Hunter v Auckland Council
[2021] NZCA 195
•17 May 2021 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA451/2020 [2021] NZCA 195 |
| BETWEEN | KEITH MERVYN GEORGE HUNTER |
| AND | AUCKLAND COUNCIL |
| Counsel: | Appellant in person |
Judgment: | 17 May 2021 at 3.00 pm |
JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)
The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined. Security for costs of $14,120 is payable by 15 June 2021.
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REASONS
Introduction
Mr Hunter appeals against a judgment of the High Court dismissing his application for judicial review of a decision of the first respondent, Auckland Council (the Council), granting resource consent to his neighbour, the second respondent (Mr Burley), in respect of plans to lift, shift and extend Mr Burley’s house.[1]
[1]Hunter v Auckland Council [2020] NZHC 1720.
Security for costs was set at $14,120. Mr Hunter’s application for dispensation from the requirement to pay security on both financial and public interest grounds was dismissed in a decision of the Deputy Registrar dated 17 February 2021. Mr Hunter now applies for a review of that decision. It is referred to in this judgment as the “security review” in order to distinguish it from references to the judicial review proceeding.
Relevant principles
The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney General.[2] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.[3] The Court explained:
[35] … we consider that the discretion to dispense with security should be exercised so as to:
(a)preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent’s costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.
[2]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[3]At [31].
The Court also ruled that the review function of the judge in relation to security for costs is to be exercised de novo.
Deputy Registrar’s decision
Mr Hunter’s application for dispensation was advanced on two grounds: first that he was unable to pay security, and secondly that the issues that arose on the appeal were of wide public interest, in particular the Council’s alleged use of discretion to ignore planning rules. Annexed to the application were four pages of newspaper cuttings and three pages of evidence of his income.
The decision commenced by referring to the relevant principles from Reekie, noting that it may be appropriate to investigate whether security can be provided by a relative or by borrowing. It acknowledged that in rare cases of public importance security for costs can be dispensed with even if impecuniosity is not established.
The Deputy Registrar recognised that Mr Hunter’s income is modest, primarily comprising New Zealand Superannuation and rent from a flat in his house. However on the basis of the detailed financial information which Mr Hunter had provided to Legal Aid Services, which disclosed an equity in his property of approximately $1.8 million and more than $8,000 in his bank account, the Deputy Registrar concluded that Mr Hunter could source the funds to pay security notwithstanding a debt of approximately $59,000 to family members.
The Deputy Registrar accepted that the appeal had potential benefits to Mr Hunter outweighing the potential costs. However she considered that he faced significant difficulties establishing that the independent panel appointed by the Council to determine the resource consent application failed to take into account mandatory relevant factors, took into account irrelevant matters, had improper or unfair processes or committed an error of law. In so concluding she took into account the observation of Woolford J in his judgment declining the stay of execution that the most telling factor against a stay was the lack of any real prospect of success in this Court.[4]
[4]Hunter v Auckland Council [2020] NZHC 2245 at [14].
Noting that the judicial review concerned a specific resource consent decision which turned on its unique facts and only affected the parties to it, the Judge rejected Mr Hunter’s contention that the appeal raised issues of public interest. The Deputy Registrar concluded:
[20] Mr Hunter is not impecunious. He would be able to obtain the funds to pay security for costs, even though this may require a reverse mortgage arrangement he does not wish to enter into. The appeal is of potential benefit to him and is not hopeless, but it seems to have little prospect of success. I do not consider any issue of public interest genuinely arises for determination in this appeal.
[21] I do not consider there is anything exceptional in the circumstances, taken together, that justify dispensing with or reducing security for costs when impecuniosity has not been established. I am satisfied the respondents should not be required to defend the judgment under appeal without the usual amount of security for their costs.
Mr Hunter’s security review
On 15 March 2021 Mr Hunter filed a letter detailing his grounds for seeking review of the decision declining dispensation from the provision of security. It is a singularly different document from the orthodox application for waiver considered by the Deputy Registrar. No reference is made in the review application to either impecuniosity or the public interest. Indeed, as the Council’s memorandum of 22 March 2021 notes, the review application does not address or even refer to any element of the Deputy Registrar’s decision.
Three documents were filed with the application:
(a)a memorandum of 12 June 2020 filed by the Council in the High Court proceeding;
(b)Minute (No 3) of Woolford J dated 12 June 2020; and
(c)a transcript which Mr Hunter had obtained of the hearing before Woolford J in the High Court on 3 July 2020.
The application foreshadowed Mr Hunter’s intention to file an amended notice of appeal. That amended notice filed on 19 March 2021 set out amended grounds of appeal as follows:
Cause 1: Dishonesty, deceitful and deceptive statements by the respondents, together amount to a process so corrupt as to be unacceptable under any regime of law.
i)This ground replaces the ground formerly described using the word ‘tarnished’.
ii)This cause includes perjury.
Cause 2: The respondents were and are complicit in the deceit;
Cause 3: The 1st respondent regularly misinterprets the law as a matter of course and has done so here.
Cause 4: The Court ignored the dishonesty and deceit; and failed to address the misinterpretation when asked during the hearing.
Cause 5: The Court ignored the ‘Clean Hands’ principle;
Cause 6: The actions of the Court prior to, during and after the hearing were improper, unjust and unlawful:
In order to understand the thrust of Mr Hunter’s contentions it is necessary to traverse certain events which preceded the review proceeding the subject of the judgment under appeal.
Additional background
Mr Burley’s original application for resource consent for the alterations to his house was made on a non-notified basis. Following the grant of resource consent Mr Hunter applied to the High Court at Auckland for judicial review of the decision to grant it on a non-notified basis.[5] However Mr Hunter discontinued that application for judicial review after Mr Burley filed a new application for resource consent in which he requested that Mr Hunter and his tenant be formally notified so as to give them the opportunity to take part in the decision-making process.[6]
[5]Hunter v Auckland Council, above n 1, at [4].
[6]At [5].
The new application was lodged on 5 September 2018 and Mr Hunter made a submission in opposition. Although an independent planner appointed by the Council to report on the application recommended that it be declined, a panel of independent hearing commissioners appointed by the Council chose not to follow that recommendation and, following a hearing and a site visit, gave consent to the application in a decision dated 15 November 2019.[7]
[7]At [6].
On 24 January 2020 Mr Hunter filed the application for judicial review challenging the panel’s decision. It was set down for hearing on 3 July 2020.
On learning that Mr Hunter had it in contemplation to present at the hearing material relating to events that pre-dated the second resource consent, on 12 June 2020 the Council filed a memorandum seeking directions. This is the first of the documents lodged with Mr Hunter’s application for review.[8]
[8]At [11] above.
In his Minute (No 3) of 12 June 2020 Woolford J stated:
[3] As for the first cause for review, I note Council’s submission to be advanced at the hearing that once the decision was taken to withdraw the previously issued resource consent and hear it as a notified hearing, all issues to that point were superseded. That being the case, the Council may choose not to focus on Mr Hunter’s first cause for review.
It appears that at the hearing on 3 July 2020 Mr Hunter expressed concerns about the implications of the new resource consent application, contending that he would not have agreed to discontinue the earlier proceeding if he had known that the development plans would be identical to the former plans. On this issue the Judge stated:[9]
[14] This, however, cannot be a ground for review of the panel’s decision. Even if true, it has nothing to do with it. Mr Hunter’s motivation for discontinuing the earlier proceedings does not impact in any way on the lawfulness of the panel’s decision.
[15] Mr Hunter seeks to withdraw his notice of discontinuance filed in the earlier proceedings. However, even if he had continued the earlier proceedings, the best outcome that he could have hoped for would have been an order by the Court quashing the earlier resource consent decision because the process was in some way flawed and directing the Council to reconsider Mr Burley’s application for resource consent. The Council have now reconsidered Mr Burley’s application, so Mr Hunter is in exactly the same position as if he had been successful in the earlier proceedings.
Discussion
[9]Hunter v Auckland Council, above n 1.
Mr Hunter’s security review is highly critical of the Council and of the High Court Judge. Describing the issue as being the integrity of the respondent’s case, the application contends that the original consent “was corruptly acquired and that even more corrupt conduct followed” giving rise to the second consent. Reference is made to a 25-page affidavit of Mr Hunter dated 12 March 2020 which he claims “lists lie after lie in a process which succeeded when [Mr Hunter] withdrew [his] application for judicial review”.
He asserts that the Council’s memorandum and the Judge’s minute of 12 June 2020 “reveal that three weeks before the hearing Woolford J made a determination that, essentially, the corruption be ignored”. He contends that pre‑determination is supported by the transcript filed with his application and expresses the view that alleged false statements in an affidavit of Mr Burley of 5 September 2018 constitute perjury.
With reference to para [15] of the judgment[10] the security review states:
The present judgment of Woolford J holds, in para 15, that deciding a case in which corruption would be apparent were it not hidden from sight, is properly addressed by cancelling the judgment which was permitted by the corruption and returning to a prior process which was equally corrupt, and that a New Zealand High Court judge would ignore all the corruption and decide, in a context in which the later set of rules were more stringent than the earlier, that regardless of the varying stringency it would be proper for all the outcomes to be exactly the same and neither the process nor the people would be tainted by dirty hands or perjury or lying in court, not even a lawyer whose loyalty was to his colleagues rather than to his client.
[10]At [19] above.
Opposing the application the Council submits:
The only issues raised in the review application (alongside various baseless and unparticularised allegations of corruption and predetermination) are:
a. The applicant’s previous withdrawn judicial review application of April 2018, which related to a resource consent granted to the second respondent on a non-notified basis on 1 September 2017;
b. The applicant’s views on the heritage issues of the second respondent’s resource consent application;
c. The applicant’s disagreements with his former counsel.
That is an accurate assessment. The security review is conspicuously silent on the considerations relevant to a Reekie analysis. While as earlier noted the review function in relation to security for costs is undertaken de novo, I record that there is no attempt at all by Mr Hunter to explain why the Deputy Registrar’s decision was erroneous.
Having considered the material which was before the Deputy Registrar together with the new material comprising the security review and the accompanying documents, I have come to the same conclusion as the Deputy Registrar. Mr Hunter is not impecunious. His amended appeal does not raise an issue of public importance as opposed to one of private interest.
Furthermore I do not consider that a reasonable and solvent litigant would proceed with an appeal of the tenor described in Mr Hunter’s amended notice of appeal. The circumstances of this case are not such as to require the respondents to resist the appeal without the protection of security for costs.
Result
The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined. Security for costs of $14,120 is payable by 15 June 2021.
Solicitors:
Clark and Co Lawyers, Auckland for Second and Third Respondents
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