O'Byrne v Waimakariri District Council HC Christchurch CRI 2009-409-188

[2010] NZHC 1378

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000188

ROGER WILLIAM O'BYRNE

Appellant

v

WAIMAKARIRI DISTRICT COUNCIL

Respondent

Hearing:         12 August 2010

Appearances: Appellant In person

S C Newell for Respondent

Judgment:      13 August 2010

JUDGMENT OF FOGARTY J

[1]      Mr O’Byrne’s formal application to the Court is for leave to appeal to the Court of Appeal against a decision of the High Court on the grounds that a breach of his rights occurred which prevented him from presenting the case.   This was a hearing conducted by myself in the High Court at Christchurch on 29 April.  It was an appeal against sentence.  Mr O’Byrne had pleaded guilty to starting to build a six bale hay shed without applying for a building permit, as required by s 40 of the

Building Act 2004. He had been fined $7,500 plus costs.

O'BYRNE  V WAIMAKARIRI DISTRICT COUNCIL HC CHCH CRI 2009-409-000188  13 August 2010

[2]      His ground of appeal is that he did not get to present any aspect of his case to the  Court  apart  from  the  historical  background  with  the  Waimakariri  District Council.

[3]      This appeal is opposed on the grounds that his application does not reveal any question  of  law.    Ms  Newell  for  the  Waimakariri  District  Council  in  written argument contended that he was afforded ample opportunity to present his case, that in fact the Court heard from him for considerably longer than might normally be expected, presumably because he was not represented by counsel;  that he spoke at length about matters that were not raised in the District Court, and which had no relevance to the sentence imposed by the Court.

[4]      In these proceedings I have approached the application on two bases:

1.        That this is an application for leave to appeal to the Court of Appeal on a question of law; and

2.That it is an invitation to this Court to rehear the original appeal on the grounds of breach of natural justice.

[5]      I have not heard any argument as to whether or not the power to rehear exists but  I proceeded  to  hear  an  argument  on  the  merits  on  the  basis  that  if  I was persuaded there is a meritorious argument for rehearing the appeal I would go on to examine whether or not I had the power to do so.

[6]      Mr O’Byrne’s first two points were:

1.He had never received the notice to remedy the deficiencies until after he had completed the hay shed; and

2.That he had caused no harm to the public as the construction of the shed was safe.

[7]      The second point was definitely heard by me in the oral argument on the day and is recorded in paragraph [8] of the judgment.

[8]      The first point was developed in the third and successive and other points made by Mr O’Byrne.   In that respect he tabled a sequence of correspondence to argue that a submission that had been made by the Council to the District Court Judge to the effect that he was uncooperative had no basis.  He explained that the notice to fix by the Council did not arrive in the mail until after he had responded to correspondence warning him that the Council was considering prosecution.   He tabled his polite correspondence opposing that showing he wrote that letter on 18

January before he received a letter on 23 January advising him there would be a prosecution, which in turn was before he ultimately received the notice of fix on 2

February.

[9]      He then went on to refer to other correspondence in March and April.  The gist of that is that he  obtained and forwarded  to the Council a  report from an independent engineer as to the quality of the construction and followed that up by obtaining  further  information  which  provided  certainty  to  the  Council  that  the fittings had been properly put in.

[10]     I am quite satisfied that Mr O’Byrne was polite in his dealings with the Council  notwithstanding  his  considerable  annoyance  arising  from  the  previous history of difficulties between  himself and the Council which predated his decision to build the shed and which were an obvious motivation to not apply for a building permit.   That previous  history, his motivation, and time constraints, which also motivated him not to apply for a building permit, were heard fully in the earlier hearing.

[11]     I pointed out to him that both the decision of Judge Bisphan and my decision proceeded on the basis that the culpability and gravity of the offending was in not applying for a building permit before he started construction, aggravated by the fact that as an engineer he knew perfectly well of the need to get a building permit for a building of this size, which was also a brand new building.

[12]     Mr O’Byrne then referred to the fact that he had erected a no trespass sign and raising issues that he had with the Council coming on to the property without consent.

[13]     None  of  those  difficulties  affected  my  judgment  as  to  the  merit  of  the sentence, nor were they, so far as I can tell, reflected in the judgment of Judge Bisphan.

[14]     Finally Mr O’Byrne referred to some of the cases relied upon by the Council in  the  penalty.     He  sought  to  distinguish  a  decision:     Brodie  &  Daytona Developments v Wellington City Council HC Wellington AP186/00 7 November

2000 Doogue J; and a second decision:   Abatal Ltd v Waitakere City Council HC Auckland A24/02 5 July 2002 Chambers J, on the grounds that if one compares the fines in those two cases and compares the scale of the projects there with this scale then his fine should have been substantially lower, on the basis of Brodie, only a few hundred dollars rather than several thousand.

[15]     He agreed with me that scale is only one factor.   I agreed with him that it could be a relevant factor.

[16]     I was left with the conclusion that Mr O’Byrne did not have the benefit at the first hearing of presenting his scale argument relying on Brodie and Abatal as comparisons.  But I was also left with the view that there was not much merit in the scale argument and if it had been taken into account it was unlikely to have reduced the sentence significantly.   It needs to be borne in mind that Mr O’Byrne was partially successful on the appeal.  The fine was reduced from $7,500 to $6,000.  He succeeded on appeal largely because the District Court Judge did not submit himself to the rigors of the Court of Appeal decision in Hessell v R [2010] 2 NZLR 298 (CA). The High Court took the opportunity, when redoing the Hessell analysis, to depart from the Judge’s general remarks that an appropriate starting point would be somewhere between $10,000 and $15,000, by taking the lower end of the range and adopting a starting point of $10,000.  That starting point was discounted by a further

$1,000 being particularly the finding by the District Court Judge that the barn was well built, maybe even better built than if it had been built in accordance with a Council permit, but left in place the Judge’s concern for the need for a deterrent sentence because of the quite deliberate flouting of the law and not applying for a building permit in the first place.

[17]     Then after reaching the sum of $9,000 Mr O’Byrne received his full one-third discount reducing the fine to $6,000.

[18]     For these reasons I do not think he has made out an extraordinary case for a rehearing.  I reiterate I am far from sure that I have the power to rehear the appeal in any event.

[19]     It also follows that he has not made out a point of law, which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal.

[20]     The application is dismissed.

Solicitors:

Buddle Findlay, Christchurch, for Respondent

cc: Mr R W O’Byrne