Page v Whanganui District Council
[2018] NZHC 332
•6 March 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KOTI MATUA O AOTEAROA WHANGANUI ROHE
CIV-2017-483-28
[2018] NZHC 332
IN THE MATTER OF THE RESOURCE MANAGEMENT ACT
1991
AND IN THE MATTER AN APPEAL UNDER SECTION 299 OF OF THE ACT
AND IN THE MATTER AN APPLICATION UNDER SECTION 294 OF FOR A REHEARING
Hearing:
BETWEEN
AND
26 February 2018
ADRIAN NEIL PAGE
Applicant
WHANGANUI DISTRICT COUNCIL
Respondent
Appearances: Applicant in Person
N McIndoe and A Sandon for Respondent
Judgment: 6 March 2018
JUDGMENT OF GRICE J
(Appeal under s 299 of the Resource Management Act 1999)
[1] Mr Page appeals a costs award made by the Environment Court on 11 March 2010.1 He also seelcs leave to appeal out of time. The Council has applied to strilce out the appeal.
' Wanganui District Council v Page [2010] NZ EnvC 73.
PAGE v WHANGANUI DISTRICT COUNCIL [2018] NZHC 332 [6 Mai’ch 2018]
[2] Mr Page’s application included an application for rehearing under s 294 of the Resource Management Act 1991 (the Act). However, he indicated at the outset of the hearing that he had since filed an application for reheating in the Environment Court and was not pursuing a reheating here. If he had been, the application would have been dismissed. There is no jurisdiction for this Court to rehear a decision of the Environment Court, as that is the only court with the jurisdiction.'
[3] Mr Page also clarified at the outset that this was an appeal against the costs decision only, not, as the Council had apprehended, an appeal against the substantive decision relating to the making of enforcement orders as well as the costs award. The Council was under this apprehension because Mr Page’s interlocutory application of 11 January 2018 for leave and to appeal the costs award listed a number of grounds relating to the evidence before the Environment Court in the substantive hearing for enforcement orders. The Court granted the enforcement orders on 22 June 2009 (the Enforcement Order decision).3
Background
[4] Mi Page has pursued a number of applications for rehearing and appeals in relation to the Enforcement Order decision. He has not succeeded in any of the 11 proceedings he has pursued to date. His fundamental complaint relates to the evidence put before the Environment Court by the Council in support of the application for enforcement orders.
[5] In Mr Page’s first appeal to the High Court on the Enforcement Order decision Justice Kós said in dismissing the appeal, that the matter had been the subject of a “.. . persistent but fruitless challenge since then .. .” The subject property has long since been sold by the Official Assignee following Mr Page’s bankruptcy. The earlier decisions, particularly the decision of Justice Kós, outline the background giving rise to the enforcement orders which I will not repeat here, save to say the decision relates to earthworlcs undertalcen by Mr Page dating bac1‹ to October 2008. These were the
2 Resource Management Act 1991, s 294.
Wllanganui District Council v Page EnvC Wellington W043/09, 22 June 2009
Page v Wanganui District Council [20141 NZHC 3161 at [2].
subject of an interim enforcement order obtained by the Council in January 2009,5 and subsequently the final enforcement orders on 22 June 2009.6
[6] The costs decision the subject of this appeal has been the subject of two reheating applications by Mr Page to the Environment Court. On 23 November 2011, the Environment Court struck out Mr Page’s application for a rehearing, on the basis that it was vexatious and it would be an abuse of the Court’s process to allow the case to be taken further.7 The judge there referred to a number of allegations that Mr Page had made as to the manner in which the respondent Council had conducted its enforcement proceedings against the respondents. He said:'
[13]. . . among other things, the document alleges that:
• The Council obtained a false search warrant ,’ 9
• The Council obtained an engineer ’s report from Opus Consultants and two Abuild Engineering reports under false pretences,
• A Council officer interfered with the reports’ contents prior to their release to the Council, '
• A Council officer made an untrue statement under oath;12
• The Council falsified, obtained by deceitful means or’ inappropriately used not less than nine documents identified by
Mr Page; 3
• The Council conspired to pervert the course ofjustice."
[14] It will be seen from the above summary that the allegations made by Mr Page are of a particularly serious hind. They ale not supported by any probative, independent or intelligible evidence. They are simply allegations made by Mr Page without any supporting material to establish the allegations.
[15] The difficulty in considering the allegations without any supporting evidence is further compounded by the fact that the document containing those allegations is unsigned. If the allegations made by Mr‘ Page are true, they reveal serious misconduct on the part of the Council or its oBicers, including
5 fliangailiii District Council v Page EnvC Wellington W001/09, 13 January 2009.
6 Whanganui District Council v Page, above n 3.
7 Wangailui District Council v Page [2011] NZEnvC 370 at [19]. At [13]-[15].
9 Para 5, Application documents.
10 Para 10, Application documents.
11 Para 10, Application documents.
12 Para 11, Application documents.
13 Para 23, Application documents.
IJ Para 35, Application documents.
(potentially) criminal offending. If the allegations are untrue they verge on the defamatory.
[7] His Honour said the allegations were made without supporting evidence. A number of those allegations reappear as grounds in the present appeal.
[8] On 7 December 2012, the Environment Court struck out a further application for reheating by an entity known as Waikupa Trust. ' S This related to both the Enforcement Order decision and the costs award. The Waikupa Trust alleged it was the correct owner of the subject land not Mr Page nor Ms Wilson, who were the respondents in the Enforcement Order decision. Malfeasance was alleged against the Council in that it had improperly obtained an engineer’s report from A-Build Consulting Engineers dated 22 December 2008 without the consent of or release by Mr Page or compliance with the Act. The Judge noted that the fact that owners were trustees was irrelevant to the decision, and neither was there new or important evidence or a change in circumstances that would justify a reheating. His Honour said:"
[10] ... [they] simply regurgitate matters previously put before the Court or which could have been put before the Court at its original hearing. The application does not meet the jurisdictional threshold for review of the decision.
[9] The application was struck out as being vexatious as an attempt to relitigate matters which had already been determined, not only in the original proceedings but in related applications brought by the respondents.' 7
Mr Pages’ submissions
[10] Mr Page went into some detail about the issues and evidence giving rise to the Enforcement Order decision and related proceedings. He was concerned at his inability to obtain a satisfactory reheating of or appeal from the Environment Court decisions. He considered the Environment Court should not rehear or deal with its own decisions. He had become frustrated at his attempts to obtain an independent review of the Environment Court decisions.
' 5 Wanganui District Council v Page [2012] NZEnvC 269. '6 At [10].
'7 At [I 2].
[11] Mr Page’s primary submission was that the matters that he was advancing in support of his appeal against costs were in fact eiTors of law. This came about because the matters he raised related to “flawed” or “improper” evidence that came before the Environment Court, upon which it relied to make the Enforcement Order decision. The reliance on that evidence made the Enforcement Order decision suspect or flawed. Therefore, anything that flowed from that was itself flawed. This included the costs decision.
[12]The particular matters in support of his primary submission were:
(a)That there was new evidence which supported that the District Council had submitted false invoices;
(b)The Council failed to comply with the process in relation to a number of issues and it had not complied with subdivision requirements in connection with the subject property;
(c)The application for a search waiTant was of questionable validity and the evidence obtained by it should not have been used in the enforcement order proceedings;
(d)The Environment Court did not give him adequate notice of the fixture date for the hearing so he was deprived of preparing properly for the hearing and so did not receive a fair hearing;
(e)The Council enforcement officer provided false and misleading information to the Environment Court in relation to a subdivision of the property;
(/Various invoices from the Council were made out to Mr Page personally; and
(g)Various documents should have only been used for “prosecutions” and should not have been used in the Enforcement Order proceedings. They
therefore could not be properly tested as the Environment Court had more informal rules than would apply to a prosecution.
[13] Many issues were raised in the course of Mr Page’s oral submissions which related to the Enforcement Orders and related proceedings. I have listened to them and concluded they are not relevant to the matter before me today.
[14] I now turn to the present application for leave to appeal and application to strike out the appeal.
[15] An appeal is limited to a point of law only." There is no right of appeal on the facts and it is not for the High Court to enter into a re-examination of the merits.' 9
[16] The relevant provisions concerning an application to strilceout proceedings (the appeal) are as follows 20
15.1 Dismissing or staying all or part of proceeding
(1)The court may strilce out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay: or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
(2)If the court sti ikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
[17] The Council submits that there is no error of law identified in the grounds for appeal. Therefore, there is no reasonably arguable cause of action.
l' Resource Management Act 1991, s 299.
Murphy » Takapuna Cit› Coiiiicif HC Aucltland M456\88 7 August 1989. ' 0 High Court Rules 2016, r 15.1.
[18]An error of law occurs where the decision malcer appealed from:’
(a)Applied a wrong legal test; or
(b)Came to a conclusion without evidence or one to which, on the evidence it could not reasonably have come; or
(c)Took into account matters which it should not have talcen into account;
Ol’
(d)Failed to take into account matters which it should have talcen into account.
[19] Mr Page’s notice of appeal criticises the evidence relied upon by the Environment Court. Most of that evidence relates to the Enforcement Order decision. However, two issues arose which appeared to have some relevance to the costs decision. The first concerned the invoices which Mr Page says were made out to him personally which he says should not have been part of the costs award. The second is the costs attributable to the search warrants and evidence which Mr Page says should not have been relied upon at the substantive hearing. However, Mr Page was unable to explain their relevance to the costs award other than in general terms. In any event the manner in which the Environment Court approached costs by talfing the total invoices and reducing it by two-thirds to reach a reasonable figure in the circumstances rather than itemising the detail of the three constituent invoices makes it impossible to examine those invoices in detail. The Judge was coiTect in that approach and it is not necessary to consider those two matters separately.
Was there an error of law!?
[20] I now consider the decision of the Environment Court on costs dated 11 March 2010.'2
' l Countdo›vn Properlîes (Nortliland) LUI v Dunedin Cit› Council [1994] NZRMA 145 (HC) at 153. ' 2 Wanganui Disti’ict Council » Page, above n 1.
[21] The Judge has considered the relevant issues in relation to the Council’s application for full indemnity costs. The costs application included costs for the Council’s in-house lawyer as well as the external consultants (Opus Consultants) and external lawyers.
[22] The Court referred to the factors identified in DFC v Bielby as relevant to a claim foi’ indemnity costs.” In summary these are:
(a)Aiguments were advanced without substance;
(b)The process of the Court was abused;
(c)The case was poorly pleaded or presented;
(d)The respondents failed to explore the possibility of settlement. Compromise could have reasonably been expected;
(e)The respondents took a technical or unmeritorious point of defence;
(I) Other relevant matters — including the fact if the respondents had followed their own engineering advice it would not have been necessary for their counsel to instruct its own engineers.
[23] These were appropriate considerations. His Honour considered each of them as well as the submissions made by Mr Page and the Council on the factors. I am satisfied he tools each of those factors into account. He noted the wide power that the
Court had in awarding costs but that it was to be excessed on a principled basis.24 He
was of the view that the evidence adduced in support of the enforcement orders was conclusive. He also said that Mr Page’s own inquiries had recommended similar remedial works to those of the Council supervisors and that Mr Page was not altogether unhappy with the result of the case.25 He concluded that in these
circumstances, it was inevitable the respondents would make a contribution towards
2' DFC » Bielby (1991) 1 NZLR 587.
2‘ Resource Management Act, s 285; Wanganui District Council v Page, above n 1 at [36] and [37].
" At [40]-[46].
the Council costs which would otherwise be bourne by taxpayers 26 His Honour said in the Environment Court costs are more likely to follow the event should enforcement orders be made against any party, because of the nature of proceedings. 2’
[24] I note that the usual approach in most Court proceedings is that costs follow the event.
[25] His Honour noted that costs are not intended to be punitive but rather to reimburse the successful parties for the reasonable expenses which they have met.28 He also accepted that the cost of Council officer’s time might properly be part of a costs award but that award should be approached cautiously if not reluctantly.29
[26] In conclusion His Honour ordered the respondents pay to approximately one third of the amount sought by way of costs, a total of $12,000 was awarded.
[27] His Honour indicated that he would be reluctant to award a higher level of costs without more intensive scrutiny of the details of the costs claim although that was not addressed in detail by the respondents.
The Council's submissions
[28]The Council opposes the application for leave to appeal. It says:
(a)The Environment Court decision on costs was made on 11 March 2010, nearly eight years ago,
(b)The broad ranging nature of the submissions and grounds which Mr Page put forward in support of his notice of appeal made it difficult to identify exactly what grounds are being advanced,
(c)In any event the matters raised by Mr Page go to the Enforcement Order decision which is the subject of an extant application for reheating in
2‘ At [39] and [47].
" At [37]; Ro›vell v Tasman District Council 7/9/96 Ellis J, HC Nelson M14\96. " Wanganui District Council v Page, above n 1, at [48].
29 At [49].
the Environment Court. The Environment Court has invited an application for strike out of the reheating application which is yet to be heard.
[29]The Council submits in support of its application to strilce out the appeal that:
(a)The matters raised relate to the Enforcement Order decision. There is no error of law.
(b)It will suffer prejudice and delay largely because of the unintelligible submissions that have been filed. The application is frivolous and vexatious and an abuse of the Court’s process.
(c)It was not clear whether the application related to the Enforcement Order decision or the costs award.
Discussion
[30] The present appeal is based on allegations of errors of fact made by the Environment Court in the Enforcement Order decision. It seeks to relitigate that decision.
[31] As will be apparent from my comments on the Environment Court decision I am of the view that the Environment Court Judge has not made any eiTor of law. He was entitled to take into account the strength of the evidence and inevitability of the outcome in the Enforcement Order decision. He tools into account how the case had been conducted by the respondents (Mr Page and Ms Wilson) and he applied the appropriate legal tests in considering costs and came to a conclusion which he could reasonably come to on the evidence available. He tools into account relevant matters and did not take into irrelevant matters. In all he undertook a considered analysis of the matters relating to an award of indemnity, including a careful review of the respondent’s submissions.
[32] The Judge awarded costs of one third of the total sought. The sum appears modest in the circumstances and well within what might be expected in a case of that
nature. He did not scrutinise the details of the costs as the respondents had not addressed them in detail in their submissions. Mr Page has used a similar approach here. Mr Page tools a global approach to his criticism of the costs order based on the central submission that as the “cogs” (evidence) upon which the Enforcement Order decision was based were flawed so the costs decision was flawed.
Leave to appeal
[33] Given the history of this matter, I am of the view that to allow leave to appeal almost nine years after the cost decision and 10 years after the substantive decision would be unfairly prejudicial to the respondent Council.
[34] The matters raised by Mr Page in support of his appeal have been dealt with in previous decisions of both the Environment Court and this Court. Mr Page is having another run at them in his further application for rehearing to the Environment Court. It is unfair to the Council to have to deal with the issues again in this appeal. In any event they relate to factual matters and not errors of law. In addition, the application put forward contained some grounds that were unintelligible. Initially the Council was under the impression that Mr Page was seelcing an appeal and rehearing in relation to the Enforcement Order decision itself. This was understandable given that the grounds for the appeal related to the evidence relevant to the Enforcement Order decision.
[35] There is no reasonably arguable cause of action or case to be made on appeal on the grounds put forward by Mr Page. They all relate to matters of fact which are outside the jurisdiction of this Court on appeal. He has not identified any proper “errors of law” that would malce this case arguable.
[36] Secondly, the appeal will cause prejudice to the Council. For the reasons I have set out above, the Council has been dealing with this matter on a number of fronts. It has absorbed substantial time and resources for all parties as well as the Environment Court. Nearly 10 years have passed since the Enforcement Order
decision.' 0 The Council should not be required to relitigate that by way of appeal to this Court.
[37] I am also of the view that this appeal verges on an abuse of process. Mr Page is clearly passionate about righting what he perceives to be a flawed process leading to the enforcement orders. He has attempted to relitigate matters on a number of occasions both in this Court,3' and in the Environment Court and made serious allegations of fraud and malfeasance against court officers without supporting evidence. There comes a time when these attempts to relitigate the same issues become an abuse of process. Counsel for the respondent indicated that the Environment Court will likely consider whether the litigation pursued by Mr’ Page is vexatious when the further application by Mr Page for reheating comes before it. That is a matter for the Environment Court.
[38] I have for the reasons outlined above come to the conclusion that leave to appeal should not be granted.
[39] I am also of the view that were it necessary to consider the application for strilie out, it would have been successful for similar reasons.
[40] Accordingly, the application for leave to appeal is dismissed. I also refer to my comments on the application to strilie out the appeal which I would have granted.
COStS
[41] The Council sought costs on a category 1 basis. There is no reason why costs should not follow the event in this matter. The Council indicates that while it sought costs it would consider whether or not it enforced them in the circumstances.
[42]However, I do not thinly the proceedings warrant category 1 classification. In
an earlier decision of this Court in relation to an appeal against the Enforcement Order decision the Council was awarded costs on a 2B basis.32 I consider that is an
' 0 Whanganui Disti’ict Court » Page, above n 3; was delivered on 29 May 2009.
3' Page v Wllangailiii District Council [2016] NZHC 654,' Page v Wanganui District Council, above
n 4.
32 Page v 0!angai1ui District Council, above n 4, at [19] (Kós J).
appropriate basis for a costs award here. If details cannot be agreed, the Registrar may fix the final sum.
Solicitors:
I€ensington Swan, Wellington
1