Manuka v Kennedy Point Boatharbour Limited
[2022] NZCA 482
•14 October 2022 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA216/2022 [2022] NZCA 482 |
| BETWEEN | MEEGAN MANUKA |
| AND | KENNEDY POINT BOATHARBOUR LIMITED |
| Court: | Clifford and Courtney JJ |
Counsel: | R M Mansfield KC, D A C Bullock and S D Wakefield for Applicant |
Judgment: | 14 October 2022 at 11.00 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined.
BCosts are to lie where they fall.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
On 23 February 2022 Gault J declined an application by Ms Manuka to set aside interim injunction orders obtained on a without notice basis by the respondent, Kennedy Point Boatharbour Ltd (KPBL), against her and several others.[1] The Judge subsequently declined leave to appeal to this Court.[2] Ms Manuka now seeks leave to do so from this Court under s 56(5) of the Senior Courts Act 2016.
Background
[1]Kennedy Point Boatharbour Ltd v Barton [2022] NZHC 257, [2022] 2 NZLR 696 [Substantive judgment].
[2]Kennedy Point Boatharbour Ltd v Barton [2022] NZHC 737 [Leave judgment].
Following public consultation, in May 2017 the Auckland Council granted KPBL a coastal permit (the Coastal Permit) to build and operate a marina at Kennedy Point in Pūtiki Bay, Waiheke Island (the Marina). Since then, the Marina’s construction has been heavily contested. The Environment Court confirmed the granting of that consent in May 2018 and subsequent challenges to that decision have been unsuccessful.[3] Judicial review proceedings are ongoing.
[3]See 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, [2021] 2 NZLR 94; SKP Inc v Auckland Council [2020] NZCA 610, [2021] 2 NZLR 94; SKP Inc v Auckland Council [2021] NZSC 35, (2021) 22 ELRNZ 637; and SKP Inc v Auckland Council [2021] NZSC 37.
Ms Manuka strongly opposes the Marina’s construction. She traces her whakapapa to a number of iwi, including Ngāti Pikiao, which is connected to Ngāti Paoa, one of the main iwi recognised on Waiheke Island. She lives by and practices Ringatū and Pai Mārire religious customs. Pūtiki Bay is of cultural significance to her. It was the historical landing site of Te Arawa and Tainui waka, from which she descends. It is also the habitat for kororā (little blue penguins) which, she says, will be harmed by the Marina’s construction.
In March 2021, construction work began on the Marina and by April 2021 protest action and a beach occupation had commenced. In May 2021, KPBL’s director authorised police to act on its behalf for the purposes of the Trespass Act 1980 and s 56 of the Crimes Act 1961. Trespass notices were issued in respect of a number of protesters between June and July 2021.
On 3 November 2021, KPBL filed civil proceedings for:
(a)a declaration that it was entitled to occupy the coastal marine area to the exclusion of others as is reasonably necessary for the purpose of construction of the Marina in accordance with the Coastal Permit;
(b)a permanent injunction restraining the defendants, until such time as construction of the Marina is completed, from entering defined areas of the coastal marine area; and
(c)damages for trespass.
At the same time KPBL applied by way of interlocutory application on a without notice basis for an interim quia timet injunction to similar effect.
The following day Wylie J granted that application, subject to certain terms. He also reserved leave to apply to set aside or vary the order, which Ms Manuka subsequently did. As Wylie J’s interim orders were made on a without notice basis, Ms Manuka was entitled to make that application in any event:[4] at the hearing of her application (before Gault J) the onus was on KPBL to satisfy the Court afresh that interim relief was appropriate and, in considering that question, the decision made without notice had no precedential value.[5]
[4]High Court Rules 2016, r 7.49.
[5]Carter Holt Holdings Ltd v Fletcher Holdings Ltd [1980] 2 NZLR 80 (HC) at 84; and Ron West Motors Ltd v Broadcasting Corp of New Zealand (No 2) [1989] 3 NZLR 520 (HC) at 523.
Notwithstanding that, and no doubt reflecting the way counsel approached the hearing, Gault J spent some time addressing criticisms Ms Manuka made of KPBL’s invocation of the without notice procedure. Those matters do not call for attention from us, although we agree with the reservations the Judge recorded as to KPBL’s approach.[6]
[6]Substantive judgment, above n 1, at [40].
The question for us is whether leave to appeal Gault J’s January 2022 interlocutory decision — maintaining, as varied, the quia timet injunction pending the hearing of the substantive claim — should be granted.
High Court judgment
We adopt the following summary of that interlocutory decision which the Judge included in his leave decision. The Judge found:[7]
(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 [coastal marine area] 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 [coastal marine area]. Movement [through] the [coastal marine area] is restricted only to that extent and lawful protest is not otherwise restricted in the [coastal marine area] 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.
[7]Leave judgment, above n 2, at [7].
In declining leave to appeal his decision the Judge noted Ms Manuka’s submission that this Court’s decision in Hume v Auckland Regional Council (Hume), to which we return shortly, was wrongly decided.[8] Whilst that issue was of some importance, only this Court could decide whether it was appropriate to revisit its own decision in an interlocutory context.[9] Moreover, the Judge reasoned:
[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.
(Footnote omitted.)
Analysis
[8]At [9(a)(i)] and [10], citing Hume v Auckland Regional Council [2002] 3 NZLR 363 (CA).
[9]At [10], [17] and [20].
The principles governing the grant of leave to appeal an interlocutory decision are well established. They were summarised by this Court recently in Tomar v Tomar:[10]
[10]Tomar v Tomar [2021] NZCA 419, referring to Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9] and [13]–[14]; Meates v Taylor [Leave] (1992) 5 PRNZ 524 (CA) at 526; and Ngāi Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].
[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. The following considerations were recognised as relevant on an application for leave to appeal:
(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 Ngāi 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], apply to applications under s 56(5) of the Senior Courts Act, stating:
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.
Key to resolving the issues involved in the High Court was s 122 of the Resource Management Act 1991 and the terms of the Coastal Permit itself. Section 122 provides, as relevant:
122 Consents not real or personal property
(1) A resource consent is neither real nor personal property.
…
(5) Except to the extent—
(a) that the coastal permit expressly provides otherwise; and
(b)that is reasonably necessary to achieve the purpose of the coastal permit,—
no coastal permit shall be regarded as—
(c)an authority for the holder to occupy a coastal marine area to the exclusion of all or any class of persons; or
(d)conferring on the holder the same rights in relation to the use and occupation of the area against those persons as if he or she were a tenant or licensee of the land.
…
As the Judge noted, in 2002 this Court in Hume, a case about public access to a jetty in Herne Bay, read the “and” joining s 122(5)(a) and (b) as disjunctive.[11] That is, the “and” between s 122(5)(a) and (b) meant “or”. Hume was invoked by KPBL in response to Ms Manuka’s argument that the Coastal Permit itself gave no right of exclusive occupation for construction purposes.
[11]Leave judgment, above n 2, at [10], citing Hume v Auckland Regional Council, above n 8,Here, the arguable error is the Judge’s conclusion there is a serious question to be tried as to whether “KPBL has an implied right to exclusive occupation” of relevant parts of the coastal marine area to enable it to safely construct, or indeed construct at all, the Marina in terms of the Coastal Permit.
In effect, Ms Manuka says there is no question to be tried at all as the Coastal Permit gives KPBL no such right and that, to the extent this Court’s decision in Hume says otherwise, that decision is wrong.
Logically, therefore, she must also be saying it is seriously arguable that those assertions reflect the correct legal position. Thus, in effect she is confirming the Judge’s conclusion as to the presence of a serious question be tried, albeit taking a different view as to what would be the outcome of that “serious” argument. That is, if it is seriously arguable a given legal analysis is wrong, by the same token it will generally be the position it is seriously arguable that analysis is correct.
It is difficult to see how that proposition crosses the threshold test for leave to appeal a ruling on an interlocutory application.
In our view, Ms Manuka’s appeal, if leave were granted, could be seen as having equivalent effect to a strike out or summary judgment application, or an appeal following an unsuccessful such application. But the High Court did not consider such an application. Given that reality, we do not think it would be appropriate to grant Ms Manuka’s application for leave to appeal.
In many ways, this reflects the general position that the real issue at the interlocutory stage — absent perhaps an application to strike out, or for summary judgment in, the substantive proceedings — is the balance of convenience. It is usually not difficult to satisfy the “serious question” issue, and therefore usually similarly difficult to challenge that conclusion by way of an interlocutory appeal. We are not persuaded the correctness of the Judge’s assessment of where the balance lies meets the test for an interlocutory appeal.
Result
The application for leave to appeal is declined.
In the circumstances, we consider that costs should lie where they fall.
Solicitors:
LeeSalmonLong, Auckland for Applicant
McVeagh Fleming, Auckland for First Respondent
at [17]–[22].
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