Kennedy Point Boatharbour Limited v Barton
[2022] NZHC 737
•12 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-2053
[2022] NZHC 737
BETWEEN KENNEDY POINT BOATHARBOUR LIMITED
PlaintiffAND
AINE BARTON
First Defendant
KRISTEN BUSHER
Second DefendantContinued …
Hearing: On the papers Appearances:
C R Andrews for the Plaintiff
R M Mansfield QC, DAC Bullock and S D Wakefield for the Twelfth Defendant
Judgment:
12 April 2022
JUDGMENT OF GAULT J
(Application for leave to appeal)
This judgment was delivered by me on 12 April 2022 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr C R Andrews and Mr D J Pine, McVeagh Fleming, Auckland
Mr R M Mansfield QC (counsel for the twelfth defendant), Barrister, Auckland Mr DAC Bullock and Ms S D Wakefield, LeeSalmonLong, Auckland
KENNEDY POINT BOATHARBOUR LTD v BARTON [2022] NZHC 737 [12 April 2022]
Continued …
NOA CLARKIN
Third Defendant
BILLIE FAIRCHILD
Fourth Defendant
JOHN FINN
Fifth Defendant
THOMAS GREVE
Sixth Defendant
ZO HARTLEY
Seventh Defendant
JOSH JACOBSON
Eighth Defendant
CHRYSTAL KAREN KANARA
Ninth Defendant
ALICE KARETAI
Tenth Defendant
MATTHEW KEMP
Eleventh Defendant
MEGAN MANUKA
Twelfth Defendant
WARREN MATAHAERE
Thirteenth Defendant
ALISON MELL
Fourteenth Defendant
DARLEEN TANA HOFF NEILSON
Fifteenth Defendant
MARDI ELIZABETH O’CONNOR
Sixteenth Defendant
JESSIE-LEE PEARCE
Seventeenth Defendant
TE AATA RANGIMARIE
Eighteenth Defendant
BIANCA RANSON
Nineteenth DefendantHUGH ROSS
Twentieth DefendantPABLO ANTONIO ZEBIDI SINCLAIR
Twenty-First DefendantMEGAN TAYLOR
Twenty-Second Defendant
DANIELLE TOLLEMACHE
Twenty-Third DefendantJULIANNE TIMMINS
Twenty-Fourth DefendantEMILY MAIA WEISS (RANDALL)
Twenty-Fifth DefendantBENJAMIN WHITWORTH-LOZA (MAKO)
Twenty-Sixth DefendantNEIL WOLMARANS
Twenty-Seventh DefendantLEV WOOLF
Twenty-Eighth DefendantJONATHAN ZUR
Twenty-Nineth Defendant
MICHAEL ZUR
Thirtieth DefendantLARRY “UNKNOWN”
Thirty-First DefendantSIMON “UNKNOWN”
Thirty-Second DefendantAND
PERSONS UNKNOWN
[1] The twelfth defendant, Ms Manuka, applies for leave to appeal my interlocutory judgment dated 23 February 2022 in which I varied but declined to set aside without notice interim injunction orders obtained by the plaintiff, KPBL.1
[2] KPBL neither supports nor opposes Ms Manuka’s application. They both agree that leave should be determined on the papers. A number of other defendants have informally expressed support for Ms Manuka’s application.
Factual background
[3] KPBL has obtained a resource consent (coastal permit) to construct and operate a marina in the coastal marine area (CMA) near Kennedy Point in Pūtiki Bay, Waiheke Island. The resource consent has been challenged through the courts – appeals have been unsuccessful,2 but a judicial review proceeding is ongoing. In any event, opposition to the marina remains. A beach occupation began around March 2021 and a series of other protests at or near the marina site followed.
[4] On 3 November 2021, KPBL filed proceedings claiming in trespass together with a without notice interlocutory application for interim quia timet injunction. It sought to restrain thirty named defendants and two partially named defendants from entering a specified area, and also to restrain “persons unknown” in connection with protest action against construction of the marina from doing so, at specified times.
[5] Wylie J determined the application on the papers. His orders dated 4 November 2021 granted an interim injunction in the terms sought subject to additional terms requiring display of and access to the Court order, marking the specified areas with buoys and signs, and reserving leave to apply to set aside or vary the order on not less than three working days’ notice.3
1 Kennedy Point Boatharbour Ltd v Barton [2022] NZHC 257.
2 SKP Inc v Auckland Council [2018] NZEnvC 81; SKP Inc v Auckland Council [2019] NZHC 900; SKP Inc v Auckland Council [2019] NZEnvC 199; SKP Inc v Auckland Council [2020] NZHC 1390; SKP Inc v Auckland Council [2020] NZCA 610; SKP Inc v Auckland Council [2021] NZSC 35; and SKP Inc v Auckland Council [2021] NZSC 37.
3 Orders of Wylie J dated 4 November 2021, varied by Minute of Gault J dated 25 November 2021.
[6] Ms Manuka applied to vary or set aside the without notice interlocutory injunction orders granted by Wylie J, and alternatively for leave to appeal his orders. A hearing took place in January 2022.
Decision
[7] Having dealt with procedural issues concerning whether KPBL failed to disclose all relevant matters and whether the application should have been sought and determined without notice, I concluded in summary that:
(a)There is a serious question to be tried as to whether KPBL has an implied right of exclusive occupation to the areas of the CMA within the marked areas on Plans A to D in Schedule 2 of the orders while those areas are demarcated by marker buoys and where construction activity is occurring, that the named defendants have trespassed into one or more of those areas and that they may do so again.
(b)The balance of convenience weighs in favour of interim orders. Damages are not an adequate remedy for KPBL’s financial harm, and health and safety considerations favour exclusion of the public from the immediate vicinity of active construction works in the CMA. Movement though the CMA is restricted only to that extent and lawful protest is not otherwise restricted in the CMA or at all on land.
(c)Having considered the fundamental rights protected by the New Zealand Bill of Rights Act 1990 (NZBORA) engaged by lawful protest, Te Tiriti o Waitangi / Treaty of Waitangi and tikanga Māori issues raised and the interim order in relation to “persons unknown”, overall justice favours maintaining the interim orders with several specified variations. Pending trial or further order of the Court, that appropriately balances KPBL’s right to achieve the purpose of the coastal permit and the rights of the named defendants and others to engage in lawful protest in a public place and exercise the rights of mana whenua in Pūtiki Bay. Interim orders as varied cause the least irremediable prejudice.
Principles governing interlocutory appeals
[8] Leave is required to appeal the interlocutory decision.4 The principles governing interlocutory appeals are well established. They were summarised by the Court of Appeal recently in Tomar v Tomar:5
[6] In Finewood Upholstery Ltd v Vaughan, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.6 The following considerations were recognised as relevant on an application for leave to appeal:7
(a)A high threshold exists.
(b)The applicant must identify an arguable error of law or fact.
(c)The alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value.
(d)The circumstances must warrant incurring further delay.
(e)The ultimate question is whether the interests of justice are served by granting leave.
[7] This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council indicated that considerations similar to the principles applicable to applications under the former s 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave],8 apply to applications under s 56(5) of the Senior Courts Act, stating:9
We agree that 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 which the appeal process would involve.
Arguable errors
[9] The grounds of appeal state that the judgment contains arguable errors of fact and law, specifically:
4 Senior Courts Act 2016, s 56(3).
5 Tomar v Tomar [2021] NZCA 419.
6 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
7 At [9] and [14], citing A v Ministry of Internal Affairs [2017] NZHC 887.
8 Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526.
9 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].
(a)The High Court erred in finding there was a serious question to be tried:
(i)The High court relied on the Court of Appeal’s decision in Hume v Auckland Regional Council10 but that decision is wrong as it relates to s 122 of the Resource Management Act 1991 (RMA).
(ii)The High Court erred in its application of Hume even if that case was rightly decided.
(b)The High Court erred in its application of the balance of convenience and overall justice tests.
(c)The High Court erred in making its injunction orders, against persons unknown and generally as to the scope and application.
[10] The submissions in support state that, first and primarily, Ms Manuka intends to challenge the Court of Appeal’s decision in Hume, where the Court considered s 122(5)(a) and (b) of the RMA and concluded that the “and” between the paragraphs means “or”.11 Ms Manuka submits there are numerous and good grounds to support the submission that the decision in Hume is wrong as it relates to the interpretation of s 122. Irrespective of my own doubts as to that submission, whether the Court of Appeal should reconsider one of its own permanent Court decisions is a question for the Court of Appeal rather than me.
[11] In any event, for present purposes, the relevant question on the proposed interlocutory appeal is whether there is a serious question to be tried. As the High Court was bound by the Court of Appeal’s decision in Hume, I do not consider it is arguable that the High Court erred in relying on Hume. Even accepting that it is appropriate in some cases to grant leave to appeal so that an appellate court can reconsider one of its own decisions, there is reduced scope for that in this interlocutory injunction context. I will address this further below.
10 Hume v Auckland Regional Council [2002] 3 NZLR 363 (CA).
11 At [17]-[22]; referred to in Kennedy Point Boatharbour Ltd v Barton [2022] NZHC 257 at [43].
[12] It is no part of the Court’s function at the interlocutory injunction stage of litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend, nor to decide difficult questions of law which call for detailed argument and mature considerations.12
[13] This leads into Ms Manuka’s alternative ground that the High Court erred in its application of Hume. She submits that Hume did not permit the creation, by implication, of a zone of exclusive possession and that the High Court erred in finding that the express treatment of exclusion under the resource consent, including the provisions relating to the Harbourmaster, precluded the implication of exclusive possession under s 122(5).
[14] I addressed these arguments in my decision. They were not developed in the leave submissions. Noting that I concluded only that there is a serious question to be tried, I do not consider this ground identifies an arguable error. Ms Manuka effectively seeks to have the Court make a substantive determination in the defendants’ favour at the interlocutory injunction stage.
[15] Ms Manuka also submits that the High Court erred in its application of the balance of convenience and overall justice tests, including by failing to adequately recognise and provide for the rights of the respondents, by failing to adequately assess the actual likelihood of future trespass, and by failing to find that KPBL’s own conduct had caused the conduct it sought to restrain in a way that ought to have seen equitable relief denied. She also submits that the injunction against “persons unknown” was inappropriate and overbroad; that the novelty of such orders was recognised in both High Court judgments and warrants appellate scrutiny.
[16] I also addressed these arguments in my decision. Again, they were not developed in the leave submissions. Here too, in the context of a serious question to be tried, I do not consider this ground identifies an arguable error. Also, the scope of
12 American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) at 407; Villa Maria Wines Ltd v Montana Wines Ltd [1984] NZLR 422 (CA) at 425; and Health Club Brands Ltd v Colven [2013] NZHC 428 at [9].
interim relief against “persons unknown” does not warrant appellate scrutiny in the abstract and on an appeal by a named defendant.
Importance and interests of justice
[17] I accept that the question raised in relation to Hume is of some importance, and that its determination in Ms Manuka’s favour would undermine the trespass claims. But the question may not be suitable for determination in the context of this interlocutory appeal even though the question is primarily one of statutory interpretation for two reasons. First, the coastal permit must be interpreted in its proper context, which may not be fully before the Court at this interlocutory stage.13 Secondly, revisiting Hume may have implications for other existing consents given the evidence of coastal permit practice.14 Further evidence may be appropriate, especially if Ms Manuka seeks to challenge the admissibility of Mr Littlejohn’s evidence.
[18] The preferable course in this proceeding may be for Hume to be considered, if required, together with any other issues, on a substantive appeal on the merits – when the various rights can be balanced substantively. Given the nature of the proceeding, I do not accept the concern that a trial might be several years away. Nor do I consider that a lack of means on the part of other defendants or “persons unknown” is a separate reason to grant leave. But I accept that an interlocutory appeal (without a stay) is unlikely to cause delay to KPBL. Its works can continue. So too can its claim.
[19] Ms Manuka’s submissions raise another point – that the Hume issue has flow on implications for those defendants facing criminal trespass charges in the District Court. She submits the Hume issue is most efficiently determined here. However, the overlap with the criminal proceedings is unclear. As is whether it would influence the Court of Appeal to revisit Hume in an interlocutory appeal in this proceeding rather than in the context of the criminal proceedings.
[20] Overall, I consider the primary ground of appeal may not be well suited to an interlocutory appeal. Granting leave may result in the Court of Appeal declining to
13 Kennedy Point Boatharbour Ltd v Barton [2022] NZHC 257 at [49].
14 At [50]-[52].
revisit Hume substantively on this interlocutory injunction appeal. Only the Court of Appeal can decide otherwise.
[21] For these reasons, I consider the interests of justice are not served by this Court granting leave.
Result
[22]The application for leave to appeal is dismissed.
Gault J
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