Faloon v Planning Tribunal at Wellington

[2019] NZCA 236

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA685/2018
 [2019] NZCA 236

BETWEEN

CLARENCE JOHN FALOON First Applicant CLARENCE JOHN FALOON, SUING IN A REPRESENTATIVE CAPACITY Second Applicant

AND

PLANNING TRIBUNAL AT WELLINGTON First Respondent ATTORNEY-GENERAL SUED ON BEHALF OF PALMERSTON NORTH JOINT VENTURE AIRPORT Second Respondent ATTORNEY-GENERAL SUED ON BEHALF OF MINISTER OF LANDS Third Respondent CLERK OF THE EXECUTIVE COUNCIL Fourth Respondent HIGH COURT OF NEW ZEALAND (TAURANGA REGISTRY) Fifth Respondent ATTORNEY-GENERAL SUED ON BEHALF OF THE COMMISSIONER OF INLAND REVENUE Sixth Respondent

Court:	French and Stevens JJ
Counsel:	First and Second Applicants in person V McCall and A P Lawson for Third, Fourth and Sixth Respondents
Judgment: (On the papers)	19 June 2019 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to appeal the decision of the High Court dated 19 September 2019 is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

1. Mr Faloon filed a claim in the High Court.  In a judgment dated 13 September 2018, Dobson J struck the claim out as an abuse of process.[1]  The Judge also made a limited civil restraint order under s 166 of the Senior Courts Act 2016.[2]  Mr Faloon then asked the Judge to set aside his strike out order and to make an order suppressing publication of the judgment on the grounds of irregularity.  In a minute dated 19 September 2018, the Judge declined to do either of those two things.[3]

   [1]Faloon v Planning Tribunal [2018] NZHC 2420.

   [2]At [24].

   [3]Faloon v Planning Tribunal HC Palmerston North CIV-2018-454-77, 19 September 2019.

2. Having failed to obtain leave in the High Court to appeal Dobson J’s minute of 19 September 2018, Mr Faloon filed an application for leave to appeal that minute in this Court under s 56(5) of the Senior Courts Act.[4]  It is that application which is the subject for determination by us on the papers.[5]

   [4]Faloon v Planning Tribunal HC Palmerston North CIV-2018-454-77, 2 October 2018.

   [5]Mr Falloon has also filed an appeal against Dobson J’s judgment of 13 September 2018.  That is an appeal as of right and is yet to be heard.

3. In support of his application for leave to appeal, Mr Faloon says there were   irregularities which prompted him to ask Dobson J to set aside his judgment.  The first alleged irregularity is that contrary to r 5.35B(3) of the High Court Rules 2016 the judgment did not contain a statement of his right to appeal against the decision, secondly, that the heading of the judgment did not comply with r 5.12 of the High Court Rules in that it failed to identify the dual capacities in which he sues, and thirdly the Judge misapplied r 5.18 which requires any denial of a representative character to be specific.

4. In our view, Mr Faloon’s application falls well short of meeting the high threshold for obtaining leave.  The arguments he wishes to advance at the proposed appeal are not tenable.  None of the alleged errors would have warranted the judgment being set aside and therefore there is no prospect of this Court being persuaded to quash Dobson J’s minute on appeal.

5. We also consider the application for leave is an indirect attempt to challenge the substantive merits of the judgment of 13 September 2018.  However, there is already an extant appeal filed as of right by Mr Faloon against that judgment. The hearing of that appeal is the proper forum for those issues to be canvassed. 

6. We are satisfied it would not be in the interests of justice for leave to appeal to be granted.  It is accordingly declined.

Solicitors:
Crown Law Office, Wellington for Third, Fourth and Sixth Respondents