Faloon v Planning Tribunal at Wellington - [2020] NZCA 361

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA604/2018
[2020] NZCA 361

BETWEEN

CLARENCE JOHN FALOON
Appellant

AND

THE PLANNING TRIBUNAL AT WELLINGTON
First Respondent

THE ATTORNEY-GENERAL SUED ON BEHALF OF PALMERSTON NORTH JOINT VENTURE AIRPORT
Second Respondent

THE ATTORNEY-GENERAL SUED ON BEHALF OF MINISTER OF LANDS
Third Respondent

THE CLERK OF THE EXECUTIVE COUNCIL
Fourth Respondent

THE HIGH COURT OF NEW ZEALAND (TAURANGA REGISTRY)
Fifth Respondent

THE ATTORNEY-GENERAL SUED ON BEHALF OF THE COMMISSIONER OF INLAND REVENUE
Sixth Respondent

Court:	Kós P, Clifford and Courtney JJ
Counsel:	Appellant in person V McCall and A P Lawson for Third, Fourth and Sixth Respondents
Judgment: (On the papers)	24 August 2020 at 3 pm

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Mr Faloon applies for recall of this Court’s judgment in Faloon v Planning Tribunal at Wellington.[1] In it we dismissed Mr Faloon’s appeal against a decision of Dobson J in the High Court at Palmerston North striking out his statement of claim and making a limited restraint order under s 166 of the Senior Courts Act 2016 restricting Mr Faloon or any agent purporting to act on his behalf from commencing any civil proceeding which relates in any way to his adjudication as a bankrupt, or to claimed interests in, or rights arising from, former ownership of land adjoining Palmerston North Airport by Trade Lines Ltd, this order to have effect for a period of five years.[2]
[1]Faloon v Planning Tribunal at Wellington [2020] NZCA 170 [Court of Appeal judgment]. Mr Faloon also seeks to recall two interlocutory applications dated 10 September 2019 and 4 December 2019, declined at [27] of the Court of Appeal judgment.
[2]Faloon v Planning Tribunal [2018] NZHC 2420 [High Court judgment] at [17] and [24]–[25].
Mr Faloon now seeks to recall the judgment of this Court, raising 15 grounds in his application. Some of these grounds are procedural — relating to alleged non‑compliance with r 51 of the Court of Appeal (Civil) Rules 2005, in respect of the subject matter of the judgment, the parties to the judgment, the annexure of a table of cases involving Mr Faloon to the judgment and the sending of the judgment to counsel for Palmerston North Airport Ltd, a non-party to the appeal. Other grounds are substantive — including reliance on inadmissible evidence (by reason of the Evidence Act 2006 and the Parliamentary Privilege Act 2014), use of the term “invalid delegation”,[3] a claim for judicial review in relation to the divestment of the Palmerston North land, a failure to determine Mr Faloon’s rights as a mortgagee, the potential operation of s 51 of the Public Works Act 1981 as a statutory estoppel in relation to the divestment of the Palmerston North land, lack of protection to the parties at law, failure to rehear the appeal in TCP11/1987,[4] the Attorney-General’s omission of relevant authorities and erroneous references to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZCA 361
Decision Date: 24 August 2020 at 3 pm

CaseChat Overview and Summary

Clarence John Faloon has applied for recall of the Court of Appeal's judgment in Faloon v Planning Tribunal at Wellington. The Court dismissed Mr Faloon's appeal against a decision of the High Court, which struck out his statement of claim and made a limited restraint order restricting him from commencing civil proceedings relating to his adjudication as a bankrupt or to interests in land adjoining Palmerston North Airport. Mr Faloon raised 15 grounds for recall, some procedural and some substantive, and sought an award of costs against the fourth respondent. The Court of Appeal found that Mr Faloon had not identified any amendments to relevant statutes or regulations, new decisions of relevance and "high authority", or a failure to direct the Court's attention to a legislative provision or authoritative decision of plain relevance. The Court found that the application to recall was vexatious and declined it. There was no possible basis for Mr Faloon to be awarded costs as his appeal was wholly unsuccessful.

The legal issues in this case were whether the Court of Appeal's judgment should be recalled and whether Mr Faloon was entitled to an award of costs. The Court of Appeal considered the grounds for recall and found that none of them satisfied the test for recall. The Court found that Mr Faloon's application was vexatious and declined it. The Court found that there was no possible basis for Mr Faloon to be awarded costs as his appeal was wholly unsuccessful.

The Court of Appeal found that the application for recall was vexatious and declined it. The Court found that none of the grounds for recall satisfied the test for recall. The Court found that the principles in r 51 apply to the formal judgment, but not to the reasons for judgment delivered by the Court. The table attached to the judgment formed part of the judgment and is not extraneous. The transmission of a copy of the judgment to counsel for a non-party was an error without consequence. The Court found that there was nothing in the grounds for recall identified by Mr Faloon that suggests for some other very special reason justice requires that the judgment be recalled. The Court found that the application to recall was vexatious and declined it. The Court found that there was no possible basis for Mr Faloon to be awarded costs as his appeal was wholly unsuccessful.

The Court declined the application for recall and ordered that the costs of the application be paid by Mr Faloon. The Court found that the application for recall was vexatious and declined it. The Court found that there was no possible basis for Mr Faloon to be awarded costs as his appeal was wholly unsuccessful. The Court ordered that the costs of the application be paid by Mr Faloon.

Orders