambers.

(e) Accordingly, the High Court had a power of review under s 26P(1)

of the Judicature Act.

[12] The Court of Appeal’s line of reasoning applies in this case. Associate Judge Doogue did not direct that the application be held in Court as opposed to Chambers. Therefore the High Court has a power of review under s 26P(1) of the Judicature Act.

Review of 27 February 2014 decision out of time

[13] Mr Mawhinney’s application for a review of this decision was filed on 13

May 2014.

[14] Rule 2.3(2) provides that, unless a Judge or Associate Judge directs otherwise, notice of an application for review of an Associate Judge’s decision must be filed and served:

(a) if it is made by a party who was present or represented when the order was made or the decision was given, within 5 working days of the order being made or the decision being given; or

(b) if it is made by a party who was not present or represented, within 5 working days after the receipt by that party of notice of the making of the order or the giving of the decision.

[15] The approach to be taken to the Court’s discretion to extend a time limit for

review is the same as when the Court is considering whether to extend time for an appeal.⁷ The essential question is where the interests of justice lie. This involves

⁷ Sutton v New Zealand Guardian Trust Co Ltd (1989) 2 PRNZ 111 (HC) at 113.

weighing the prejudice which would be suffered by an unsuccessful applicant for leave against that which would be suffered by an unsuccessful opponent.⁸

[16] The Court should consider the lapse of time; the explanation for the delay; and the substance or merit of the proposed review application.⁹ As Lord Guest said in Ratnam v Cumarasamy:¹⁰

The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion [in favour of the applicant]. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation.

[17] Strict compliance with time limits under the High Court Rules is required so that interlocutory matters can be disposed of promptly to allow a matter to proceed to substantive determination.¹¹ The Court should therefore also consider the need to ensure that a proceeding as a whole is dealt with expeditiously and the party seeking an indulgence carries the burden of justifying it.¹²

[18] The Council submits that any application for an extension of time should be declined because:

(a) There was a significant lapse of time between the date of the decision and the filing of the application for review, and an even greater lapse of time between the decision and the application for extension of time now sought;

(b) Mr Mawhinney has provided no explanation for the delay; and

(c) The application for review has no prospect of success. The Council notes that at [4.4] of Mr Mawhinney’s submissions, he acknowledges that “Doogue AJ followed the determination” of previous decisions. The Council says that Mr Mawhinney may take issue with those earlier decisions but it cannot be said that Doogue AJ wrongly applied the law as it currently stands.

⁸ _{Body Corporate 325261 v Stephen Mitchell Engineers Ltd [2014] NZHC 761 at [15].}

⁹ _{Sutton v New Zealand Guardian Trust Co Ltd, above n 13, at 113.}

¹⁰ _{Ratnam v Cumarasamy [1965] 1 WLR 8 (PC).}

¹¹ _{Body Corporate 325261 v Stephen Mitchell Engineers Ltd [2014] NZHC 761 at [16].}

¹² At [18].

[19] Mr Mawhinney represented himself. The Council’s submissions were to be filed and served by 3 September 2014. There is nothing to indicate that order was not complied with. Mr Mawhinney was, therefore, given plenty of notice that the Council objected to any application for an extension of time. In fact, even at the hearing itself, no application for leave to file out of time was made by Mr Mawhinney. When asked about the delay he explained that it was, in his submission, a relatively small delay. He had taken the step of applying for a recall of the decision and it was after the Judge’s refusal to recall his decision that Mr Mawhinney had applied for review of both decisions. In his submission, the Council was not prejudiced, noting that the Council had not yet made an application for adjudication of his bankruptcy. Mr Mawhinney encapsulated his submission by saying, “Justice rules”.

[20] The Council has been prevented from progressing the bankruptcy proceedings, although I accept that, given the applications for recall and review of that decision, which was made within time, the Council would unlikely have been in a position to proceed in any event.

[21] The real issue, which effectively also deals with the application itself, is that the application for review has no prospect of success.

[22] Mr Mawhinney has the burden of persuading the Court that the Judge’s decision was wrong – that it rested on unsupportable findings of fact and/or applied wrong principles of law.¹³

[23] In his judgment of 27 February 2014 the Associate Judge identified and comprehensively addressed three issues. It is essentially the third issue on which Mr Mawhinney focuses, that is, did he have a claim against the Council which exceeded the amount of the judgment debt.¹⁴

[24] The Associate Judge accepted the Council’s submission that the cross-claim on which Mr Mawhinney relied was identical to the one considered by Duffy J in

¹³ Midland Metals Overseas Pte Limited v The Christchurch Press Co Limited (2002) 16 PRNZ

_107.

¹⁴ High Court Rules, Form B 2.

Mawhinney v Auckland Council.¹⁵ Mr Mawhinney and others had brought a claim against the Council that there had been an “egregious delay” on the part of the Council in approving applications for or relating to proposed sub-division of land. Mr Mawhinney’s claimed set off was his intention to claim damages for an alleged breach by the Council of its statutory duty in processing sub-division applications.

[25] Duffy J in Mawhinney referred to another High Court decision in Mawhinney v Waitakere City Council where Fogarty J decided there was no policy vacuum within which there was a need to identify a common law liability of damages in respect of the compliance by territorial authorities with their obligations under the

Resource Management Act 1991.¹⁶ Duffy J concurred with Fogarty J. In reaching

her decision she considered other authorities including a Court of Appeal decision, Attorney General v Carter.¹⁷ Having conducted the review of authorities Duffy J stated:¹⁸

My assessment of the Resource Management Act is that it contains alternative remedies in the form of statutory rights of appeal and judicial review; I can see no contrary indication that tells against these being the only available remedies for persons who consider that a territorial authority that has failed to exercise its statutory powers and duties.

[26] Doogue AJ having considered those decisions concluded that Mr Mawhinney was bound by the doctrine of res judicata as his cross-claim or set off argument was identical to claims he had brought in the earlier proceedings. He noted that Duffy J’s conclusion bound Mr Mawhinney and prevented him from setting up a cross-claim based on an identical cause of action.

[27] Doogue AJ asked Mr Mawhinney to describe what causes of action were available following Duffy J’s decision. It appears that Mr Mawhinney told the Judge he had not yet turned his mind to the exact nature of any claim. The Judge concluded, correctly in my assessment, that Mr Mawhinney was unable to demonstrate any viable cause of action which would give rise to a counterclaim, set

_{off or cross-claim.}

15. Mawhinney v Auckland Council, above n 1, at [37]-[38]; Mawhinney v Auckland Council [2013] NZHC 159, (2013 17 ELRNZ 150) per Duffy J. .

¹⁶ _{Mawhinney v Waitakere City Council [2006] NZHC 1036; (2007) NZRMA 173 (HC).}

¹⁷ _{Attorney General v Carter [2003] NZCA 48; (2003) 2 NZLR 160 (CA).}

¹⁸ Mawhinney v Auckland Council per Duffy J, above n 16, at [11].

[28] While Mr Mawhinney submitted that Doogue AJ had misinterpreted and misapplied the law, he acknowledged in his written submissions that Doogue AJ had “followed the determination of those two Justices [Fogarty and Duffy JJ] as he was bound to do”. The essence of Mr Mawhinney’s review, as he acknowledged, was that he was asking the Court to say both decisions were wrong. His approach was on the basis that, were the Court to rule in his favour, he believed an avenue would open up whereby he would be able to sue the Council and obtain funds to pay the costs awarded against him.

[29] In essence, therefore, Mr Mawhinney is seeking to use the review of Doogue AJ’s decision as an appeal against the decisions of Fogarty and Duffy JJ. That is an abuse of the review procedure. It is not for me to undertake an analysis or reconsideration of those decisions. Mr Mawhinney’s application for review has no prospect of success. He has the burden of persuading the Court that the Associate Judge’s decision was wrong. He has not done so. There was no error in the approach of the Associate Judge.

Review of 7 May 2014 decision (dismissing application for recall)

[30] The decision to decline an application for recall is the exercise of a discretion. Rule 11.9 provides:

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[31] As the Associate Judge’s decision involved the exercise of a discretion, Mr Mawhinney must show that the Judge was wrong in principle or failed to take into account some relevant matter or took into account some irrelevant matter. The Court will not repeat the weighing exercise unless the Associate Judge gave excessive weight to some factor or patently inadequate weight to another, as to be “plainly

wrong”.¹⁹

[32] Mr Mawhinney has not put forward any grounds on which Associate Judge

_{Doogue’s decision could be reviewed. He once again disputes the findings of}

¹⁹ Alex Harvey Industries Ltd v CIR [2001] NZCA 356; (2001) 15 PRNZ 361 (CA) at [12]-[15].

Fogarty J in Mawhinney v Waitakere City Council²⁰ and Duffy J in Mawhinney v Auckland Council.²¹ However, as mentioned above, he acknowledges that Associate Judge Doogue was “bound” to follow those two judgments.

[33] Mr Mawhinney repeats his argument that the Judge’s attention had not been drawn to the provisions of ss 2 and 314 of the RMA. When they are read together, Mr Mawhinney says, damage of the kind he suffered can be the subject of a compensation direction as part of an enforcement order.

[34] However, in his decision declining to recall the judgment, Associate Judge Doogue clearly directed his mind to this argument in paragraphs [14]-[16]. At [15] he stated:

[15] In my view there was no failure to bring the Court’s attention to authorities and statutory provisions which were relevant to the matter which I was required to decide in my judgment. Section 314 was not relevant in the sense of having the potential to make a difference to the outcome of the decision. The argument which Mr Mawhinney says ought to have been considered which is based on s 314 is misconceived and the section was of no relevance whatsoever to the matters that the court was required to consider.

[35] Mr Mawhinney submits that the Judge’s rejection of his argument “is a demonstration that the RMA does not contain a remedy for loss and damage suffered as a direct result of the Judgment Creditor omitting to process resource consent applications for no good reason.” It is for that reason that he seeks a review of the recall decision. However that submission does not go to the Associate Judge’s decision making, which he admits was lawful. It concerns Mr Mawhinney’s criticisms of what he considers is a policy gap in the RMA. Those criticisms cannot form the basis of an application for review.

Result

[36] For the reasons given both applications are dismissed. The first application is out of time and in the circumstances leave is not granted. There is no prospect of

²⁰ _{Mawhinney v Waitakere City Council, above n 17.}

²¹ Mawhinney v Auckland Council per Duffy, above n 16.

success of the application. The application for review of the 7 May 2014 decision is dismissed.

[37] There would seem no reason why costs should not follow the event on a 2B basis. If an agreement cannot be reached however, the Council is to file and serve a memorandum within 21 days of this decision. Any response from Mr Mawhinney is

_{to be filed and served 14 days thereafter.}

Thomas J