Auckland Council v Mawhinney
[2019] NZHC 299
•28 February 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002775
[2019] NZHC 299
BETWEEN AUCKLAND COUNCIL
Applicant
AND
PETER WILLIAM MAWHINNEY
Respondent
Hearing: 9 November 2018
Supplementary submissions by Applicant, 16 November 2018 Supplementary submissions by Respondent, 16 November 2018 Further supplementary submissions by Applicant, 27 November 2018
Submissions in reply by Respondent, 30 November 2018
Appearances:
L Van, L Player-Bishop and K Quinn for the Applicant
P Mawhinney in Person and on behalf of the listed Respondents
Judgment:
28 February 2019
JUDGMENT OF HINTON J
This judgment was delivered by me on 28 February 2019 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Anthony Harper, Auckland
Party:
P Mawhinney
AUCKLAND COUNCIL v MAWHINNEY [2019] NZHC 299 [28 February 2019]
Introduction
[1] The Auckland Council applies for an extended order under s 166 of the Senior Courts Act 2016 (the Act). The Council seeks to prevent the respondent, Mr Mawhinney, and any interests he represents, from commencing or continuing proceedings against it in relation to land in the Waitakere Ranges.
[2]Mr Mawhinney opposes this application. He seeks that it be struck out.
[3]The case is the latest in a 25-year conflict between the parties.1
General background
[4] The focus of the litigation is on land at Anzac Valley Road, Waitakere (the “Waitakere Property”).2 The disputes arise from applications for land use consents and subdivision consents, made by Mr Mawhinney, or entities with which he is involved.
[5] The named parties in the protracted litigation have varied, but what they all had in common was that Mr Mawhinney was closely associated with them. From now on, when I refer to Mr Mawhinney, I am also referring to the various entities with which he is associated. I acknowledge this is not precise, but where it is significant to my reasoning, I will differentiate between the various parties appropriately.
[6] The relevant consent authority was the Waitakere City Council. For convenience, I refer to the Waitakere City Council and its successor, the Auckland Council, simply as “the Council”, given there is no relevant difference between the two entities for the purposes of this proceeding.
[7] The background to the proceedings in relation to the Waitakere Property has been traversed in a number of other judgments. But, for present purposes, it can be summarised as follows.
1 Or, rather, between Mr Mawhinney or various entities related to him and the Auckland Council and one of its predecessors, the Waitakere City Council.
2 More specifically, the land described in Schedule A to this Judgment.
[8] In 1996, companies associated with Mr Mawhinney owned the Waitakere Property, comprising about 123 hectares of land in multiple titles. The companies included Kitewaho Bush Reserve Company Ltd and Waitakere Forestry Park Ltd.
[9] From about 1996 onwards, Mr Mawhinney has endeavoured to obtain subdivision consents under the Resource Management Act 1991 (RMA).
[10] Mr Mawhinney’s original proposal to the Council was described by the Environment Court in Waitakere Forestry Park Ltd and Kitewaho Bush Reserve Ltd in 1997,3 as involving an application for subdivision consent for a cross-lease of 15 titles for a residence described as “Minor Household Units” (MHU) and to partition 22 titles for glasshouses. It was asserted that this was possible under the District Plan.
[11] The Council deferred the application under s 91 of the RMA, as it determined that additional resource consents were required from the Auckland Regional Council. Section 91 allows a consent authority not to proceed with an application for a resource consent if it considers, inter alia, other resource consents under the RMA will also be required.
[12] Mr Mawhinney's associated companies objected to the deferral, seeking to revoke it through various Court processes. They went to the Environment Court in 2001.4 They sought a declaration that the Council was wrongly invoking s 91. They also sought declarations on a series of largely hypothetical questions regarding “subdivision formats”.5
[13] The Environment Court issued an interim decision on the broad law relating to subdivision, but the Court refused to make declarations on hypothetical subdivision plans. It granted leave to the applicants to narrow the scope of the declarations sought.
3 Waitakere Forestry Park Ltd and Kitewaho Bush Reserve Ltd (1997) 3 ELRNZ 38 (EnvC).
4 Kitewaho Bush Reserve Company Limited v Waitakere City Council EnvC A106/2001, 18 October 2001.
5 At [3].
[14] The matter came back before the Environment Court in December 2001.6 Judge Treadwell dismissed the proceeding, noting that "in view of the response of the applicant, Mr Mawhinney, to the Interim Decision whereby he still seeks a proliferation of declarations relating to largely hypothetical situations, I consider this whole exercise to be an abuse of process of the Court".7 Judge Treadwell did, however, conclude the Council had improperly exercised its powers under s 91.
[15] Both parties appealed that decision to this Court.8 Randerson J upheld Judge Treadwell on the abuse of process point, and held further, overturning Judge Treadwell, that the Council had exercised its powers under s 91 appropriately.
[16] Mr Mawhinney sought leave from the Court of Appeal to appeal Randerson J’s decision. The Court declined leave. In declining leave, the Court expressed doubt as to whether the proceeding could be characterised as an abuse of process,9 preferring to characterise it as a case being advanced in a way that the statute did not countenance, because of the lack of particularity in what was proposed.
[17]Litigation in relation to the proposed subdivision continued through the 2000s.
[18] Mr Mawhinney continued to challenge the Council’s exercise of its powers under s 91, despite the determination by Randerson J and the refusal of leave by the Court of Appeal, both referred to above.
[19] In addition, in 2006 Mr Mawhinney sued the Council for breach of statutory duty, negligence, and misfeasance in public office.10 These causes of action arose out of the same set of facts. These claims were struck out, with Fogarty J noting that none of Mr Mawhinney’s arguments were tenable.11
6 Kitewaho Bush Reserve Company Limited v Waitakere City Council EnvC A135/01, 10 December 2001.
7 At [7].
8 Waitakere City Council v Kitewaho Bush Reserve Co Ltd [2005] 1 NZLR 208 (HC).
9 Mawhinney v Waitakere City Council CA109/04, 23 September 2004 at [20].
10 Mawhinney v Waitakere City Council [2007] NZRMA 173 (HC).
11 At [81]–[82].
[20] Mr Mawhinney continued to litigate against the Council. He was twice made bankrupt, once in July 2010 and once in February 2015. He remains an undischarged bankrupt.
[21] In April 2018, Mr Mawhinney filed an application seeking judicial review of a decision by the Council to return a request for a Certificate of Compliance because it was incomplete. In response, the Council advised it would use further information provided in Mr Mawhinney’s affidavit to process the request, this obviously being to obviate the review application. Mr Mawhinney has nonetheless continued with the review application. He is also seeking to consolidate that application with an appeal against various Environment Court decisions.12 That proceeding has been adjourned pending the outcome of this application.
[22] The Council has provided me with a schedule of proceedings involving Mr Mawhinney and the various entities, which I annex to this judgment as Schedule B. I have not reviewed all of the proceedings listed, and the table does not form a part of my reasons. I annex it to provide a broad overview of the history of this dispute. I do not, however, adopt the descriptions of the proceedings, given I have not studied all of the cases closely. I will discuss some of these proceedings in more detail below.
Strike-out application
[23] Mr Mawhinney does not just oppose the s 166 application. He seeks that it be struck out. If he fails on his notice of opposition, it would follow he would fail on the strike-out, but nonetheless I consider the strike-out application first.
Law
[24] Under r 15.1(1)(a) of the High Court Rules 2016, the Court may strike out all or part of a pleading if it discloses no reasonably arguable cause of action.13
12 Namely, Mawhinney v Auckland Council: [2017] NZEnvC 145; [2017] NZEnvC 162; and [2017] NZEnvC 168.
13 “Pleading” is wide enough to cover an originating application, see Group Rentals New Zealand Ltd v Pramb Wong Enterprises Ltd [1995] 1 NZLR 763 (HC) at 767.
[25] In Attorney-General v Prince, the Court of Appeal summarised the established criteria for striking out in such circumstances:14
(a)Pleaded facts are assumed to be true. This does not extend to pleaded allegations that are entirely speculative.
(b)The cause of action must be clearly untenable.
(c)The jurisdiction is to be exercised sparingly and only in clear cases.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law.
[26] Under r 15.1(1)(c), the Court may also strike out all or part of a statement of claim if it is frivolous or vexatious.
[27] The Court’s jurisdiction to strike out a claim should be sparingly employed.15 It is inappropriate to strike out a claim summarily unless the Court can be certain that it cannot succeed.16
Analysis
[28] The grounds on which the Council makes its s 166 application are the following:17
(a)Mr Mawhinney has brought a number of proceedings against the Council and other parties. At least two of these have been found by the relevant courts and tribunals to be totally without merit.
(b)Mr Mawhinney has repeatedly brought proceedings about matters previously decided by a competent court or tribunal.
14 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
15 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [31].
16 At [33].
17 I paraphrase for the sake of brevity.
(c)Mr Mawhinney has been in litigation with the Council in relation to the Waitakere Property since 1996.
(d)The history of the dispute discloses that Mr Mawhinney does not have regard to merit, proportionality or costs in bringing or continuing the various proceedings.
(e)Mr Mawhinney has consistently failed to comply with rulings, practice directions and court orders.
(f)The proceedings Mr Mawhinney has brought have exposed the Council to significant expense and inconvenience, out of proportion to any gain Mr Mawhinney or related entities are likely to receive.
[29] In a strike-out application, I must assume these pleaded facts to be true, unless they are completely speculative. I must decide whether, on these facts, the Council’s application cannot succeed.
[30] I will discuss the law on s 166 applications more thoroughly below. However, for the purpose of the strike-out application, I lay it out briefly here.
[31] The Council seeks an “extended order” under s 166(2)(b) of the Act, which would bar Mr Mawhinney from commencing or continuing civil proceedings on a particular or related matter. A Judge may make an order under s 166(2)(b) if in at least two proceedings brought by the respondent about any matter in any court or tribunal the Judge considers that the proceedings are or were totally without merit.18
[32] In his strike-out application, Mr Mawhinney makes four points that he says justify the Council’s application being struck out:
(a)None of the proceedings is totally without merit.
18 Senior Courts Act 2016, s 167(2).
(b)The Council’s application is designed to cause him prejudice and delay, and is therefore an abuse of process.
(c)The pleaded facts are entirely speculative, and without evidential foundation.
(d)The Council has brought the application with an improper motive – to avoid having to pay compensation under the New Zealand Bill of Rights Act 1990 for its various alleged omissions in performing its duty.
[33] Mr Mawhinney’s argument in (a) is not relevant. In a strike-out application the facts pleaded are assumed to be true. Whether a proceeding is totally without merit is at least in part a question of fact. In any event, as I later set out, I disagree with the proposition at (a).
[34] With regard to his point in (b), an allegation that a proceeding is an abuse of process is a serious one. A party alleging abuse of process bears “a heavy onus” to show that the proceeding was brought for an improper purpose.19
[35] Mr Mawhinney’s principal allegation as to abuse of process is his argument in (d). In effect, he asserts the Council has an ulterior motive in bringing this application – to defeat his claim for damages in his pending judicial review, and thus the application is an abuse of process.
[36] However, were this application granted, Mr Mawhinney would not be absolutely prevented from bringing a claim under the Bill of Rights Act 1990 against the Council. He would need leave of this Court to do so. If he could show he had a meritorious claim, leave might be granted. Furthermore, on the face of it, the Council has legitimate reasons for bringing this application, including wanting to avoid spending large sums of money defending Mr Mawhinney’s endless claims.
19 Williams v Spautz (1992) 174 CLR 509 at 527–529; and Goldsmith v Sperrings Ltd [1977] 1 WLR 478 (CA) at 496.
[37] That leaves only Mr Mawhinney’s argument in (c). The pleaded facts are clearly not “entirely speculative” or without evidential foundation. The Council has provided ample evidence to back up its claims. The material available to me easily passes the threshold necessary to survive a strike-out claim.
[38] I do not consider any of Mr Mawhinney’s arguments on his strike-out claim tenable.
[39] I note Mr Mawhinney makes several other arguments as to matters such as the Council’s authority to bring this claim, and the appropriateness of suing him while he is an undischarged bankrupt. I deal with these matters near the end of my judgment; I did not consider them to be part of the strike-out application, although nothing turns on this.
[40] If the facts pleaded by the Council are true, they would be easily sufficient to activate s 166(2)(b) and allow me to consider whether an extended order should be granted. On the basis of the adopted pleading, there would be more than two proceedings that Mr Mawhinney brought that were totally without merit. The Council’s pleading also discloses facts, such as the cost to it and the length of the dispute, which indicate its application may have a reasonable prospect of success. For these reasons, I find the strike-out application must fail.
[41] I note further that Mr Mawhinney’s bringing the strike-out application, which really did not have a hope of succeeding, does not do him any favours when faced with a claim that he too readily brings meritless proceedings.
Approach to section 166
[42] Under s 166, this Court may make an order restricting a person from commencing or continuing a civil proceeding. Such an order may have limited, extended, or general effect.
[43] The Council seeks an extended order against Mr Mawhinney. This is an order restraining a party from commencing or continuing civil proceedings on a particular
or related matter in a senior court, another court, or a tribunal.20 An extended order is distinguished from a limited order, which only applies to a particular proceeding, and from a general order, which applies to any civil proceeding.
[44] Section 167 provides when a Judge may make an extended order under s 166. The subsections of particular relevance are as follows:
167 Grounds for making section 166 order
…
(2)A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
…
(5) The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
…
[45] “Proceeding” is not defined in the Act. Under the High Court Rules, a “proceeding” is defined as, “any application to the court for the exercise of the civil jurisdiction of the Court other than an interlocutory application”.21
[46] “The court” is defined in the High Court Rules as referring to the High Court, but s 167 of the Act makes clear that it captures proceedings brought in “any court or tribunal”. With that modification, I consider the term “proceeding” has the same meaning under ss 166–169 of the Act as it does under the High Court Rules.22
[47] As provided in s 167(6), for the purposes of making a s 166 order, an appeal in a civil proceeding must be treated as part of a proceeding and not as a distinct proceeding. Filing a counterclaim is, however, treated as a separate proceeding.23
20 Senior Courts Act 2016, s 166(4).
21 High Court Rules 2016, r 1.3.
22 A definition that is also replicated in the District Court Rules 2014, r 1.4.
23 Attorney-General v Heenan [2009] NZAR 763 (HC) at [31]. This was a case under the previous regime governed by s 88B of the Judicature Act 1908. But I find the rationale equally compelling under s 167: a counterclaim is an independent proceeding inserted into the plaintiff’s claim as a procedural convenience.
[48] In determining whether proceedings are or were totally without merit, the Court may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.24
[49] The qualifying proceedings concerned must be proceedings commenced or continued by the party to be restrained, but may be against the same person or different persons.25
[50] The term “totally without merit” is not defined in the Act. In Genge v Visiting Justice Christchurch Men’s Prison, Nation J referred to the factors identified by the Ministry of Justice in its report on the Judicature Modernisation Bill as being relevant to determining whether a proceeding is totally without merit:26
(a)the proceeding has no prospect for success, whatsoever;
(b)the proceeding exposes the defendants to inconvenience, harassment and expense out of all proportion to the gain a plaintiff is likely to receive;
(c)the proceeding is brought at the drop of a hat despite the lack of merit;
(d)the litigant has paid no regard to the merits, proportionality or costs of the proceeding;
(e)the statement of claim or defence discloses no reasonable grounds of bringing or defending the claim;
(f)the statement of claim is an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of the proceeding; and
24 Senior Courts Act 2016, s 167(4).
25 Section 167(5).
26 Genge v Visiting Justice Christchurch Men’s Prison [2018] NZHC 1457 at [29]; see further Judicature Modernisation Bill: Report of the Ministry of Justice to the Justice and Electoral Committee (Ministry of Justice, Departmental Report CRT-09-04-07, April 2014) at [292]–[293].
(g)the litigant has failed to comply with a rule, practice direction or court order.
[51]Some of these factors are obviously more relevant than others.
[52] Under s 88B of the Judicature Act 1908, the predecessor to s 166, the proceedings complained of were required to be vexatious. While no longer an explicit requirement, the test for vexatiousness is still relevant as to whether an order is necessary. A Full Bench of this Court in Attorney-General v Heenan identified features that will indicate a claim is vexatious:27
(a)a pattern of complex, prolix, and sometimes incomprehensible pleadings;
(b)the proceedings showing the respondent to be an almost compulsive litigant against a widening circle of defendants;
(c)extravagant claims or scandalous allegations which the litigant has no prospect of substantiating or justifying;
(d)the frequency with which part or all of the respondent’s statements of claim have been struck out; and
(e)the extent to which the respondent allows their proceedings to lie dormant.
[53] A proceeding may be vexatious even if it contains the germ of a legitimate grievance, or may disclose a cause of action or a ground for institution. The conduct and outcome of such a proceeding when viewed in the overall light of the institution, conduct, and outcome of other proceedings may well demonstrate its own particular vexatiousness and unreasonableness.28 I consider these statements are equally applicable to whether a proceeding is “totally without merit” under s 166.
27 Attorney-General v Heenan [2009] NZAR 763 (HC) at [138]; upheld on appeal in Heenan v Attorney-General [2011] NZCA 9, [2011] NZAR 200.
28 Attorney-General v Hill (1993) 7 PRNZ 20 (HC) at 23.
[54] The Court should be slow to make a restraint order as it amounts to a breach of a person’s right of access to justice.29
[55] However, considering the worry and expense that the opponents of meritless litigation face, and the barely sufficient resources of the judicial system to afford justice without unreasonable delay to those who have genuine grievances, a Court should exercise its discretion to make an order in appropriate cases.30
Mr Mawhinney’s previous proceedings
[56] In order to activate s 166, the Council must identify at least two proceedings that are or were “totally without merit”, which were commenced or continued by the party to be restrained.
[57] I have already annexed the Council’s schedule of proceedings brought by Mr Mawhinney and related parties.
Proceedings involving Mr Mawhinney in other capacities
[58] Mr Mawhinney disputes whether some of the proceedings qualify. He says, firstly, that in some of the proceedings cited he was not the plaintiff, so they do not qualify under s 167 because they were not proceedings “brought or continued by the party to be restrained”.31 Rather, the plaintiffs (or applicants in some of the cases) were various companies, with which he happens to be associated.
[59] He takes particular exception to the Council’s claim that he has been in litigation with it since 1996, noting that he was not a named party in many of the proceedings. This is true, but misleading. In the first decision in the Council’s table, given in 1997 by the Environment Court, Mr Mawhinney was not a party. But he appeared in person on behalf of the corporate applicants, this being permissible in the Environment Court.32 He similarly appeared in many others of the cases cited.
29 Genge v Visiting Justice Christchurch Men’s Prison [2018] NZHC 1457 at [30]; and
Attorney-General v Siemer [2014] NZHC 859 at [50]–[52].
30 Attorney-General v Jones [1990] 1 WLR 859 (CA) at 865.
31 Senior Courts Act 2016, s 167(5).
32 Waitakere Forestry Park Ltd v Waitakere City Council (1997) 3 ELRNZ 38 (EnvC).
[60] Mr Mawhinney further makes much of the distinction between his acting in a personal capacity and as a trustee of various trusts. He says he brought some proceedings as a trustee and similarly that this current application was brought against him in a personal capacity, whereas it should have been brought against him as a trustee. He says he is making submissions in his capacity as trustee, albeit he does not specify what he holds on trust, or on behalf of whom.
[61] Whether there is a distinction between Mr Mawhinney in person and Mr Mawhinney acting as a trustee for this purpose, was considered by a Full Bench of this Court in Attorney-General v Heenan:33
… where a person purporting to act as a trustee persistently, and without any reasonable ground, institutes vexatious legal proceedings, the Court's discretion to make an order under s 88B is available to the same extent as it is in the case of such proceedings brought by a person in their own right.
[62] The Court noted one of the purposes of s 88B was to protect those against whom these actions are being brought, and to prevent them from being subjected to the burden of costs which they will never recover.34 This purpose favoured the term “any person [who brings vexatious proceedings]” being given a liberal interpretation, albeit not a strained one.35 Heenan was subsequently affirmed on appeal, and the Court of Appeal specifically endorsed this point.36 Heenan was a case under s 88B of the Judicature Act 1908, but it is equally applicable to interpretation of “person” under s 167 of the Senior Courts Act.
[63] I do not, therefore, accept Mr Mawhinney’s being a trustee has any significance. Proceedings where he is acting as a trustee can properly be considered for purposes of s 167(2). Also, a trust is not an incorporated body: it has no separate legal identity outside of the trustees, as noted by this Court in Heenan.37 It does not make any difference for the purpose of this application if Mr Mawhinney is sued as a trustee or otherwise.
33 Attorney-General v Heenan [2009] NZAR 763 (HC) at [37].
34 At [33], citing In re Langton [1966] 1 WLR 1575 (CA).
35 At [34], citing Attorney-General v Hill (1993) 7 PRNZ 20 (HC) at 23.
36 Heenan v Attorney-General [2011] NZCA 9, [2011] NZAR 200 at [23].
37 Attorney-General v Heenan [2009] NZAR 763 (HC) at [36].
[64] I am uncertain if the same reasoning applies to proceedings brought by the incorporated companies associated with and represented by Mr Mawhinney. Section 167(5) is in terms: “the proceedings concerned must be proceedings commenced or continued by the party to be restrained”. Proceedings commenced by a party other than Mr Mawhinney would appear not to count as a qualifying proceeding under s 167(2), even if Mr Mawhinney represented that party.
[65] A similar question arises in terms of the effect of the order sought, namely whether it prevents corporate entities controlled by Mr Mawhinney from bringing proceedings. I touch briefly on this later.
[66] The Council has not specifically addressed me on this point. In terms of s 167(2), it takes the view there are sufficient applicable proceedings in any event.
[67] I would be somewhat sympathetic to an argument that the legislature did not intend to preclude a proceeding from qualifying only because the litigant acted through companies, rather than in a personal capacity, especially where he was effectively the only shareholder and director. A proceeding “commenced” in the name of a company would still in those circumstances be a proceeding commenced by Mr Mawhinney.
[68] But, as this may amount to effectively lifting the corporate veil, such an argument would require thorough submissions, and possibly evidence. Because I have not heard argument on it, I do not take the point further. I proceed on the basis that proceedings commenced by corporate entities where Mr Mawhinney was not a named party do not qualify as being a “proceeding” under s 167.38
[69] This excludes many of the cases which are included in the Council’s Schedule B from being qualifying “proceedings” for purposes of s 167, although those other proceedings are in my view still relevant in terms of the discretion to be exercised under that section.
38 This is a troubling point with s 166. There will be many self-represented litigants who bring repeated, unmeritorious litigation on behalf of companies, often with themselves being the sole director and shareholder. In such cases, such a litigant could defeat or vex an application for an order under s 166 by reason of only acting through a succession of companies. While one company could itself be restrained from bringing proceedings, or liquidated, it would be a simple matter for such a litigant to incorporate a new company.
Qualifying proceedings
[70] I have identified three proceedings commenced or continued by Mr Mawhinney, that I consider potentially qualify as being “totally without merit”. I note at the outset that I do not intend to do as Mr Mawhinney invites and conduct a “full rehearing” of the proceedings to which I will refer. I will focus on whether the proceedings, on the presiding Judge’s view, had a hope of succeeding, and the manner in which Mr Mawhinney conducted himself in those proceedings.
(i)Mawhinney v Waitakere District Council EnvC A199/05, 7 December 2005: “the Sheppard Proceeding”39
[71] This proceeding was commenced by Mr Mawhinney and South Kaipara Nominees Ltd in the Environment Court. It concerned an appeal against the decision of the Council to decline a certificate of compliance for boundary changes. South Kaipara Nominees Ltd was placed in liquidation before the hearing, and replaced by another company which, in the Judge’s words, was “effectively controlled by Mr Mawhinney”.40
[72] The appellants had applied to the Waitakere City Council for a certificate of compliance to alter the boundary of certain land, which I presume to be the Waitakere Property.
[73] The Council refused to issue a certificate, explaining that “[the proposal would] undermine the policies and objectives for controlling the density of settlement in a foothills environment and undermine the open space concept there”.41 The Council also noted that the particular interpretation of the District Plan advanced by Mr Mawhinney had been rejected in litigation in the Environment Court, High Court, and Court of Appeal.42
39 I have described a particular proceeding (include related appeals and other hearings) by the name of the Judge who delivered the most significant judgment in that proceeding: i.e. the “Sheppard Proceeding”, or the “Heath Proceeding”. This is how the proceedings came to be described at the hearing, and I continue with that usage. It is otherwise confusing for all concerned to distinguish between proceedings when they all have such similar names.
40 Mawhinney v Waitakere District Council EnvC A199/05, 7 December 2005 at [3].
41 The Waitakere City Council’s reasons are reproduced at [16].
42 See Mawhinney v Waitakere City Council CA109/04, 23 September 2004.
[74] Mr Mawhinney appealed this refusal to the Environment Court. The Council responded by applying for the appeal to be struck out, on the grounds it had no jurisdiction to issue a certificate of compliance; the appeal was frivolous or vexatious; and it would be an abuse of process to allow the appeal to be taken further, as Mr Mawhinney relied on an argument that had already been rejected by the Environment Court, the High Court, and the Court of Appeal.
[75] Judge Sheppard noted his power to strike out, derived from s 279(4) of the RMA, which is in material respects identical to the grounds for strike-out under the High Court Rules.43 The Judge noted that the Court could only strike out a party's case if it is so clearly untenable that it cannot possibly succeed.44
[76] I will not traverse the decision in detail, suffice to say that Judge Sheppard struck out Mr Mawhinney’s appeal because it could not possibly succeed, was a misuse of the right of appeal, and was an abuse of process:45
There are two grounds of the appeal. Of the first, the common area/complete site ground, I have found that it is so clearly untenable that it discloses no reasonable case and cannot possibly succeed. Of the second ground, the series of boundary changes ground, I have found that it would be an abuse of the process of the Court to allow that ground to be taken further.
[77] Mr Mawhinney (and his associated company) then applied to have the decision reheard under s 294 of the RMA.46 Mr Mawhinney provided 13 pages of grounds outlining why the decision should be revisited.
[78] The Environment Court's power under s 294 to order rehearing of proceedings can only be exercised in one or other of two circumstances: if new and important evidence becomes available, or if there has been a change in circumstances that might have affected the decision.
43 High Court Rules 2016, r 15.1(1).
44 Mawhinney v Waitakere District Council EnvC A199/05, 7 December 2005 at [37].
45 At [131].
46 Mawhinney v Waitakere District Council EnvC A20/06, 23 February 2006.
[79] Judge Sheppard found that the “new” information supplied by Mr Mawhinney and the supposed change in circumstances were not sufficient to activate the jurisdiction in s 294. He held, therefore, that he had no power to order a re-hearing.
[80] Mr Mawhinney also alleged that the Council had ambushed him during the strike-out hearing; that their counsel had misled the Court; and that injustice had arisen from an error by the Court on the factual material.47 It is clear from the judgment that Judge Sheppard patiently considered these arguments, but concluded they were not made out. He commented, “more generally, counsel for the Council throughout showed the restraint and consideration appropriate for a public authority in litigation with a party who did not have professional representation”.48
[81] It seems Mr Mawhinney appealed the decisions of the Environment Court to this Court.49 However, I can only assume that appeal was abandoned, there being no record of a decision. The Council understandably applied for costs on both the Environment Court decisions. Mr Mawhinney applied for a stay of costs pending his appeal to this Court, but this was declined.50
[82] Judge Sheppard ultimately awarded costs to the Council.51 The Council said it had incurred approximately $35,800 in costs on the proceeding.52 Mr Mawhinney raised four points: the Council had incurred costs because of its own incompetence; the Court’s decision was wrong, so it would be unjust to award costs; the Council had taken pedantic points in response to the application; and the Council had an ulterior motive in seeking costs. The ulterior motive alleged was that the Council was seeking to avoid paying damages on Mr Mawhinney’s separate judicial review application (a point he also makes in front of me). Judge Sheppard gave these arguments little weight.
[83] In concluding that costs should be awarded against Mr Mawhinney, Judge Sheppard noted the following points:
47 At [27].
48 At [29].
49 Mawhinney v Waitakere District Council EnvC A110/06, 4 August 2006 at [6].
50 At [31].
51 Mawhinney v Waitakere District Council EnvC A116/06, 1 September 2006.
52 At [18]–[21].
(a)In the rehearing, Mr Mawhinney attempted to raise many arguments that had already been adjudicated on in the strike-out.
(b)Both the appeal and the application for rehearing lacked substantive merit.
(c)The Council had to incur cost in responding to technical and mostly unmeritorious arguments raised by the appellants.
(d)The Council had to incur costs in refuting baseless criticisms about its conduct in the proceedings.
[84] The Judge calculated scale costs on the strike-out at $10,000, and $1,300 on the rehearing application. He held, however, that these amounts would be insufficient in light of the above factors, and increased the former amount by 25 per cent, and the latter by approximately 70 per cent.53
[85] As I have said, it seems either that Mr Mawhinney was unable to file his appeal to this Court, or he abandoned the appeal. In any event, this is where the Sheppard Proceeding concluded, after a little over a year.
(ii)Mawhinney v Waitakere City Council [2007] NZRMA 173 (HC): “the Fogarty Proceeding”
[86] This proceeding was commenced by Mr Mawhinney in this Court, independent of his proceedings under the RMA. The case was presided over by Fogarty J.
[87] Mr Mawhinney claimed that he or various trusts had made subdivision applications that had not been processed by the Council. His principal concern was the Council’s invoking of s 91 of the RMA.
[88] The Council considered Mr Mawhinney required consents from the Auckland Regional Council. Mr Mawhinney disputed this. In fact, it was effectively this point
53 At [94]–[95].
that he had raised in the Environment Court on two previous occasions, and once on appeal to this Court,54 as discussed earlier.
[89]Fogarty J had the following to say:55
Having heard two days of argument on this matter I am satisfied that essentially Mr Mawhinney is still seeking to argue the same point under s 91. Some of his argument has apparently been developed or presented in more detail to me than it was before the other Courts. However, the principle of res judicata anticipates that in the course of rearguing cases, points can be redefined and redeveloped and new points advanced. That is not, however, a reason for allowing cases to be argued again and again.
[90] Based on the Council’s refusal to process his application, Mr Mawhinney pleaded breach of a statutory duty, negligence, and misfeasance in public office. He also sought judicial review of the Council’s decision to invoke s 91. The Council applied to have the causes of action struck out.
[91] Fogarty J held that none of these causes of action could succeed.56 In particular, he found the Council was not activated by malice, which was an allegation made by Mr Mawhinney as part of the tort of misfeasance in public office.
[92] Fogarty J made the following comments, which illuminate the manner in which Mr Mawhinney presented his arguments:
[74] I know of no case where a Council has exercised a discretion power validly, had that exercise tested by two independent Courts and yet been held to have acted maliciously.
[75] Overall the plaintiff’s perception of malice seems to follow from a fundamental misunderstanding of the rights of owners of property.
…
[79] … It does seem to me that Mr Mawhinney has been constantly looking for ways of enjoying a property right, misconceived as being nearly absolute, without being entangled in the lengthy and costly processes of Local Government. However, like death and taxes, they are inevitable.
[80] I think that there is no prospect of Mr Mawhinney sustaining malice on these facts. Nor do I think there is a factual substratum out of which the
54 Summarised in Waitakere City Council v Kitewaho Bush Reserve Co Ltd [2005] 1 NZLR 208 (HC) per Randerson J.
55 Mawhinney v Waitakere City Council [2007] NZRMA 173 (HC) at [28]–[29].
56 At [44], [49], [56], and [80].
pleadings, already voluminous, could be amended to offer any prospect of success.
[93]Fogarty J therefore struck out all of the causes of action.
[94] Mr Mawhinney disputes the correctness of Fogarty J’s decision. He points to a passage where Fogarty J doubts whether Mr Mawhinney has standing to progress an application in relation to land in which he no longer has an interest.57 Mr Mawhinney submits the Court of Appeal’s decision in MacLaurin v Hexton Holdings Ltd is authority for the proposition that any person can apply for resource consents for land, even if they have no interest in it.58 So, he says, his case before Fogarty J was not “totally without merit”, as one of Fogarty J’s conclusions is wrong.
[95] I do not, thankfully, need to examine the standing of Mr Mawhinney to pursue resource applications. As the Council submits, Fogarty J’s primary finding that the Council’s powers were properly exercised under s 91 was not disturbed by MacLaurin.59 Even if Fogarty J was wrong on the standing point, I do not consider the overall result would have changed. As I said earlier, a proceeding can still be totally without merit despite a germ of a legitimate grievance.
[96] It seems Mr Mawhinney did not appeal Fogarty J’s decision. He informs me that he “had grounds”, but decided not to pursue them.
[97] Fogarty J awarded costs against Mr Mawhinney.60 Fogarty J also made several comments in his costs decision that illuminate how Mr Mawhinney conducted himself in the litigation:61
The statement of claim as examined on the application for strike out ran to over 60 pages. It was full of factual detail. It was difficult to analyse. It ignored or otherwise obscured a significant previous litigation history in which the use by the Council of the power in s 91 had been upheld by the Environment Court … and the High Court on appeal.
57 At [41].
58 MacLaurin v Hexton Holdings Ltd [2008] NZCA 570, (2008) 10 NZCPR 1 at [47].
59 Mawhinney v Waitakere City Council [2007] NZRMA 173 (HC) at [34].
60 Mawhinney v Waitakere City Council HC Auckland CIV-1999-404-1850, 20 June 2007; and
Mawhinney v Waitakere City Council HC Auckland CIV-1999-404-1850, 26 September 2007.
61 Mawhinney v Waitakere City Council HC Auckland CIV-1999-404-1850, 20 June 2007 at [6] and [9].
…
Mr Mawhinney pursued this litigation without the benefit of solicitors or counsel. The original statement of claim filed was 34 pages. The first amended statement of claim stretched to 164 pages and the most recent pleading was 64 pages. His submissions at strikeout were 41 pages long together with an 18 page commentary on the respondent's chronology of events. Prior to the strikeout hearing he filed an affidavit that together with exhibits comprised 486 pages. There were other affidavits filed by Mr Mawhinney in the course of the interlocutory arguments.
[98] I note Fogarty J’s comment that he considered the proceeding was not an abuse of process, but the Judge was substantially critical of Mr Mawhinney’s pursuing the claim.62 The Judge therefore gave an uplift of 25 per cent on scale costs, with an allowance for second counsel due to the “factual complexity and sheer volume of the materials involved”.63 Similar to my point above, a proceeding can be totally without merit, without falling into the category of abuse of process.
(iii)Perceptus Ltd v Waitakere City Council EnvC A40/08, 4 April 2008: “the Heath Proceeding”
[99] This proceeding involved three appeals that were heard together. The appellants had applied for various certificates of compliance and applications for resource consent to subdivide the subject land, and appealed the Council’s refusal.
[100] The appeals were not commenced by Mr Mawhinney, but by three companies. Mr Mawhinney represented all three companies in the Environment Court.
[101] Judge Whiting also heard another similar appeal from another of Mr Mawhinney’s related companies, on which he delivered a separate judgment.64 The Judge noted, however, that the two decisions should be read together.65
[102] As I said above, I have proceeded on the basis that proceedings commenced by parties other than Mr Mawhinney do not qualify as “proceedings” in terms of s 167.
62 Mawhinney v Waitakere City Council HC Auckland CIV-1999-404-1850, 26 September 2007 at [8].
63 At [6] and [8].
64 Waitakere Resource Consents Ltd v Waitakere City Council EnvC A39/08, 4 April 2008.
65 Perceptus Ltd v Waitakere City Council EnvC A40/08, 4 April 2008 at [19].
[103] But, in this instance, Mr Mawhinney appealed the Environment Court’s decision to this Court and in doing so, he was substituted as appellant.66 Heath J, who heard the appeal, noted, “Mr Mawhinney has been substituted as appellant to replace the corporate applicants, for reasons I need not detail.”.67 I suspect the underlying reason was that companies are almost always required to be represented by counsel in this Court, unlike in the Environment Court. So Mr Mawhinney would not have been able to continue his appeal otherwise.
[104] Although the readiness with which Mr Mawhinney substituted himself is telling, the reason for it is not material. As a result of his substitution as appellant, I consider this proceeding falls under the language in s 167(5), “the proceedings concerned must be proceedings commenced or continued by the party to be restrained”. Mr Mawhinney continued the proceeding, although he did not commence it, so this proceeding qualifies for consideration as to whether it was “totally without merit”.
[105] In the Environment Court, the Council applied to have the proceeding struck out as an abuse of process, and also because it disclosed no reasonably arguable case. Judge Whiting approached the case by evaluating the applicant’s proposals under the RMA. He found all three appeals should be struck out, as they involved proposals that were contrary to the objectives and policies of the plan.68
[106] When Mr Mawhinney, now acting in a personal capacity, appealed to this Court, Heath J described the “common thread” running through Judge Whiting’s decisions as being that the resource applications were a “contrivance” to avoid the need to comply with the subdivision provisions of the Act.69
[107] Mr Mawhinney raised 12 grounds of appeal on questions of law. Heath J considered, however, that the central issue was whether the Environment Court was right to strike out the appeals for abuse of process.70 He held as follows:71
66 Mawhinney v Waitakere City Council [2009] NZRMA 230 (HC).
67 At [14].
68 Perceptus Ltd v Waitakere City Council EnvC A40/08, 4 April 2008 at [33].
69 Mawhinney v Waitakere City Council [2009] NZRMA 230 (HC) at [13].
70 At [16].
71 At [39].
The Environment Court held that Mr Mawhinney's attempts to circumvent the Act and the relevant operative plan amounted to an abuse of process. Because the application attempted to subvert the subdivision requirements of the Act and the relevant operative district plan, I have no doubt that the Environment Judge was right to hold that the appeals amounted to an abuse of process.
[108]For that reason, Heath J upheld Judge Whiting’s decision.
[109] Mr Mawhinney sought leave to appeal that decision to the Court of Appeal under s 308 of the RMA.72 Heath J wrote the following:
[14] In reaching my conclusion that the Act did not permit a subdivision to be undertaken through a combination of resource consents and certificates of compliance, I applied an analysis of the Act undertaken by Randerson J in Kitewaho Bush Reserve Co Ltd v Waitakere City Council. However, that finding of law was not necessary to Randerson J's decision and was expressly described by him as “obiter”.
[15] In Kitewaho, Randerson J held that a subdivision could not be effected under the Act unless it was expressly allowed by a rule in a district or proposed plan or authorised by a resource consent.
…
[17] To some extent the challenge to my judgment is a challenge to the analysis undertaken by Randerson J in Kitewaho. Mr Mawhinney was the human mind of Kitewaho Bush Reserve Co Ltd. He made an application for leave to appeal that judgment. On 14 May 2004, Randerson J dismissed that application. So far as the obiter analysis was concerned, the Judge declined to grant leave because his findings were not material to, nor necessary for, his decision: see Kitewaho Bush Reserve Co Ltd v Waitakere City Council (High Court Auckland, AP32/03, 14 May 2004, Randerson J).
…
[19] For the reasons given in my 27 November 2008 judgment, I did not consider there was any merit in the argument advanced by Mr Mawhinney. It seemed to me that the Act was clear. I had no doubt about the Environment Court's jurisdiction to strike out the appeal. My analysis of the Act came to precisely the same conclusion as Randerson J. There are no conflicting decisions of this Court which require resolution by the Court of Appeal.
[20] Mr Mawhinney's best point is that there is a public interest in having the issues determined by the Court of Appeal because of the need to have a final and authoritative decision for other cases. But the force of that submission is diminished by the fact the point has been raised in cases only involving Mr Mawhinney, or some entity controlled by him.
72 Mawhinney v Waitakere City Council HC Auckland CIV-2008-485-1119, 19 February 2009.
[110] He concluded that, in those circumstances, the threshold for leave to appeal had not been made out.
[111] Heath J concluded with a discussion on costs. As in the above proceedings, the discussions on costs illuminate the Judge’s view of how Mr Mawhinney conducted the proceeding.
[112] Heath J noted that the Council had been put to unnecessary cost, not only by arguments which had already been raised and determined, but also because of the “prolix and non-focussed way in which submissions were made in advance of the appeal”.73 He said this caused the Council to instruct its lawyers to prepare thoroughly on the basis of a number of issues raised which had no prospect of success. Heath J therefore granted an uplift on scale costs of 50 per cent.74
[113] Mr Mawhinney then sought special leave to appeal from the Court of Appeal under s 308 of the RMA.75
[114] The Court noted that Mr Mawhinney's arguments in the present appeal were presented in essentially the same form to Randerson J in Kitewaho.76 They considered Randerson and Heath JJ’s statements of the law to be correct.77 They commented further that Mr Mawhinney’s arguments were unsupported either by precedent or by logic.78 They concluded by noting that Mr Mawhinney was using the appellate procedure as a means of furthering his own interests, and as a backdoor means of expanding his argument into a wider challenge.79 The Court of Appeal declined leave.
Discussion
[115] In deciding an application under s 166, I consider there are two steps. Firstly, I must decide whether there are at least two proceedings that are or were totally without
73 Mawhinney v Waitakere City Council HC Auckland CIV-2008-485-1119 at [26].
74 At [31].
75 Mawhinney v Waitakere City Council [2009] NZCA 335.
76 Waitakere City Council v Kitewaho Bush Reserve [2005] 1 NZLR 208 (HC).
77 Mawhinney v Waitakere City Council [2009] NZCA 335 at [25].
78 At [26].
79 At [30].
merit. If that is so, secondly, I make a discretionary judgment on whether an order is appropriate. In so doing, I may consider how those proceedings were conducted, and any wider circumstances that weigh for, or against, an order being made.
Were the proceedings totally without merit?
[116] I consider that all three of the proceedings I have discussed were totally without merit. All three proceedings were struck out in their entirety, and, in the latter two, the decision to strike out was affirmed on appeal (in the case of the Heath Proceeding, the decision was affirmed twice).
[117] The proceedings have exposed the Council to disproportionate levels of inconvenience and expense, chiefly because of Mr Mawhinney’s tendency to raise overly technical points and to attempt to re-argue points already determined in previous decisions. This was demonstrated in comments by Judges in all three proceedings, and by the Judges applying reasonably significant uplifts to the costs awarded against Mr Mawhinney.
[118] In both the Sheppard and Heath Proceedings, the proceeding was found to be an abuse of process. In the Heath Proceeding, the Court of Appeal also commented that Mr Mawhinney was improperly using the appellate process.
[119] For these reasons, I am satisfied that the proceedings were totally without merit. They have been characterised by Mr Mawhinney’s continuing to argue effectively the same point that was determined finally by Randerson J in Kitewaho in 2005, by unnecessarily complex and ultimately fruitless arguments, and all of them ultimately could never have succeeded.
Should an order be granted?
[120] The threshold of there being at least two proceedings that were totally without merit has been met. I now move to consider whether I should make the order sought by the Council.
[121]I consider there are numerous factors that justify my making a restraint order.
[122] In spite of the number of his proceedings that have been struck out, and the numerous costs awards made against him, Mr Mawhinney pays no mind to forcing the Council to incur further costs. He has largely failed to pay any costs orders and has been rendered bankrupt twice as a consequence.
[123] He continually brings proceedings about largely the same matters. He resorts to litigation “at the drop of a hat”. He pays little respect to prior decisions and continues to make the same arguments over and over, presumably in the hope of finding a Judge who is receptive to them.
[124] In addition, the way Mr Mawhinney conducts his proceedings have many of the hallmarks of what would have been considered a vexatious claim under the old regime:
(a)His pleadings and submissions are complex, prolix and often demonstrate a lack of understanding of the law. To a certain extent, Mr Mawhinney is allowed some latitude given his lack of legal training. But his lack of understanding and the excessive length of his submissions have been pointed out to him in the past,80 yet he continues to submit voluminous amounts of paper. In this proceeding alone, his submissions come close to 200 pages in total.
(b)Mr Mawhinney frequently alleges malice on the part of counsel acting for the Council, and on the part of the Council and its officers. No Court has found these claims to be substantiated.
(c)He is almost a compulsive litigant, resorting to litigation whenever he considers the Council have not accorded with his often-strained interpretations of the RMA.
[125] All of these factors are present and clear in the three proceedings I have considered.
80 See, for example, Mawhinney v Waitakere City Council HC Auckland CIV-2008-485-1119, 19 February 2009 at [21]; and Mawhinney v Waitakere City Council HC Auckland CIV-1999-404- 1850, 20 June 2007 at [6] and [9].
[126] For the above reasons, the three proceedings are, by themselves, enough to justify my making an extended order under s 166.
[127] Mr Mawhinney has also been involved in many other cases against the Council, as can be seen from the Council’s Schedule B annexed to this judgment. In those cases, he has most often acted through companies. Because of the way ss 166 and 167 are drafted and the way the case was argued by the Council, as I said above, I have proceeded on the basis I should not take these directly into account in the first step under s 166.
[128] I do, however, consider those cases to be relevant (though not necessary) to deciding whether to exercise the discretion under s 167. Having read many of those cases, I can see Mr Mawhinney’s conduct in the proceedings I have discussed, is present in most of the cases he is involved in. He raises many unmeritorious points, and files hundreds of pages of submissions and evidence.
[129] In addition, as I have said, Mr Mawhinney’s bringing an application for strike-out in this proceeding, is further evidence of his tendency to bring litigation at “the drop of a hat”, with no regard to the cost to the Council or to the merits.
[130] As of the date of writing this decision, Mr Mawhinney has an application for judicial review against the Council pending before this Court, to which I referred under the general background section of this judgment. I have had the benefit of perusing his submissions. His statement of claim runs to 95 pages and 372 paragraphs. It is clear Mr Mawhinney continues to bring proceedings without concern for the considerable amount of money such proceedings cost the Council.
[131] Mr Mawhinney’s wider history of litigation with the Council reinforces my view that an order under s 166 is appropriate.
[132] Any question of law to be tried was resolved many years ago. Even if he can point to occasional successes on small points in his proceedings, this does not prevent a finding the proceedings as a whole were vexatious or totally without merit.81
81 Attorney-General v Hill (1993) 7 PRNZ 20 (HC) at [23].
[133] Taking all of this into account, I consider an extended order under s 166 to be appropriate.
[134] I consider that no lesser measure than an extended order is likely to be effective in preventing ongoing abuse of the Court’s processes by Mr Mawhinney.
Other matters raised by Mr Mawhinney
[135] Mr Mawhinney raises several technical points, which I consider have no substance, but I address them briefly below.
Retrospectivity of s 166
[136] Mr Mawhinney submits that the Senior Courts Act cannot have retrospective effect, relying on s 7 of the Interpretation Act 1999. He argues that, in considering whether to make a s 166 order, I may only consider proceedings commenced by him after the Senior Courts Act came into force, which was on 1 March 2017.82 This would exclude almost all of his previous proceedings.
[137] He says, in particular, that had he known his previous proceedings would be judged to be without merit, or stood to be so judged, he would have been even more vigorous in exercising his appeal rights. He cites the Fogarty Proceeding as an example of a case where he thought he had meritorious arguments, but did not appeal.
[138] I do not accept the argument as to lack of retrospectivity. When I consider past proceedings for the purposes of s 166, I am not changing the outcome of those decisions. I merely look to see whether they sufficiently meet the criteria to activate s 166. I consider the legislation contemplates that I may examine decisions preceding its enactment. I infer this from the words, “a Judge may make an extended order under section 166 if …. the Judge considers that the [two] proceedings are or were totally without merit”. “Were” implies I may examine proceedings that have come to an end, which would necessarily include proceedings that had come to an end as at the date the Act came into force. I note Dobson J, in Faloon v Planning Tribunal, admittedly
82 Senior Courts Act 2016, s 2(1).
without argument on the point, made an order under s 166 after considering a history of cases before the enactment of the Act.83
[139] I also consider it would defeat the purpose of s 166 if only proceedings issued after its enactment were able to be considered. The old law in the Judicature Act would not apply: it has been repealed. I do not consider that Parliament intended to give a general amnesty to vexatious litigants by giving them all a “clean slate”, as it were.
[140] As to Mr Mawhinney’s point that he may have changed his behaviour if he knew his proceedings would be so judged – for example, by bringing yet more appeals
– I do not regard this as a good argument. While s 166 was only recently enacted, New Zealand had a well-established vexatious litigant regime before then. The test under it was not so different than the present law. It has long been the case that a person cannot bring endless civil actions with impunity. Mr Mawhinney has not been disadvantaged by the change in law. I consider the outcome of this proceeding would have been no different under the old law.
Mr Mawhinney’s status as an undischarged bankrupt
[141] Mr Mawhinney submits that the Council has erred by not listing the Official Assignee as a party to this proceeding, and not serving this application on the Official Assignee. As an undischarged bankrupt, Mr Mawhinney says all his affairs are subject to the functions and powers of the Assignee.
[142] Mr Mawhinney cited no authority and I can find none that requires the Council to name the Official Assignee or serve the Official Assignee.
[143] Under s 77 of the Insolvency Act 2006, a creditor must not begin or continue an execution or other process in respect of the bankrupt’s property or person for the recovery of a debt provable in the bankruptcy. But this application is not an action for recovery of a debt.
83 Faloon v Planning Tribunal [2018] NZHC 2420.
[144] In the absence of any authority cited to me or that I can find, I can see no substance to this submission.
Anthony Harper not authorised to make this application
[145] Mr Mawhinney submits that neither the solicitors for the Council, Anthony Harper, “nor any functionary or other person” is authorised by the elected members of the Council or their chief executive to make an application under s 166.
[146]Again, Mr Mawhinney has cited no authority or support for this proposition.
[147] This seems to me to be a matter of internal delegation and powers, and not a point which Mr Mawhinney has standing to argue. In any event, I proceed on the basis that the Council has authority to bring the proceeding as filed. There is nothing to indicate to the contrary.
Counsel argument that Mr Mawhinney has no interest in the land
[148] The Council raises the point that Mr Mawhinney no longer has any interest in the Waitakere Property. They say he is not the registered proprietor and has no interest they can identify. The Council said this is relevant to considering whether Mr Mawhinney’s repeatedly bringing proceedings in relation to the land was proportionate to the cost to the Council. That is, they submit Mr Mawhinney will derive little benefit from his claims, even were they successful, because he no longer has an interest. Mr Mawhinney says he does still have an interest.
[149] It is difficult to discern the nature of Mr Mawhinney’s interest from his submissions. I gather he is the beneficiary of various trusts that hold options to purchase the land. The trustees seem to be companies controlled by his family members. I am left with the impression Mr Mawhinney has gone to great lengths to balance maintaining an interest in the land and keeping it out of the hands of the Official Assignee.
[150] I have not found it necessary to decide this point. I consider it is only marginally relevant, and a finding either way would not affect my decision.
Terms of the order
[151] Having decided an extended order under s 166 is appropriate, I must now consider the terms of the order.
[152] The Council originally proposed that I make an order restraining Mr Mawhinney and several named companies from commencing civil proceedings. But they subsequently withdrew the application in that form after Mr Mawhinney objected that this Court could not make an order against companies that were not named as parties to this proceeding, citing s 168 of the Act, which in turn would mean that a case would need to be proven against them. That appeared to me to be correct.
[153]The Council now seeks an order in the following terms:
Mr Mawhinney is restricted, in any capacity, including but not limited to as a trustee of any trust, from commencing or continuing any civil proceeding (or matter arising out of a civil proceeding), which relates in any way to the parcels of land contained in the identifiers set out in Schedule A for a period of five years.
[154] That order may possibly prevent Mr Mawhinney bringing proceedings in the name of corporate entities in any event, but as I understand it, the Council is unconcerned for the moment. It takes the view that in this case the combined effect of the bankruptcy and the s 166 order will be enough to stop Mr Mawhinney bringing or continuing further proceedings in any capacity. The Council says his being an undischarged bankrupt will prevent him from being a director of a company for some time, or for that matter from litigating in person. The Council’s particular concern is to stop Mr Mawhinney from litigating as a trustee, which it says might require the s 166 order.
[155] I consider the terms of the order as sought are appropriate, and in compliance with s 168 of the Act, but I need to address the length of the restraint.
[156] As can be seen, the Council asks that the order be made for a period of five years. Under s 168(2), an order made under section 166 may have effect for up to three years, as specified by the Judge. But the Judge making it may specify a longer
period, which must not exceed five years, if they are satisfied that there are exceptional circumstances justifying the longer period.
[157] The Council has not addressed me on whether there are “exceptional circumstances”.
[158] In the Report of the Ministry of Justice to the Justice and Electoral Committee, referred to above, the Ministry noted submissions that a Judge should be able to impose an order of a length they saw fit.84 However, the Ministry’s advice was that s 168(2) was intentionally drafted so as not to give Judges a “blank cheque”, as it were. The normal limit of up to three years was set, being sensitive to the important right to access justice contained in the New Zealand Bill of Rights Act.85
[159] Mindful of that, I have decided there are exceptional circumstances here. Mr Mawhinney has been litigating with the Council over this one issue for 25 years. Even in terms of the “qualifying proceedings”, these go back 13 years now. Coupled with all of the other factors, these are exceptional circumstances. A five-year restriction is minor by comparison.
[160]I therefore make an order in the following terms:
Peter William Mawhinney, in any capacity, including but not limited to as a trustee of any trust, is restrained from commencing or continuing any civil proceeding (or matter arising out of a civil proceeding) that relates in any way to the parcels of land contained in the identifiers set out in Schedule A to this judgment, for a period of five years.
Postscript
[161] Since the enactment of s 166, this Court is seeing more applications being made for these orders than under the old vexatious litigant regime. This is, I understand, what the legislature intended.
84 Judicature Modernisation Bill: Report of the Ministry of Justice to the Justice and Electoral Committee (Ministry of Justice, Departmental Report CRT-09-04-07, April 2014) at [298].
85 At [300].
[162] I note that in the United Kingdom where there is a provision similar to s 166, when a Judge strikes out or dismisses a case they must record if it is totally without merit.86 Consideration might be given to adopting this practice here. Such a note would make it considerably easier for a Judge faced with an application under s 166 to determine whether the threshold to make an order is met.
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Hinton J
86 Civil Procedure Rules 1998 (UK), rr 3.3(7), 3.4(6) and 23.12.
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