Faloon v Public Trust HC Tauranga CIV-2010-470-000052
[2011] NZHC 2101
•20 December 2011
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2010-470-000052
UNDER the Trustee Act 1956
IN THE MATTER OF an application under ss 66, 67 and 68 of the Act in the ESTATE OF THOMAS JOHN FALOON
BETWEEN CLARENCE JOHN FALOON First Applicant
ANDRUTH ENID FALOON Second Applicant
ANDTHREE TRUSTEES IN THE 1977-YEAR DIVERSION OF THE KAWAU STREAM TRUST
Third Applicant
ANDPUBLIC TRUST Respondent
Hearing: 6 December 2011
Counsel: First Applicant in person
HGP Stokes for Respondent
Judgment: 20 December 2011
JUDGMENT OF ASHER J
This judgment was delivered by me on Tuesday, 20 December 2011 at 4.30pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Public trust, DX GX10100, Hamilton. Email: [email protected]
Copy to:
CJ Faloon, 43B Twentieth Avenue, Tauranga 3112. Email: [email protected]
FALOON V PUBLIC TRUST HC TAU CIV-2010-470-000052 [20 December 2011]
Introduction
[1] Clarence John Faloon and Ruth Enid Faloon seek leave to appeal from decisions of Duffy J delivered on 15 August 2011 and 1 September 2011.1 In the first she declined to grant a review of a decision of Associate Judge Doogue of
30 September 2010 striking out this proceeding.2 In the second she ordered costs
against the Faloons.
Background
[2] There have been at least 10 proceedings instigated by Mr Faloon since 1996.3
There were other proceedings instigated earlier. They all concern two central events. The first was the carrying out of a pipe diversion of the Kawau stream and the second a taking of a portion of land owned by Trade Lines Ltd by the Crown for the purposes of the Palmerston North airport in 1993. In a judgment I delivered on
21 August 20094 I referred to 15 judgments that had been delivered in relation to
claims by Mr Faloon and there have been more since. Court records show that Mr Faloon has filed 54 interlocutory applications, all of which have been dismissed save for some adjournment applications and applications for leave to use affidavits
from other proceedings.
1 Faloon v Public Trust HC Tauranga CIV-2010-470-52, 15 August 2011; Faloon v Public Trust
HC Tauranga CIV-2010-470-52, 1 September 2011.
2 Faloon v Public Trust HC Auckland CIV-2010-470-52, 30 September 2010.
3 Bank of New Zealand v Faloon HC Wellington M354/96, 18 October 1996; Faloon v District
Land Registrar and Palmerston North Airport Limited (No 1) HC Wellington M453/96, 6 March
1997; Traveller and Fatupaito as liquidators of Trade Lines Ltd v Faloon HC Wellington M137/97, 1 May 1997; Faloon and Piesse v District Land Registrar [1997] 3 NZLR 498 (HC); Trade Lines Ltd (in liq) v Piesse HC Wellington M181/97, 20 May 1997; Trade Lines Ltd (in liq) v Faloon, Piesse and District Land Registrar HC Wellington M195/97, 27 May 1997; Faloon v Attorney-General HC Wellington CP310/99, 5 October 2000; Faloon v Attorney- General CA255/00, 23 July 2001; Faloon v Trade Lines Ltd (in liq) CA121/97, 13 December
2001; Faloon v Commissioner of Inland Revenue (2002) 20 NZTC 17,618 (HC); Faloon v Commissioner of Inland Revenue (2005) 22 NZTC 19,653 (HC); Commissioner of Inland Revenue v Central Equipment Co Ltd (2006) 22 NZTC 19,891 (HC); Central Equipment Co Ltd v Commissioner of Inland Revenue [2007] NZCA 468, (2008) 23 NZTC 21,722; Central Equipment Co Ltd v Commissioner of Inland Revenue (No. 2) [2008] NZCA 42, (2008) 23
NZTC 21,861; Central Equipment Co Ltd v Commissioner of Inland Revenue (2008) 23 NZTC
21,965 (HC).
4 Faloon v Commissioner of Inland Revenue HC Rotorua CIV-2009-470-319, 21 August 2009.
[3] The Public Trustee administered the estate of Mr Faloon’s father Thomas John Faloon. His father had left a will dated 10 May 1974 and died on 8 April 1977. He left a life interest in his estate to his wife who died in 1992. Final accounts of the estate were issued to the residuary beneficiaries by letters dated 11 March 1993.
[4] In this proceeding the Faloons seek remedies against the Public Trust. In his decision of 30 September 2010 Associate Judge Doogue analysed the various causes of action. He found that the causes of action were confused and unintelligible and that they appeared to be time-barred. He found that there were no reasonably arguable causes of action.
[5] Duffy J in her decision of 15 August 2011 considered Associate Judge Doogue’s decision. She was satisfied that there was every reason to strike out the proceeding. There was no foundation for the claims. In her decision of 1 September
2011 she considered the question of costs and awarded costs on a 2B basis to the Public Trust of $7,144 together with disbursements of $481. The Faloons seek leave to appeal from both.
Approach
[6] Section 26P(1AA) of the Judicature Act 1908 provides that the determination of the High Court on a review of a decision of an Associate Judge is final, unless the High Court gives leave (or the High Court refuses leave, but the Court of Appeal gives special leave) to appeal from it to the Court of Appeal.
[7] The principles to be applied to applications for leave to appeal from a determination of the High Court on a review of a decision of an Associate Judge are as for a second appeal under s 67 of the Judicature Act.5 The leading authorities are
Waller v Hider6 and Snee v Snee.7 The appeal must raise some question of law or
fact capable of bona fide and serious argument in a case involving some interest,
5 See Gregory v Gollan HC Auckland CIV-2005-404-3485, 4 July 2007 at [6].
6 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
7 Snee v Snee [1999] 13 PRNZ 609 (CA) at [22].
public or private, of sufficient importance to outweigh the cost and delay of the further appeal. The Court of Appeal observed in Waller v Hider:8
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
When the disputed matter is entirely or largely a question of fact the task of the applicant … is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance. …
Analysis
[8] Associate Judge Doogue in his analysis noted a point that arises in most of the judgments already referred to relating to Mr Faloon. Mr Faloon has a deep sense of grievance about the diversion of the stream and the acquisition of the land. However, neither Mr nor Mrs Faloon have owned the stream or land in question, or do so today.
[9] It has been a pattern of Mr Faloon’s recent proceedings that, having exhausted claims against the parties who were primarily involved in the relevant transactions, he now pursues peripheral parties who have had some connection with his father’s estate, or have been connected to actions that he has contrived to take long after the events in question. An example is the application for an extension of time to respond to the Commissioner of Inland Revenue’s statement of position pending the Commissioner being prepared to discuss the issues arising from it, which I found to be directed at the re-litigation of his long-standing dispute with the
government about compensation and the pipelines.9
[10] In this application for leave he has, as he has done in other proceedings,10
argued his substantive complaints about the family rights in respect of the Kawau stream rather than the particular issues arising on the pleadings. The pleading in the
8 At 413.
9 See Faloon v Commissioner of Inland Revenue HC Rotorua CIV-2009-470-319, 21 August 2009 at [18].
10 Faloon v Commissioner of Inland Revenue HC Rotorua CIV-2009-470-319, 21 August 2009 at
[15]; Faloon v Commissioner of Inland Revenue (2005) 22 NZTC 19,653 (HC).
present case consists largely of a recital of past facts and events of no apparent relevance and from which no perceptible cause of action arises.
[11] Focussing on the judgment of Duffy J, the subject of this application, there is no point of law that emerges of any importance. It is a decision relating to the issues that arise in the pleadings and the reasoning of Associate Judge Doogue. She concludes that the Associate Judge had every reason to strike out the proceeding. His consideration related to matters of fact or various provisions relied on by Mr Faloon, but not to any significant issues of law.
[12] Mr Faloon, while he frequently refers to legislative provisions and authorities, has not been able to point to any substantive issue of law that arises on either Duffy J’s decision or that of Associate Judge Doogue. They are both decisions made in relation to unintelligible and misconceived proceedings.
[13] I have not been able to discern any basis upon which any issue of law may be seen as arising, or any point of public or private importance. The cost and delay of a further appeal cannot be in any way justified. Any appeal would be without realistic hope of success or benefit. It would waste valuable judicial resources in the Court of Appeal
[14] Precisely the same considerations relate to the costs appeal. Costs followed the event. In favour of Mr Faloon, Duffy J refused to order indemnity costs. No point of law arises. Leave will be declined.
Costs
[15] The Public Trust seeks costs. Mr Faloon opposes.
[16] After Mr Faloon applied for leave to appeal from the determination of
15 August 2011 the Public Trust filed a notice of opposition. It then filed a memorandum withdrawing its opposition. At [4] of its memorandum it recorded that while it took the view that the application lacked merit, it did not want to oppose leave being granted as it sought to minimise the costs that were being incurred by it.
The Public Trust anticipated that if the application for leave to appeal to the Court of Appeal was successfully opposed, this would result only in a further application to the Court of Appeal.
[17] Duffy J considered this matter and issued a minute on 13 October 2011.11
She noted that the Public Trust had withdrawn its opposition to the application but that it did not necessarily follow that leave should be granted. She pointed out that it was for the applicant to persuade the Court that leave should be granted. She observed at [5]:
Given that the Public Trust is no longer opposing the application, it may be possible for me to deal with it on the papers. However, I am not prepared to deal with it in this way until I know what the applicants’ stance is.
[18] Duffy J also stated that the applicants could elect to proceed with the matter on the papers if they wished. If so, she invited the Faloons to file a memorandum advising the Court in clear terms whether the application for leave to appeal should be dealt with on the papers or at a hearing.
[19] The Faloons did file a response dated 27 October 2011. Mr Faloon asked for a hearing and stated that he had filed an amended interlocutory application for leave to appeal and an affidavit by him in support of the application. He stated that he would serve these on the Public Trustee. He then also filed an application for leave to cross-examine Mr O’Dea. That application has already been dealt with in a
separate judgment during the course of the hearing of this application.12
[20] Mr Stokes now seeks costs and asks for indemnity costs. Mr Faloon responded that Mr Stokes did not need to appear today, given that the Public Trust had withdrawn its opposition. To this Mr Stokes responded that it was necessary for him to appear today given the request on Mr Faloon’s part that he be able to cross- examine Mr O’Dea. I have no doubt also that he felt that he should appear as a
courtesy to the Court.
11 Faloon v Public Trust (Minute (No 3) of Duffy J) HC Tauranga CIV-2010-470-52, 13 October
2011.
12 Faloon v Public Trust HC Tauranga CIV-2010-470-52, 6 December 2011
[21] I am most grateful to Mr Stokes for appearing. His opposition to the application to cross-examine Mr O’Dea was successful. I have not awarded costs in relation to that particular matter. On an overview, I consider that the appearance today of the Public Trust was appropriate given the amended application that had been served, Mr Faloon’s insistence on a hearing, although he had the option to have the case heard on the papers, and his wish to cross-examine Mr O’Dea. I consider that the Public Trust should receive costs. I would have considered indemnity costs were it not for the circumstance that the Public Trust had indicated earlier that it would not oppose the application, albeit for cost saving reasons.
[22] I have concluded that the appropriate costs award is costs in favour of the
Public Trust on a 2B basis.
Further action
[23] I direct the Registrar to forward a copy of this judgment to the Attorney- General for consideration of the question whether application should be made under s 88B of the Judicature Act, which allows for restrictions on the institution of vexatious actions.
Summary
[24] The application for leave to appeal from the decision of Duffy J of 15 August
2011 is declined.
[25] The application for leave to appeal from the costs decision of Duffy J of
1 September 2011 is declined.
[26] The applicants are to pay costs to the respondent on this application on a 2B
basis.
……………………………..
Asher J
0
4
1