PONO Providers of Natural Order Charitable Trust v Hamilton City Council

[2007] NZCA 515

IN THE COURT OF APPEAL OF NEW ZEALAND

CA445/07
[2007] NZCA 515

BETWEENPONO - PROVIDERS OF NATURAL ORDER CHARITABLE TRUST

First Appellant

ANDALBERT MCQUEEN

Second Appellant

ANDTE AMOHIA MCQUEEN

Third Appellant

ANDHAMILTON CITY COUNCIL

Respondent

Hearing:12 November 2007

Court:William Young P, Glazebrook and Chambers JJ

Counsel:A and T A McQueen, Second and Third Appellants in person

D A Thresher for Respondent

Judgment:19 November 2007 at 10 am

JUDGMENT OF THE COURT

AThe appellants’ application for special leave to appeal out of time is dismissed. 

B        The second and third appellants must pay to the respondent costs in the sum of $1,500, plus usual disbursements (excluding overnight accommodation).  The second and third appellants’ liability is joint and several. 

REASONS OF THE COURT
(Given by Chambers J)

[1]       The Hamilton City Council, the respondent, impounded Waru because he was not registered under the Dog Control Act 1996.  Albert and Te Amohia McQueen, the second and third appellants, then brought a claim in the High Court at Hamilton, both in their own capacity and purportedly as trustees of PONO – Providers of Natural Order Charitable Trust.  Whether there is in fact such a charitable trust is unknown to us.  That trust, if it exists, is the first appellant.  We shall refer to the appellants collectively as the McQueens.

[2]       The defendants were originally Michael Redman, the then Mayor of Hamilton, and Graeme Fleming and Michelle Goodin, both council officers.  At some point and in a way unknown to us, the claim against them seems to have transmogrified into a claim against the Hamilton City Council. 

[3]       The McQueens sought a writ of habeas corpus, on the ground that Waru’s custody was unlawful, an injunction that Waru be delivered up, and damages.  The statement of claim contained huge amounts of irrelevant material and was frankly baffling. 

[4]       The council applied to strike out the statement of claim on the basis that it disclosed no reasonable cause of action or was otherwise an abuse of process of the court.  Williams J struck it out: HC AK CIV 2007-419-533 7 June 2007. 

[5]       The McQueens did not appeal within the appeal period.  Accordingly, they now need special leave to appeal in terms of r 29(4) of the Court of Appeal (Civil) Rules 2005. 

[6]       It is well established that an application for special leave may be declined if the proposed appeal has no chance of success: State Insurance Ltd v Brooker (2001) 15 PRNZ 493 at [19] (CA); Ngati Tahinga & Ngati Karewa Trust v The Attorney‑General of New Zealand CA73/02 27 June 2002 at [3]; Havanaco Ltd v Stewart (2005) 17 PRNZ 622 at [11] (CA).  This proposed appeal is in that category. 

[7]       A writ of habeas corpus is not available as the Habeas Corpus Act 2001 is inapplicable other than to human beings.

[8]       The injunction is not available as Waru has been euthanized. 

[9]       There could be a claim for damages against the council if its action in having Waru impounded and then euthanized was unlawful, but what has been pleaded is so far from any recognised legal cause of action that it would be an abuse of process to permit the McQueens to proceed on this statement of claim.  In Marshall Futures Ltd (in liquidation) v Marshall (1991) 3 PRNZ 200 (HC), Tipping J made, at 207, the following observation which has been much quoted since:

It seems to me that in a case where the plaintiff can undoubtedly start again, being within time, the Court should only strike out if satisfied that on the best view of the facts from the plaintiff’s point of view he cannot succeed at law, or alternatively where the pleading is so deficient as to require a de novo start rather than an amendment.  As Mr Goddard aptly put it, the question will often be one of degree.  The difference, using by analogy the terminology of motor vehicle insurance, is between a pleading which is a total write-off and one which is deficient but is capable of effective repair. 

[10]     This pleading is so deficient that a de novo start is required: it is, without doubt, a total write-off.  The statement of claim as drafted has no chance of success and was accordingly correctly struck out.

[11]     Because the proposed appeal has no merit, we decline special leave to appeal out of time. 

[12]     Mrs Thresher, for the council, sought costs.  She sought indemnity costs on the basis that this application was doomed to failure and just the latest in a series of hopeless applications.  While we can understand the council’s frustration, we are mindful that the appellants are lay litigants, who have been acting throughout without the benefit of legal advice.  They have now lost their loved dog, albeit through their own failure to take the appropriate steps which Williams J suggested to them.  In all the circumstances, we think the standard costs award on a miscellaneous motion is appropriate. 

[13]     We make two observations for the McQueens’ benefit.

[14]     First, this decision does not prevent them from commencing a fresh proceeding against the council for damages for the loss of Waru.  That claim would have to be properly pleaded, utilising recognised causes of action.  Only one remedy would now be obtainable: damages.  On the basis of court documents filed to date, we consider it unlikely, with respect, that the McQueens have the expertise to draft a proper statement of claim.  If they wish to pursue this matter, they should obtain legal advice. 

[15]     This comment should not be taken as encouragement for a fresh proceeding.  On the basis of what we currently know, we strongly suspect the impounding of Waru was lawful.  There seems no dispute that Waru was unregistered.  The impounding was accordingly lawful under s 42(2) of the Dog Control Act.  It is irrelevant that the seizure notice contained a reference to “section 42(a)” rather than “section 42(1)”.  The giving of a seizure notice is not an essential step in the lawfulness of the seizure.  In any event, elsewhere on the form, it was correctly stated that the dog had been “seized and removed … under section 42 of the Dog Control Act 1996”.  Later in the form, the dog control officer had made explicit the ground for the seizure, namely “failing to register dog” (albeit with an incorrect reference to s 42(a) rather than s 42(1)). 

[16]     Nor is there anything in the ownership point Mr McQueen raised.  He acknowledges he was the owner; it does not matter at all for the purposes of the Dog Control Act whether he was the owner in his own right or as trustee of the first appellant. 

[17]     We also strongly suspect the subsequent euthanasia was lawful.  Mr McQueen did not pay the necessary fees or collect the dog.  So far as we can see, the requisite disposal notice was given under s 69(2) of the Dog Control Act.  When that notice was not complied with, the council was entitled to destroy the dog, as it did. 

[18]     Mr McQueen’s references to the 1835 Declaration of Independence, the Treaty of Waitangi, Maori sovereignty, and tikanga are not justiciable. 

[19]     The second observation we make is as to the effect of the McQueens’ liability for costs being “joint and several”.  This means the council can look to either Mr McQueen or Mrs McQueen to meet the entire obligation. 

Solicitors:
Swarbrick Dixon, Hamilton, for Respondent