Mawhinney v Environment Court - [2014] NZHC 2872

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-002503 [2014] NZHC 2872

BETWEEN
PETER WILLIAM MAWHINNEY

Applicant

AND

ENVIRONMENT COURT First Respondent

AUCKLAND COUNCIL Second Respondent

Hearing: 18 November 2014

Appearances:

Applicant in Person
First Respondent Abiding Decision of Court
P Moodley for the Second Respondent

Judgment:

18 November 2014

[ORAL] JUDGMENT OF WYLIE J

MAWHINNEY v ENVIRONMENT COURT & ANOR [2014] NZHC 2872 [18 November 2014]

Introduction

[1] The appellant, Mr Mawhinney, has commenced proceedings seeking judicial review. He seeks to set aside a decision of the Environment Court given on 14 June
2012, ordering him to pay costs of $427,139 to Auckland Council.

[2] The judicial review proceedings were filed on 22 September 2014. On the same day, Mr Mawhinney filed an interlocutory application under s 8 of the Judicature Amendment Act 1972, seeking an order that Auckland Council be restrained from taking any action to enforce the costs order made by the Environment Court until the claim in his judicial review proceedings has been determined.

[3] When the matter was called before me today, Mr Mawhinney also sought an order under s 8 restraining Auckland Council from taking any further steps to bankrupt him in respect of the costs order.

[4] The first respondent, the Environment Court, has advised that it will abide the decision of this Court. Auckland Council opposes the application under s 8. It has not, as yet, filed a statement of defence in the judicial review proceedings. Rather, it has sought security for costs. In a minute issued on 6 November 2014, Ellis J directed that the present application for stay should be heard first. The application for security for costs has been adjourned pending the outcome of this hearing.

Background

[5] The proceedings which resulted in the costs order have a lengthy history. It is summarised in part in my reserved judgment issued on 26 October 2011.1

[6] The substantive proceedings in respect of which the Environment Court made the costs order commenced as long ago as 1998 when Mr Mawhinney lodged a reference in respect of a proposed plan. There were hearings in 2002 and 2003.
There were further hearings in 2006, 2007 and 2010.

1 Mawhinney v Auckland Council (2011) ELRNZ 608 (HC).

[7] In July 2010, Mr Mawhinney was adjudicated bankrupt. He was discharged from bankruptcy on 24 September 2013.

[8] While Mr Mawhinney was a bankrupt, the Environment Court issued its final decision in regard to the 1998 reference. That decision issued on 25 November
2010. The decision was appealed to this Court by Mr Mawhinney claiming to be a trustee of the Waitakere Forest Land Trust and its successors. I issued a reserved judgment on that appeal on 26 October 2011. I found that the appeal failed and I dismissed it. In the course of my ruling, I expressed reservations about the process followed by the Environment Court. I considered that the Environment Court had exceeded its jurisdiction and that it should have disallowed Mr…

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: [2014] NZHC 2872
Decision Date: 18 November 2014

CaseChat Overview and Summary

Mr Mawhinney commenced proceedings seeking judicial review of a decision of the Environment Court ordering him to pay costs of $427,139 to Auckland Council. The proceedings which resulted in the costs order have a lengthy history. Mr Mawhinney filed an interlocutory application under section 8 of the Judicature Amendment Act 1972 seeking an order that Auckland Council be restrained from taking any action to enforce the costs order made by the Environment Court until the claim in his judicial review proceedings has been determined. When the matter was called before the court, Mr Mawhinney also sought an order under section 8 restraining Auckland Council from taking any further steps to bankrupt him in respect of the costs order. Auckland Council opposed the application under section 8 and has not, as yet, filed a statement of defence in the judicial review proceedings. Rather, it has sought security for costs.
The court considered whether an interim order under section 8 was necessary to preserve Mr Mawhinney’s position. The court noted that the application for interim relief is declined as there is no evidence before the court on which it can reach the conclusion that an interim order is necessary. The court refrained from testing the strength or otherwise of the application for review as it did not want its views to colour the exercise by the Official Assignee of the discretion vested in him under section 117 of the Insolvency Act.

The court considered the application for costs by Auckland Council. The court was not satisfied with Mr Mawhinney’s submission that it has been the behaviour of the Council throughout that has been the underlying cause of the litigation, and the costs order that he now faces. The court considered that costs should follow the event and was satisfied that costs on a 2B basis are appropriate in the circumstances of this case. An order is made in the Council’s favour in that regard.

Orders