Lau v Auckland Council - [2019] NZCA 15

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA29/2018
[2019] NZCA 15

BETWEEN	EE KUOH (AUGUSTINE) LAU Applicant
AND	AUCKLAND COUNCIL Respondent

Court:	French and Gilbert JJ
Counsel:	Applicant in person A J Ewing for Respondent
Judgment: (On the papers)	21 February 2019 at 11 am

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

The applicant, Mr Lau, was charged with 35 offences under the Resource Management Act 1991 and the Building Act 2004 arising out of unlawful development of seven properties in Auckland. Mr Lau’s company faced a further 12 charges. The charges alleged non-compliant earthworks, building works and use and non-compliance with abatement notices, notices to fix, insanitary building notices, dangerous building notices and enforcement orders made by the Environment Court.
Mr Lau elected trial by jury and applied pre-trial for severance of each of the 47 charges. He proposed that there should be a discrete week-long trial for each of the charges. Judge O’Driscoll declined to sever the charges in a judgment delivered on 22 December 2017.[1]
[1]Auckland Council v Lau [2017] NZDC 26282.
On 19 January 2018, Mr Lau applied for leave to appeal against Judge O’Driscoll’s decision. However, Mr Lau has done nothing further to advance his application.
On 1 February 2018, Brown J directed that the application for leave to appeal should be dealt with by the Court separately from the proposed appeal and on the papers.
Mr Lau subsequently accepted a sentence indication and pleaded guilty to those charges that were not withdrawn. He was convicted and sentenced to a term of imprisonment.
The proposed appeal is now moot but Mr Lau has failed to return a notice of abandonment.
In a minute dated 29 November 2018, Gilbert J made the following directions to bring the matter to a conclusion:
(a)Mr Lau is to notify the Registrar in writing within 10 working days of the date of this minute if he wishes to proceed with his application for leave to appeal against the pretrial decision. If no such notice is given, the application for leave to appeal will be dismissed.
(b)In the event Mr Lau gives such notice that he does wish to proceed with his application, he is to file and serve any submissions in support of his application no later than 20 December 2018.
(c)If the respondent wishes to file any submissions in response beyond those contained in its memorandum dated 23 January 2018, it is to file and serve these within 10 working days of receipt of Mr Lau’s submissions.
Mr Lau did not comply with these directions. On 5 December 2018, Mr Lau wrote to the Registrar saying that he was unable to make any decision about his application and indicated that he may wish to take legal advice. In a minute dated 17 December 2018, Gilbert J directed Mr Lau to seek legal advice without delay if he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZCA 15
Decision Date: 21 February 2019 at 11 am

CaseChat Overview and Summary

Lau v Auckland Council is a case in which Mr Lau sought leave to appeal against a decision of Judge O’Driscoll. Judge O’Driscoll had declined to sever 47 charges arising from unlawful development of properties in Auckland. Mr Lau had been charged with 35 offences under the Resource Management Act 1991 and the Building Act 2004, while his company faced a further 12 charges. The charges related to non-compliant earthworks, building works, and non-compliance with various notices and enforcement orders made by the Environment Court. The key issue for the Court of Appeal was whether to grant leave for Mr Lau to appeal against Judge O’Driscoll’s decision not to sever the charges. The Court also considered whether to dismiss the application for leave to appeal due to Mr Lau’s failure to comply with procedural orders.
The Court found that the application for leave to appeal was entirely without merit and moot. Mr Lau had not taken any steps to advance his application and had failed to file submissions in support of it by the deadline set by the Court. Additionally, Mr Lau had indicated that he was unable to make any decision about his application and wished to take legal advice. However, he did not seek this advice in time to comply with the Court’s directions. The Court concluded that it was appropriate to dismiss the application for leave to appeal in accordance with section 338 of the Criminal Procedure Act 2011. The Court held that Mr Lau’s failure to comply with the procedural orders met the criteria for dismissal, and the application had not been rectified within the notice period. The Court therefore dismissed the application for leave to appeal.

The final orders of the Court were to dismiss the application for leave to appeal, with no orders as to costs. The Court did not make any orders regarding costs in this matter.

Orders