Auckland Council v Mawhinney [2018] NZHC 2342 (6 September 2018)

Last Updated: 12 March 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2775 [2018] NZHC 2342

UNDER	The Senior Courts Act 2016
IN THE MATTER	of orders under s 166 Senior Courts Act 2016 to restrict commencement of continuing proceeding
BETWEEN	AUCKLAND COUNCIL Applicant
AND	PETER WILLIAM MAWHINNEY Respondent

Hearing:	05 September 2018
Counsel:	L A Player-Bishop for Applicant P Mawhinney, in person, Respondent
Judgment:	6 September 2018

JUDGMENT OF VAN BOHEMEN J

[on application for ordering directing statements of claim and defence to be filed]

This judgment was delivered by me on 06 September 2018 at 3pm Pursuant to Rule 11.5 of the High Court Rules

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Registrar/Deputy Registrar

Solicitors/Counsel: Anthony Harper, Auckland

AUCKLAND COUNCIL v PETER WILLIAM MAWHINNEY [2018] NZHC 2342 [6 September 2018]

[1] The Auckland Council is seeking orders under s 166 of the Senior Courts Act 2016 restricting Peter Mawhinney and entities controlled by him from commencing or continuing proceedings against the Auckland Council without the leave of the Court.

[2] On the basis of an application made without notice, on 12 December 2017 Lang J granted the Auckland Council leave to commenced the proceeding by way of originating application. The proceeding has been set down for a one day hearing on 9 November 2018.

[3] This judgment deals with Mr Mawhinney’s application that the Court direct, in accordance with r 19.5A of the High Court Rules 2016, that a statement of claim and a statement of defence be filed.

Relevant background

[4] The Council asserts that over the past 20 years Mr Mawhinney and entities controlled by him have brought various proceedings against the Council and others that have been found to be without merit or which the Council considers have been out of proportion to the matters at issue and the expense of the proceedings.

[5] On 23 July 2018, at a call attended by Mr Mawhinney in person, Wylie J made timetable directions and allocated the fixture on 9 November 2018. In his minute, Wylie J recorded that Mr Mawhinney had queried whether the proceeding could proceed by way of originating application but had not made any application in that regard. Under the timetable set by Wylie J, Mr Mawhinney was to file and serve any application and supporting affidavits by 13 August 2018.

[6] On 13 August 2018, Mr Mawhinney applied for orders to strike out the Auckland Council’s originating application or, in the alternative, that the Court direct that a statement of claim and a statement of defence be filed. On 27 August 2018, the Auckland Council filed a notice of opposition to Mr Mawhinney’s application which was listed for mention in the Duty Judge List on 5 September 2018.

[7] On 27 August 2018, counsel for the Auckland Council filed a memorandum proposing that Mr Mawhinney’s application be dealt with as a preliminary matter at
the hearing on 9 November 2018. Mr Mawhinney did not respond to the Council’s memorandum.

Discussion

[8] At the mention before me on 5 September 2018, Ms Player-Bishop for the Auckland Council reiterated the position in her memorandum of 27 August 2018 that Mr Mawhinney’s application should be dealt with as a preliminary matter at the fixture of 9 November 2018. I observed that I could see that would work for the strike out application but I was not persuaded it was an efficient way of dealing with Mr Mawhinney’s application that statements of claim and statements of defence be filed and invited Mr Mawhinney and Ms Player-Bishop to address me on that matter.

[9] Mr Mawhinney said that the Council’s claim as set out in the originating application was vague and did not adequately inform him of the nature of the allegations against him. He also took issue with the specifics of some of the assertions in the originating application.

[10] Ms Player-Bishop referred to the evidence that each side had filed which showed that the issues had been adequately identified and also demonstrated that formal steps such as discovery were unnecessary.

[11] I referred counsel to Commissioner of Police v Li¹ in which Lang J had observed the small number of decisions dealing with applications under r 19.5A. Despite the different factual context, I consider that decision to be directly relevant to Mr Mawhinney’s application, particularly Lang J’s observation at [9] that:

The discretion to require a statement of claim to be filed should only be exercised in cases where it is both necessary and proportionate having regard to the nature of the proceeding.

[12] As I noted at the mention, the allegations in the Council’s application that Mr Mawhinney had brought proceedings against the Council that have been found to be without merit are reasonably clear. They been supported by affidavits and a large

¹ Commissioner of Police v Li [2018] NZHC 292

number of exhibits identifying the proceedings in question. Mr Mawhinney has himself filed a substantial affidavit with a large number of exhibits. This suggest he had little doubt about the matters at issue, even if he takes strong objection to some of the Council’s assertions. I do not see this as a case warranting the exercise of the Court’s discretion under r 19.5A to require statements of claim and defence to be filed.

Result

[13] I declined Mr Mawhinney’s application dated 13 August 2018 in so far as it asks that the Court direct that a statement of claim and a statement of defence be filed. Mr Mawhinney’s strike out application can be dealt with at the hearing on 9 November 2018.











G J van Bohemen J