Walmsley v Aitchison
[2019] NZHC 1551
•3 July 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2016-485-485
[2019] NZHC 1551
BETWEEN HEATHER WALMSLEY, DAVID CULLEN WALMSLEY AND WALMSLEY
ENTERPRISES LIMITED
ApplicantsAND
PETER AITCHISON AND SYLVIA AITCHISON
Respondents
Hearing: 17 May 2019 Counsel:
D C Walmsley in Person
A F D Cameron for Respondents
Judgment:
3 July 2019
Reissued:
4 July 2019
JUDGMENT OF CLARK J
Introduction
[1] On 30 June 2017, I determined an appeal and a cross-appeal against costs orders made in the Environment Court following proceedings involving the present parties.1
[2] The applicants (who I will refer to simply as Mr Walmsley) applied for recall of my 2017 costs appeal decision. For reasons set out in my judgment delivered
1 Walmsley Enterprises Ltd v Aitchison [2017] NZHC 1504, [2018] NZRMA 117 [2017 Costs appeal decision]; and Aitchison v Walmsley [2016] NZEnvC 114 [EC Costs decision].
WALMSLEY, WALMSLEY AND WALMSLEY ENTERPRISES LIMITED v AITCHISON AND AITCHISON [2019] NZHC 1551 [4 July 2019]
23 November 2018, the application for recall was dismissed.2 Mr Walmsley now applies for leave to appeal my refusal to the Court of Appeal.
Background to this litigation
[3] The Environment Court awarded costs following enforcement proceedings brought in that Court seeking the removal of a structure the Walmsleys had erected on the boundary between them and their neighbours, the Aitchisons.3
[4] The following description of the context in which the EC Costs decision was reached is taken from the Court of Appeal’s decision declining the Mr Walmsley’s application for leave to bring a second appeal against the EC Costs decision.4
Declaratory order proceedings
[3] Mr Walmsley and his mother own a residential property through their company, Walmsley Enterprises Ltd. The Aitchisons own the residential property directly above the Walmsley property — they share a common boundary. The Walmsleys erected a four-metre high, 22-metre long structure on that boundary, comprising a solid wall with a walkway and play structure attached.
[4] The Aitchisons issued proceedings against Walmsley Enterprises and the Wellington City Council, seeking declarations under s 310(c) of the Resource Management Act that the structure contravened that Act. We refer to these proceedings as the Declaratory Order proceedings. The Aitchisons argued that the Council was wrong to view the structure as a permitted activity and therefore as not requiring a resource consent. On 17 September 2015 the Environment Court declared that the structure was not a permitted activity, it therefore did require resource consent and, for these reasons, the use of the land for the structure contravened s 9 of the Resource Management Act. That decision was then appealed to the High Court, which ultimately upheld the Environment Court’s decision.
Enforcement order proceedings
[5] Before the appeal in the High Court was determined, the Aitchisons brought proceedings in the Environment Court seeking enforcement orders under ss 17 and 319 of the Resource Management Act requiring the Walmsleys to remove the structure. These enforcement proceedings were brought on the basis that, even if the structure complied with the District Plan, the Walmsleys had failed to mitigate the adverse effects of that structure as required by s 17 of the Resource Management Act.
2 Walmsley Enterprises Ltd v Aitchison [2018] NZHC 3071 [Recall decision].
3 Aitchison v Walmsley [2016] NZEnvC 13 [EC Enforcement decision].
4 Walmsley v Aitchison [2017] NZCA 500 (footnotes omitted).
[6] The Environment Court upheld that argument, finding significant and severe adverse effects on the residential amenities of the Aitchison’s property because the structure:
(a)Was overbearing and dominant from within the Aitchison property.
(b)Caused profound loss of sunshine and a reduction in natural light.
(c)Caused loss of sweeping views of the sea which was described as significant and severe.
(d)Caused loss of privacy with those on the top of the walkway being able to see from close up into the internal spaces of the Aitchisons’ home.
[7] The Court found that enforcement orders should be issued requiring the removal of substantial parts of the play structure and fence. That decision has not been appealed. The structure has now been removed.
Costs decision
[8] The Aitchisons sought indemnity costs for the enforcement proceedings in excess of $100,000. On 10 June 2016 Judge Dwyer awarded costs of $72,500 under s 285(1) of the Resource Management Act, which provides:
285 Awarding costs
(1) The Environment Court may order any party to proceedings before it to pay to any other party the costs and expenses (including witness expenses) incurred by the other party that the court considers reasonable.
…
[9]Judge Dwyer said:
[28] The factors which I have identified above as to the significant and severe adverse effects of the structure on the Aitchisons’ amenity, when combined with the Walmsleys’ knowledge that there would be adverse effects on the Aitchisons who would just have to put up with it, lead me to the view that it is reasonable that there should be a very substantial costs award in this case. …
[5] Since the Court of Appeal’s decision in November 2017, Mr Walmsley has continued to challenge the outcome in the Environment Court. Mr Cameron, counsel for the respondents, brought to my attention during the hearing the steps that Mr Walmsley has taken to challenge the EC Costs decision. I take the time to set them out in light of Mr Cameron’s submission that “with the greatest respect to
Mr Walmsley’s sense of injustice”, the arguments have been “thrashed to death” in every court and it needs to stop.
(a)In 2017, I dismissed both Mr Walmsley’s appeal and the Aitchison’s cross-appeal.5.
(b)Mr Walmsley appealed my decision. The Court of Appeal dismissed his appeal.6
(c)Mr Walmsley then applied to the Court of Appeal to recall its decision.
The Court of Appeal declined to recall its decision.7
(d)Mr Walmsley submitted memoranda that the Court of Appeal treated as an application for recall. Speaking of his attempt “to relitigate matters already addressed” the Court of Appeal issued the following direction:8
[5] We are not prepared to entertain multiple applications for recall and further memoranda. Our decision is final. We direct the registry not to accept for filing any further documents filed on behalf of the applicants regarding the application for leave to appeal.
(e)Mr Walmsley full-circled back to the Environment Court seeking recall of the 2016 decision that spawned the appeals. The application was declined.9
(f)Remarkably, Mr Walmsley made a second application for recall of that same decision. In a considered judgment in which Judge Dwyer “determined to revisit the matter”, Mr Walmsley’s application was declined.10
(g)On 19 December 2018, Mr Walmsley filed the present application for
5 2017 Costs appeal decision, above n 1.
6 Walmsley v Aitchison, above n 4.
7 Walmsley v Aitchison [2017] NZCA 512.
8 Walmsley v Aitchison CA417/2017, 14 November 2017 (Minute).
9 Aitchison v Walmsley [2018] NZEnvC 4.
10 Aitchison v Walmsley [2018] NZEnvC 7 at [4].
leave to appeal my refusal to recall the 2017 Costs appeal decision. Regrettably, as a consequence of miscalculating the number of days within which Mr Walmsley had to file an appeal, I advised Mr Walmsley at a case management conference that he had filed out of time and consequently the Court lacked jurisdiction to deal with his application for leave to appeal. The next day Mr Walmsley brought the error to the Court’s attention. I immediately issued a minute apologising and listing the application in the Judges Chambers List the following week.
This application for leave to appeal
[6] Mr Walmsley filed a detailed eight-page application in which he sets out the grounds for the orders sought, the doctrines and statutes upon which he relies, the reasons for submitting a miscarriage of justice has occurred, the background to the declaratory order proceedings, and a section on “res judicata, issue estoppel and abuse of process”.
[7]The application concludes by setting out the judgment sought from the Court:
Leave is granted to argue that Justice Clark recalls and reconsiders her costs decision with due consideration for the miscarriage of justice caused by disregarding the doctrine of Res Judicata and Issue Estoppel regarding the unappealed fact that the structurers effects were expressly recognised and controlled to the satisfaction of Environment Court Judge Thompson in 2015, and that Judge Thompson was satisfied that the Play structure had a certificate of compliance and did not require a resource consent to further control effects, and that the Walmsley’s Knowledge of the effects before Environment Court Judge Dwyer, came directly from the decision of Environment Court Judge Thompson. We submit that it is not appropriate to hold the Walmsley’s liable for Judge Thompson’s knowledge of the effects.
[8] Mr Walmsley filed three sets of written submissions. At the hearing he made focussed submissions highlighting what he regards as a “miscarriage of justice” because he has not been heard.
[9] The respondents oppose the application for leave to appeal on the grounds the High Court applied well-established principles relevant to the determination of an application for recall. More substantively, Mr Cameron characterised the application
for leave to appeal as being in the nature of a substantive appeal on the merits. Therefore this Court lacks jurisdiction to grant leave to appeal a decision declining an application for the recall of a judgment. The Court of Appeal has ruled on the point now advanced by Mr Walmsley. The Court of Appeal decided the question of law advanced by the appellant in the Court of Appeal, and the Supreme Court has determined the High Court has no power to recall or set aside judgments on questions of law that have been the subject of appellate determination.11
Discussion
[10] There is a prior procedural question to be addressed before turning to the merits of the application. I asked Mr Walmsley at the outset why he believed he needed leave from the High Court to appeal my recall decision. Mr Walmsley said he was told by the Court of Appeal registry that he needed to apply to the High Court for leave to appeal.
[11] The Court of Appeal’s jurisdiction to hear and determine appeals is conferred by s 56 of the Senior Courts Act 2016. Section 56 provides:
56 Jurisdiction
(1)The Court of Appeal may hear and determine appeals—
(a)from a judgment, decree, or order of the High Court:
(b)under the Criminal Procedure Act 2011:
(c)from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.
(2)Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
11 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804.
[12] Thus, the first question is whether my refusal of Mr Walmsley’s application for recall was an “order or decision of the High Court made on an interlocutory application”.12
[13] In Koyama v New Zealand Law Society, the Supreme Court held that a decision refusing an application to recall was a decision based on an interlocutory application. Consequently, an appeal to the Supreme Court was barred by s 8(c) of the Supreme Court Act 2003.13 The Supreme Court cited McGechan on Procedure at [11.9.01(1)] in support of its conclusion that an application to recall a judgment requires an interlocutory application.14 The commentary at that time stated “an application to recall a judgment requires an interlocutory application”.
[14]The commentary at [HR11.9.01(1)] now states:15
A formal interlocutory application is not invariably required, for example if the correction sought is minor. But, as a minimum, a formal memorandum should be filed and served seeking a recall and explaining the reasons for the application…
[15] Palmer J has also said that applications for recall are interlocutory applications.16
[16] For the purpose of determining whether an order or decision of the High Court is one made on an interlocutory application, the definition of “interlocutory application” in the Senior Courts Act must prevail.17
interlocutory application—
(a)means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—
(i)an order or a direction relating to a matter of procedure; or
(ii)in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and
12 Section 56(3).
13 Koyama v New Zealand Law Society [2014] NZSC 30 at [5].
14 At [5].
15 McGechan on Procedure (online ed, Thompson Reuters) at [HR11.9.01(1)].
16 Tamihere v Commissioner of Inland Revenue [2018] NZHC 266 at [6].
17 Senior Courts Act 2016, s 4(1) definition of “interlocutory application”.
(b)includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies
[17] It seems to me that, whether it is made by a formal “application” or a “memorandum” or by other means,18 an application to recall a judgment is (in civil proceedings) an application for “some relief ancillary to that claimed in a pleading”. Circumstances such as the present, where appeal rights have been exhausted and there is abusive recourse to the recall jurisdiction, sit uncomfortably with the description of a proceeding for “some relief ancillary to that claimed in a pleading”. But a broad approach to the definition is consistent with the statutory object of requiring a prospective appellant to obtain leave to appeal an interlocutory decision rather than allowing an appeal as of right, which was the procedure under the Judicature Act 1908.19 With the enactment of the Senior Courts Act, the scope of appeal rights from decisions of the High Court on interlocutory matters is reduced.20
[18] However, in the particular circumstances of this proceeding, s 56(3) does not apply. That is a consequence of the transitional provisions in the Senior Courts Act. In Sutcliffe v Tarr, the Court of Appeal concluded that the effect of sch 5 of the Senior Courts Act is that:21
… all proceedings commenced in the High Court prior to 1 March [2017] are to continue under the former Judicature Act regime, and that includes appeals from those proceedings to this Court or the Supreme Court.
[19] The relevant proceeding in this case is Mr Walmsley’s notice of appeal against the EC Costs decision. That appeal was filed on 10 June 2016. Strictly speaking then, leave to appeal my recall decision is not required, that decision having been given in a proceeding filed before the Senior Courts Act came into force. Pursuant to the transitional provisions, the proceeding continues under the former Judicature Act with the consequence that leave to appeal to the Court of Appeal is not required.
18 As with the several documents Mr Walmsley sent electronically to the Court of Appeal, which the Court referred to in its minute, above n 8, at [4].
19 Judicature Act 1908, s 66; and see Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [31].
20 See Sutcliffe v Tarr [2017] NZCA 360, [2018] 2 NZLR 92.
21 At [33].
[20] Practically speaking, this outcome does not avail Mr Walmsley. The Court of Appeal has directed the registry not to accept for filing any further documents regarding the appeal.
[21] In any case, for the reasons that follow, even if the Court had jurisdiction I would have declined Mr Walmsley’s application for leave to appeal.
[22] When I asked Mr Walmsley to address the Recall decision and why he says it is wrong, Mr Walmsley summarised his position in this way:
(a)He did not fail to control the effects of the structure.
(b)Its effects were in compliance with the District Plan and the Resource Management Act. Its effects were not offensive or objectionable and did not require a resource consent.
(c)That was the position of the Council before the Environment Court in 2015.
(d)Mr Walmsley seeks to have his position reflected in the Costs appeal decision and to have the questions of res judicata and issue estoppel addressed.
[23]Mr Walmsley asked rhetorically how he has ended up with a costs liability of
$72,500 when he did everything by the book as far as the Council was concerned. The Council had oversight of his construction; issued a certificate in the nature of a certificate of compliance; and defended the structure in the Environment Court. Mr Walmsley sees himself as suffering a miscarriage of justice because he has not been heard. Mr Walmsley said he just wants to do everything he can to address that miscarriage and if there is nothing he can do he will just have to accept that.
[24] Mr Walmsley submitted he is challenging the costs outcome because there has been no reasonable consideration of Judge Thompson’s decision on the effects of the structure; that costs have been awarded in light of Mr Walmsley’s knowledge of the
effects of the structure, when his knowledge of the effects was sourced to the Council’s advice that he needed no consent to control the effects.
[25] The present application is yet a further attempt to relitigate a point that has been addressed and determined by the Environment Court, the High Court and the Court of Appeal. The decision Mr Walmsley seeks to recall had been upheld by the Court of Appeal. It is extraordinary that he would seek to relitigate the issue in this way. The application is completely lacking in merit and constitutes an abuse of process.
[26] Mr Cameron referred to Mr Walmsley’s statement that his perceived sense of injustice brings him back to the court but that “after today” he would leave it. Mr Cameron said Mr Walmsley previously made similar comments but he finds other avenues to explore.
[27] In his refusal to accept the costs outcome, and by his repetitive attempts to unpick the many decisions bearing on the issue, he has embarked on a fruitless cycle of litigation, which is burdening the respondents and the court processes. Mr Walmsley’s conduct comes at a cost, to the respondents and in terms of judicial resources.
[28] My perception is that Mr Walmsley’s sense of grievance means he may be unable to resist launching further unmeritorious challenges. He needs to be restrained from doing so.
[29] I have considered making an order under s 166 of the Senior Courts Act restraining Mr Walmsley, Mrs Walmsley and Walmsley Enterprises from commencing or continuing in a senior court, or other court or tribunal, a civil proceeding in relation to the structure that was erected on Mr Walmsley’s boundary with the Aitchisons, including any matters of costs. I consider the respondents, and the court’s processes are sufficiently protected by the direction recorded at [31] below.
Result
[30]The application for leave to appeal is dismissed.
[31] The registry is directed not to accept for filing any further documents filed on behalf of the applicants regarding the 2017 Costs appeal decision.
[32]The respondents are entitled to scale costs which I award on a 1A basis.
Karen Clark J
Solicitors:
Brookfields Lawyers, Wellington
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