Moulton v Auckland Council HC Auckland CIV-2010-404-007767

[2011] NZHC 672

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-007767

UNDER  the Resource Management Act 1991

IN THE MATTER OF     an appeal under s 299 of that Act

BETWEEN  GARY MOULTON Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing:         30 June 2011

Appearances: Mr Moulton in person

Ms L S Fraser for respondent

Judgment:      30 June 2011 at 4:45 PM

JUDGMENT OF LANG J

[on application for extension of time within which to apply for leave to appeal]

This judgment was delivered by me on 30 June 2011 at 4.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MOULTON V AUCKLAND COUNCIL HC AK CIV-2010-404-007767 30 June 2011

[1]      For more than 16 years Mr Moulton has been involved in disputes with several local authorities regarding his practice of mooring vessels in coastal waters. He has always believed that he is not required to comply with the regulatory regime relating to the lawful mooring of vessels in such waters.  The local authorities have always disagreed.

[2]      As a result, between 1992 and 2005 Mr Moulton regularly moved his vessels up and down the coast  between the Auckland and Waikato regions.   The local authorities responded by obtaining enforcement orders from the Planning Tribunal and (later) the Environment Court.  These required Mr Moulton to cease mooring his vessels in the way that he was doing.  They also ultimately led to the seizure and destruction of one of his vessels in 2005.

[3]      In the 11 year period leading up to 2005 the ongoing issues involving Mr Moulton and his vessels created a plethora of litigation in the Planning Tribunal and Environment Court.  The present proceeding is but one small aspect of a much larger picture.

[4]      This  proceeding  arises  out  of  an  enforcement  order  that  the  Auckland Regional Council obtained against Mr Moulton in 1995.  This permitted the Council to remove Mr Moulton’s two vessels from Anzac Bay on Waiheke Island, and to sell them to pay the costs of removal.   Mr Moulton appealed against the orders under s 315(2) of the Act.

[5]      On  15  September  1995  Morris  J  dismissed  Mr  Moulton’s  appeal  in  the following terms:1

The points of law which I am asked to deal with by the appellant are:

1.      when did the period of 12 months run which is allowable under s

418(6A) of the [Resource Management] Act;

2.      whether s 418(6A) is related to s 418(6B) of the Act. I can answer both questions very briefly.

As to 1:

1 Moulton v Auckland Regional Council HC Auckland HC.69/95 15 September 1995

The period of time runs or commences as the section says “until one year after the Regional Coastal Plan provides otherwise”.

As to 2:

Section 418(6A) relates to moorings.  Section 418(6B) relates to activities. Each is therefore dealing with a specified topic.  Each are inter-related in that they are dealing with matters which must be considered when ss 1 and 2 are being discussed.

I have answered both these questions in what may appear to be a perfunctory manner  as  the  answers  cannot,  in  my  view,  affect  the  decision  of  the Tribunal.   The proceedings were based on an allegation the appellant had failed to comply with two enforcement orders as specified on p 2 of the judgment of the Tribunal.   The Tribunal found, as a matter of fact, the enforcement orders had been made and the appellant had failed to comply with them.  There is no right of appeal from such a finding of fact nor does the appellant seek to appeal that finding of fact.  The provisions of s 418, to which I have made reference, were raised at the hearing before the Tribunal and accordingly were discussed by it.  The Tribunal found, as a question of fact, the appellant’s actions were unlawful for the reasons given in the judgment.  No right of appeal exists from that finding of fact and indeed no other conclusion could have been reached.  In my opinion, in view of these factual findings, in particular the finding the appellant had not complied with the enforcement orders, whatever answer I have given to the questions of law, they can have no bearing on the outcome of the proceedings and the appeal is accordingly dismissed.

[6]      Mr Moulton now seeks an extension of time within which to apply for leave to appeal to the Court of Appeal against the judgment of Morris J.

Jurisdiction

[7]      Ordinarily an intending appellant must file any application for leave to appeal to the Court of Appeal against a determination of this Court within 21 days of the date upon which the determination is delivered.2   This Court has jurisdiction to grant an extension of time within which to file the application.3

[8]      An applicant seeking an extension must, however, satisfy the Court that the justice of the case requires that the opportunity to challenge the decision be given to the appellant.  In exercising its discretion the Court will naturally have regard to the length of, and reasons for, any delay that has occurred.  The Court will also take into

account the history of the proceeding, including the conduct of the parties, the nature

2 S 144 Summary Proceedings Act 1957

3 S 123 Summary Proceedings Act 1957

of the litigation, and the effect on the parties in the event that the application is granted or refused.4

The delay

[9]      A delay of nearly 16 years, by any standard, must be regarded as extreme.  It would, on its own, generally be determinative of the application.

[10]     Mr  Moulton  advances  three  reasons  for  the  length  of  delay.    First,  he contends that he was not aware that he was required to obtain the leave of this Court to appeal to the Court of Appeal.  That submission needs to be viewed in light of the following  passage  in  another  decision  involving  Mr  Moulton  that  the  Planning

Tribunal issued after Morris J dismissed Mr Moulton’s appeal:5

Yet again Mr Moulton appealed to the High Court, both from the foregoing and  from  a  subsequent  order  as  to  costs  in  favour  of  ARC  and  ACC (Decision A63/95).    This  time  the  matter  came  before  Morris  J  on  15

September 1995.  By oral decision of the same date His Honour dismissed both appeals for reasons which he gave (HC 69/95, Auckland Registry).

…

On or about 1 March 1995, the respondent moved the vessels to their present location.  Despite various written requests made since on behalf of WRC to remove the vessels from the coastal marine area, the respondent has failed to do so.   At one stage he said that he was appealing from the Tribunal’s decision of 8 February 1995.  WRC agreed to withhold action pending the appeal’s outcome.  On receipt of Morris J’s judgment, WRC by its Resource Use Programme Manager, Mr D A Cater, requested the respondent to remove the vessels.  The respondent spoke of an appeal to the Court of Appeal but no leave in that regard has been sought let alone granted. (Emphasis added)

[11]     In this passage the Judge expressly referred to the fact that leave would be required from this Court before Mr Moulton could appeal to the Court of Appeal.  I therefore do not accept that Mr Moulton has been unaware of that requirement.

[12]     Next, Mr Moulton argues that he has been hindered by the fact that he has been in custody (on unrelated matters) for a significant period since 1996.  That may

4 Housing Corporation of New Zealand v Cromwell Borough HC Wellington M.61/81 5 February

1982

5 Waikato Regional Council v Moulton A65/96 19 July 1996

be so, but his ability to advance the present application even though he is still in custody means that I can give this explanation very little weight.

[13]     Finally, Mr Moulton points out that he has been involved in no fewer than 27

Court cases, and says that these have largely occupied his attention over the last 15 years. Again, I do not consider that this provides an adequate explanation for such a lengthy delay.

[14]     I would therefore dismiss the application on the basis of the length of the delay and the absence of any acceptable explanation for it.   In case I am wrong, however, I turn to briefly consider the point that Mr Moulton wishes the Court of Appeal to consider if he is granted an extension of time within which to apply for leave to appeal.

The proposed appeal

[15]     As will be evident from the passage set out above,6 Mr Moulton asked Morris J to consider two discrete issues.  In the hearing before me, however, he indicated that he wished to raise a much wider issue.   He formulated the question that he wishes the Court of Appeal to determine as follows:

Did Parliament provide local authorities with power under the Resource Management Act 1991 to seize and destroy vessels, to seize cargo and to misappropriate personal belongings from vessels and to control vessels in such manner?

[16]     Mr Moulton explained that he wants the Court of Appeal to consider these issues because he is concerned that others may suffer in the future as he has suffered in the past as a result of the actions of local authorities.

[17]     These issues are obviously far removed from those that Mr Moulton asked Morris J to consider.  They completely alter the character of the appeal. As I advised Mr Moulton during the hearing, they can only be determined if and when they arise in the future.   They cannot properly be the subject of an appeal to the Court of

Appeal against the decision of Morris J.

6 At [5]

Result

[18]     The application for an extension of time within which to apply for leave to appeal to the Court of Appeal is dismissed.

Costs

[19]     The respondent is entitled to costs on a Category 2B basis together with disbursements as fixed by the Registrar.

Lang J

Solicitors:

Burns Fraser, Auckland
Copy to:

Mr G Moulton, Auckland Prison