Hill v The Queen

[2019] NZHC 1868

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-1018A

[2019] NZHC 1868

BETWEEN

FREDRICK HILL

Plaintiff

AND

THE CROWN

First Defendant

THE ATTORNEY-GENERAL
Second Defendant

THE MĀORI LAND COURT
Third Defendant

THE WAITANGI TRIBUNAL

Fourth Defendant

DEPARTMENT OF CONSERVATION

Fifth Defendant

CIV-2017-485-1018B

BETWEEN

FREDRICK HILL
Plaintiff

AND

THE CROWN

First Defendant

THE ATTORNEY-GENERAL
Second Defendant

THE MĀORI LAND COURT
Third Defendant

THE TARARUA DISTRICT COUNCIL

Fourth Defendant

Hearing: On the papers

HILL v THE CROWN [2019] NZHC 1868 [2 August 2019]

Counsel:

Plaintiff in Person

G L Melvin and J B Watson for First and Second Defendants G Shaw for Third Defendant (in – 1018B)

D J Neutz for Fourth Defendant (in – 1018B)

Judgment:

2 August 2019

JUDGMENT OF CLARK J

Introduction

[1]                  In my judgment delivered 14 May 2019, I granted the first and second defendants’ application to strike out the statement of claim in CIV-2017-485-1018A and granted the defendants’ application to strike out the claim in CIV-2017-485- 1018B.1

[2]                  In my judgment delivered 26 June 2019, I dismissed Mr Hill’s application for recall and awarded scale costs to each defendant in accordance with the sums claimed as set out at [3] of that judgment.2

[3]                  On 30 July 2019, Mr Hill filed an application for leave to appeal both decisions. Having considered Mr Hill’s application, I decided it was able to be determined on the papers without hearing from the respondents. Accordingly, no response has been sought from the respondents.

Application for leave to appeal

[4]The specific grounds upon which Mr Hill seeks leave to appeal are:

(i)A right of appeal exists for the first decision dated 14 May 2019 pursuant to section 56(4) Senior Courts Act 2016 and leave is required for the second decision dated 26 June 2019 pursuant to section 56(3) Senior Courts Act 2016. That is both decisions relate to concurrent evidence and events.

(ii)The Respondent parties will not suffer prejudice as the decisions have effectively removed the obligation to answer to the declarations and

1      Hill v The Crown [2019] NZHC 691 [Substantive decision].

2      Hill v The Crown [2019] NZHC 1464 [Costs decision].

claims made even although the argument in defence was based on ‘contested’ facts and law.

(iii)The Plaintiff continues to suffer significant prejudice and delay to resolving some long outstanding matters some of which show cause as to an abuse of process or where irrefutable facts in judgment have been denied.

[5]Mr Hill includes the following “other factors”:

(iv)Some administrative matters causing delay including the late filing by the Crown on a memoranda as to fees to decision 14 May 2019.

(v)The advice sent the Registrar within five working days of 14 May 2019 decision that aspects in relation to details of the judgment were questioned by the Plaintiff.

(vi)The timely response made by the Plaintiff in all instances where required to respond or make application.

(vii)Matters of concern in which said judgments inferred appeal to the Court of Appeal as the best avenue to pursue claims made.

(viii)Respondent parties have had ample time in which to respond to filings by the Plaintiff.

(ix)Filings by the Plaintiff seeking recall indicate grounds and evidence on balance that ought to be admitted to the Court of Appeal for a determination.

Assessment

[6]                  Mr Hill does not require leave to appeal against the substantive decision, as that decision struck out the whole of a proceeding.3 Mr Hill can simply appeal that decision as of right, as he observes in his grounds for seeking leave. Leave is, however, required for Mr Hill to appeal the costs decision, that being “a decision of the High Court made on an interlocutory application”.4

[7]                  In two relatively recent decisions the Court of Appeal addressed the s 56(3) requirement for leave.5

3      Senior Courts Act 2016, s 56(4).

4      Section 56(3).

5      Ngāi Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 [Ngāi Te Hapu]; and

Fairway Holdings Ltd v McCullagh [2018] NZCA 605.

[8]                  In Ngāi Te Hapu, the Court of Appeal declined to provide definitive guidance as to the principles to be applied because that particular case was not the occasion for doing so. In both decisions the Court of Appeal referred to Finewood Upholstery Ltd v Vaughan (one of the first decisions under the newly enacted s 56 appeal provision), noting Fitzgerald J’s observation that the requirement for leave to appeal serves as a “filtering mechanism” to ensure unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.6

[9]                  The Court of Appeal also referred to Fitzgerald J’s summary of the observations of Dobson J in A v Minister of Internal Affairs:7

(a)A high threshold exists for the granting of leave. An allegation of error of law or fact is generally insufficient. An applicant should raise an arguable error.

(b)Leave should only be granted where the circumstances warrant incurring further delay.

(c)The alleged error should be of general or public importance that requires determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.

[10]              Drawing together the threads from the Court of Appeal decisions and the High Court authorities to which they refer:

(a)Leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay that the appeal process would involve.8

(b)The object of regulating the volume of non-substantive appeals does not, however, preclude the grant of leave where the interests of justice

6      Ngai Te Hapu, above n 5, at [12], citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

7      Finewood Upholstery Ltd v Vaughan, above n 5, at [9], citing A v Minister of Internal Affairs

[2017] NZHC 887.

8      Ngāi Te Hapu, above n 5, at [17].

warrant further consideration by the Court of Appeal.9 Guidance on the relevant principles might be drawn from former s 71A of the District Courts Act 1947:10

The purpose of [leave] is to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the High Court, while preserving the integrity of the law and the interests of justice.

[11]              Mr Hill’s application for leave to appeal falls short of the high threshold to be met by an applicant for leave to appeal.

[12]              The application for leave to appeal fails to allege any error of law or fact in relation to Mr Hill’s recall application or his opposition to costs. Nor can I identify any arguable error in my decision with respect to either of those matters. Mr Hill’s grounds for seeking leave all concern the substantive decision, or concern matters that could be addressed on an appeal of the substantive decision. If Mr Hill wishes to pursue those grounds, he can do so by filing a notice of appeal with the Court of Appeal.

Result

[13]The application for leave to appeal is dismissed.

[14]I make no order as to costs.

Karen Clark J

Solicitors:

Crown Law Office, Wellington

9      Fairway Holdings Ltd, above n 5, at [14].

10     At [14], citing Somers J in Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.