Cowlishaw v Auckland Regional Council HC Auckland CRI-2010-404-436

[2011] NZHC 108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-436

BARRY COWLISHAW

Appellant

v

AUCKLAND REGIONAL COUNCIL

Respondent

Hearing:         22 February 2011

Counsel:         ??? for the Appellant

R Enright for the Respondent

Judgment:      22 February 2011

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr B Cowlishaw, Auckland

Mr R Enright, Kirkland Enright, Solicitors, Auckland

COWLISHAW V AUCKLAND REGIONAL COUNCIL HC AK CRI-2010-404-436 22 February 2011

[1]      Mr Cowlishaw laid  a private information  against  the Auckland  Regional Council (now Auckland Council).  The charge in the information was that ―between January 2004 and January 2010 [the Council] did commit an offence against section

116 of the Crimes Act 1961 [in that it] conspired to pervert the course of justice plural‖.  The charge, as was required, was laid indictably.  The respondent applied to stay or dismiss the proceeding.

[2]      In  an  oral  decision  on  19  October  2010  Judge Taumaunu  dismissed  the information.    There  were  two  essential  alternative  grounds.    The  first  was  a conclusion that the information was a nullity on the grounds that it did not disclose an offence; one person cannot conspire alone.   The Judge also concluded that the summons to the respondent had been issued to the respondent without exercise of the judgment required by s 150 of the Summary Proceedings Act 1957.

[3]      Mr Cowlishaw, who has appeared on his own behalf throughout, indicated in the course of the hearing before the Judge that others were involved with the Council and, I understand, that there may have been reference to the Department of Conservation. The Judge said that he would not exercise any discretion to amend the information in any event.   In this regard I do note Mr Cowlishaw’s responsible advice to me in the course of dictating this oral judgment that he did not in fact make a formal application for amendment.  In that regard I would simply refer to s 152 of the Summary Proceedings Act, but without need for elaboration for reasons which will emerge in a moment.

[4]      Mr Cowlishaw’s appeal is a notice of general appeal purportedly pursuant to s 115 of the Summary Proceedings Act. As I have explained to Mr Cowlishaw, there is no jurisdiction for an informant to exercise the general right of appeal provided for in s 115.  As s 115(1) makes clear, this right of general appeal is available to the defendant.

[5]      An informant (and indeed a defendant) does have the right of appeal by way of case stated provided in s 107of the Summary Proceedings Act.  But in this case that is not the procedure that was adopted.  In addition, and as I think Mr Cowlishaw

had anticipated, there is a time limit of 14 days for the informant to apply to the District Court to state a case.  The question of jurisdiction that I have just mentioned has earlier been considered: see for example Bright v Key[1] and de Montalk v Hobbs.[2]

[1] Bright v Key [2009] NZAR 532.

[2] de Montalk v Hobbs HC AK, A24/00, 12 July 2000, Anderson J.

[6]      As a consequence I am bound to dismiss the appeal for want of jurisdiction.

[7]      I would also note, and as discussed with Mr Cowlishaw, apart from an appeal by way of case stated (and where the appeal must be limited to a question of law) there is the possibility of an application for judicial review.

[8]      At  the commencement  of the hearing  I was  able to  have  a  constructive discussion with Mr Cowlishaw about his underlying concerns.  When he lodged his notice of appeal he helpfully provided an appendix setting out what did appear to be the underlying concern of substance, and Mr Cowlishaw confirmed to me this morning that my understanding was correct.

[9]      The fundamental concern Mr Cowlishaw has relates to the Whatipu Scientific Reserve which Mr Cowlishaw says has become overrun with gorse.  Sections 21(1) and (2) of the Reserves Act 1977 provide as follows:

21       Scientific reserves

(1)       It is hereby declared that the appropriate provisions of this Act shall have effect, in relation to reserves classified as scientific reserves, for the purpose of protecting and preserving in perpetuity for scientific study, research, education, and the benefit of the country, ecological associations, plant or animal communities, types of soil, geomorphological phenomena, and like matters of special interest.

(2)       It  is  hereby  further  declared  that,  having  regard  to  the  general purposes specified in subsection (1) of this section, every scientific reserve   shall   be   so   administered   and   maintained   under   the appropriate provisions of this Act that—

(a)       Except   where   the   Minister   otherwise   determines,   the indigenous flora and fauna shall as far as possible be preserved and the exotic flora and fauna shall as far as possible be exterminated:

…

[10]     Mr Cowlishaw is concerned that the Auckland Regional Council was bound by and failed to meet statutory obligations contained in these provisions in respect of an infestation of gorse.

[11]     I make no comment on Mr Cowlishaw’s contentions one way or the other. They may be right; they may be wrong.  It is not for this Court in a proceeding of this nature to seek to assess the merit of the contentions, let alone when – as I have already indicated – there is no technical jurisdiction.  What I do wish to record is the essence of what Mr Cowlishaw and I discussed earlier.  And I do emphasise that these are simply observations and do not constitute any formal decision of this Court.  If the Council has failed to meet statutory obligations under s 21 it is unlikely that this will give a private citizen a right of action for breach of the statutory duty, let alone a right to bring a private information for a criminal offence. As I suggested to Mr Cowlishaw, if he wishes to pursue this matter further his best course in the first instance  may  be  to  refer  it  to  the  Minister  of  Conservation,  as  the  Minister responsible for the Reserves Act.  I understand from Mr Cowlishaw that this is not a step he has taken.  No doubt there are other courses of action open.

[12]     I have probably said as much as I should, save for one other observation.  I would expect that the Council, if it has not done so already, and if it has the legal obligation, will take appropriate steps as may be required by law in respect of any matters at the Whatipu Reserve which require attention.

[13]     The  formal  decision,  for  the  reasons  earlier  stated,  is  that  the  appeal  is dismissed for want of jurisdiction.

[14]     Costs were not sought by the respondent and there is no order for costs.

Peter Woodhouse J