Green v Watercare Services Limited

[2012] NZHC 2890

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000046 [2012] NZHC 2890

BETWEEN  WILLIAM JAMES GREEN First Applicant

ANDGREEN ENVIRONMENTAL LIMITED Second Applicant

ANDWATERCARE SERVICES LIMITED Respondent

Hearing:         On the papers

Counsel:         N Cooke for Appellants

AM Adams and H Yiu for Respondent

Judgment:      2 November 2012

JUDGMENT OF ASHER J (Leave to appeal)

This judgment was delivered by me on Friday, 2 November 2012 at 2pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

N Cooke, PO Box 47 649, Ponsonby, Auckland 1144. Email:  [email protected]
Meredith Connell, DX CP 24063, Auckland 1140.

Email:  [email protected] and  [email protected]

GREEN V WATERCARE SERVICES LTD HC AK CRI-2012-404-000046 [2 November 2012]

Introduction

[1]      On 7 September 2012 I delivered a judgment dismissing the first and second applicants’ appeal against the decision of the District Court convicting them both in relation to a discharge into a sewer.

[2]      On 2 October 2012 the first and second applicants filed a notice of intention to apply for leave to appeal that decision to the Court of Appeal.  The time to lodge such an application had expired on 1 October 2012.   The applicants sought an extension of time to file their application.

[3]      The applicants propose that the following questions would be determined on appeal:

(a)      Does domestic septic tank waste fit within the definition of “trade waste” for the purposes of s 5 of the Auckland Regional Council Trade Wastes Bylaw 1991?

(b)Is a vacuum truck “trade premises” for the purposes of ss 77 and 83 of the Auckland Metropolitan Drainage Act 1960?

(c)      Is the hose of a vacuum truck, which extends to near or even inside a manhole, a “trade wastes drain” and “connected” within the meaning of s 77(1) of the Auckland Metropolitan Drainage Act?

[4]      The respondent Watercare Services Ltd opposes the application for leave.  It submits that the appeal points do not involve questions of law and are not of general or public importance.

Legal framework

[5]      Section 144(1) of the Summary Proceedings Act 1957 applies.  The appeal can only be on a question of law. The High Court may grant leave if there is:

(a)      a question of law;

(b)the question is one that, by reason of its general and public importance or any other reason, ought to be submitted to the Court of Appeal; and

(c)      the Court is of the opinion that it ought to be so submitted.

[6]      The Court of Appeal observed in R v Slater:[1]

Section 144 was not intended to provide a second tier of appeal from decisions   of   the   District   Court   in   proceedings   under   the   Summary Proceedings Act.   Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted.  Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

[1] R v Slater [1997] 1 NZLR 211(CA) at 215.

[7]      The Court does not therefore readily grant leave to appeal on these matters. There has already been one tier of appeal utilised, and to accept too readily an ability to appeal to the next tier is undesirable.   The dominant question is whether the question of law that is raised is of such public or general importance that it ought to be submitted to the Court of Appeal.

Discussion

[8]     There is undoubtedly a legal aspect to these questions, but they are predominantly  matters  of  fact.    They  concern  whether  certain  actions  of  the applicants fell within certain definitions or phrases in the Auckland Regional Council Trade Wastes Bylaw 1991 and the Auckland Metropolitan Drainage Act 1960.

[9]      There are not of any general public importance.  The bylaws and the sections have stood for many years without giving rise to any legal problems.  The Auckland Regional Council Trade Wastes Bylaw will expire whenever the Auckland Council makes a new regional trade wastes bylaw, or on 1 July 2015 whichever is the earlier, pursuant to s 25(3) of the Local Government (Auckland Transitional Provisions) Act

2010.   The bylaw making powers under the Auckland Metropolitan Drainage Act

that are said to be at issue in relation to the second appeal point have been wholly repealed pursuant to s 114 of the Local Government (Auckland Transitional Provisions) Act.  Thus, such questions of law that arise are unlikely to have practical significance.

[10]     I must also observe that the case against the applicants was a very strong one. The arguments raised are technical and of little intrinsic merit.

[11]     In all the circumstances I do not consider that there is any question of law of general or public importance raised.

Result

[12]     I  am  prepared  to  grant  an  extension  of  time  as  the  delay  in  filing  the application for leave was only a matter of one day.

[13]     I decline to grant leave to appeal for the reasons given.

……………………………..

Asher J