O'Byrne v Waimakariri District Council HC Auckland

[2011] NZHC 2000

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000065

ROGER WILLIAM O'BYRNE

Appellant

v

WAIMAKARIRI DISTRICT COUNCIL

Respondent

Hearing:         Dealt with on the papers

Judgment:      13 December 2011

JUDGMENT OF CHISHOLM J

[1]      This judgment relates to two matters:    first, Mr O’Byrne’s application for leave to appeal to the Court of Appeal against the decision of this Court delivered on

25 August 2011; secondly, the respondent’s application for costs pursuant to leave

reserved in that decision.

Application for leave to appeal to the Court of Appeal

Background

[2]      Having pleaded guilty in the District Court to a charge under the Building Act

2004 of carrying out building work (building a hay shed) other than in accordance with a building consent, Mr O’Byrne was fined $7500.  On appeal to this Court the fine was reduced by Fogarty J to $6000.  Mr O’Byrne was refused leave to appeal to

the Court of Appeal.

O'BYRNE V WAIMAKARIRI DISTRICT COUNCIL HC CHCH CRI-2011-409-000065 13 December 2011

[3]      He then sought special leave from the Court of Appeal.  By that time he had decided that the legal advice he received when entering his guilty plea was wrong and that in fact s 41(1)(c)(i) of the Act provided him with a valid defence to the charge.  The Court of Appeal refused special leave, indicating that the only way that Mr O’Byrne could now challenge his conviction was by seeking leave of the High Court to appeal out of time.

[4]      It is the judgment of this Court refusing Mr O’Byrne leave to appeal against his conviction out of time that has given rise to the application now before the Court. Mr O’Byrne’s application for leave is opposed by the Waimakariri District Council. By the time the application for leave to appeal against conviction was made the proposed appeal against conviction was around 18 months out of time.

[5]      The critical issue was whether Mr O’Byrne might be able to establish that he had a defence under s 41(1)(c)(i) of the Building Act.  After traversing the principles to be applied, the provisions of s 41(1)(c)(i), and the competing arguments, I concluded that Mr O’Byrne had failed to establish that he had a prima facie defence or that he was wrongly advised about the possibility of such a defence.   Leave to appeal against conviction out of time was refused accordingly.

Mr O’Byrne’s application for leave to appeal to the Court of Appeal

[6]      Extensive information has been provided by Mr O’Byrne in support of his application.  Many of the issues that were earlier argued before this Court have been traversed in detail.   Mr O’Bryne considers that the decision refusing him leave to appeal the conviction has numerous errors which he wishes to draw to the attention of the Court of Appeal.

[7]      Mr  O’Byrne  also  considers  that  this  Court  erred  in  its  application  of s 41(1)(c)(i) to the facts of his case.   He believes that the decision has far wider significance than the building of the relevant hay barn and that it will set a dangerous precedent.  He considers that it has the potential to make s 41 unusable in the future.

[8]      In addition it is Mr O’Byrne’s view that he was unjustly prosecuted by the Waimakariri District Council and an affidavit has been filed in support of this proposition.   As Mr O’Byrne sees the position, the only way that he can achieve justice is by being allowed to withdraw his guilty plea so that he can start with a fresh slate.

Discussion

[9]      Under s 144 (2) of the Summary Proceedings Act 1957 this Court can grant leave for a second appeal if it is of the opinion that:

...the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

This is, of course, a high threshold and it must be strictly applied by this Court when considering whether or not to grant leave.

[10]     Having considered Mr O’Byrne’s arguments and those in opposition, I have decided that this case does not qualify for leave.   While I have no doubt about Mr O’Byrne’s  sincerity  and  feeling  of  injustice,  his  complaints  seem  to  largely revolve around factual issues.  He has not identified any questions of law, which by reason of their general or public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision.

[11]     Mr O’Byrne will be aware, he can still apply to the Court of Appeal for special leave pursuant to s 144(3) of the Summary Proceedings Act.

Costs

[12]     The Council seeks costs pursuant to s 8 of the Costs in Criminal Cases Act

1967.  It notes that scale costs under the schedule in the regulations amounts to $226 per half day of the appeal hearing but that s 13(3) of the Act gives the Court the power  to  exceed  that  level.    Reference  is  also  made  to  s  8(5)  which  involves frivolous or vexatious appeals.  The Council notes that its actual costs on this appeal have been $9500 plus GST and disbursements.

[13]     Until now the Council has not sought costs against Mr O’Byrne in relation to any of the appeal hearings.  It now seeks costs of $3800 representing around 40% of the Council’s actual costs.  It maintains that the fact that Mr O’Bryne is a lay litigant should not excuse him from the consequences of the “vexatious and/or frivolous manner in which this application and the appeal was argued”.  In the event that those submissions are not accepted the Council seeks scale costs of $226.

[14]     Mr  O’Byrne  strongly  resists  any order  for  costs.    He  considers  that  the Council is attempting to intimidate or discourage him from proceeding any further and that its attitude is simply adding “fuel to the fire”.

[15]   While the Council’s frustration  with  this  protracted litigation  is understandable, I do not accept that it is appropriate to categorise Mr O’Byrne as a vexatious or frivolous litigant.   He sincerely believes that he has been unjustly treated by the Council and by the justice system.   On the other hand, he needs to realise that unsuccessful appeals can carry consequences.  Given that his application to this Court for leave to appeal was unsuccessful it is appropriate in all the circumstances that he pays scale costs in the sum of $226 to the Council.

Result

[16]     Mr  O’Byrne’s  application  for  leave  to  appeal  to  the  Court  of Appeal  is dismissed.   The Council is entitled to costs of $226 against Mr O’Byrne on his unsuccessful application to this Court to appeal against his conviction.

Solicitors:

Buddle Findlay, P O Box 322, Christchurch 8140,

Copy to Mr O’Byrne