Wislang v Attorney-General

[2021] NZHC 1865

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-000006

[2021] NZHC 1865

BETWEEN

MILES ROGER WISLANG

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

AND

WHITE ISLAND TOURS LTD

Second Respondent

AND

WORKSAFE NEW ZEALAND

Third Respondent

On the papers:

Counsel:

Applicant in person

K Stephen and A Piaggi for First Respondent

G Nicholson and O Towle for Second Respondent T Bremner and S McKechnie for Third Respondent

Judgment:

22 July 2021

JUDGMENT OF GRICE J

(application for leave to appeal refusal of stay to appeal)

[1]                 Mr Wislang has applied for leave to appeal the refusal of an application for a stay of execution of the costs order I made on 2 December 2020.1 The application was dated 4 June 2021 and filed on 8 June. I directed it be served on the respondents who had 10 days from 16 June 2021 to respond and Mr Wislang had a further five days to reply. The matter was then to be dealt with on the papers.2

1      Wislang   v   The   Attorney-General   [2020]   NZHC   3172   (costs   decision).      Wislang v The Attorney-General [2021] NZHC 993 (refusal to grant stay).

2      Minute of Grice J 16 June 2021.

MILES ROGER WISLANG v THE ATTORNEY-GENERAL [2021] NZHC 1865 [22 July 2021]

[2]                 The respondents filed a joint memorandum in accordance with the timetable opposing the stay. The respondents pointed out that Mr Wislang had been bankrupted on 11 June 2021 but had appealed that adjudication.

[3]                 The present application has not automatically been stayed with Mr Wislang’s bankruptcy.3 Therefore, I consider it appropriate that I deal with the matter now as I had indicated in my minute of 16 June 2021.

[4]                 The key considerations in dealing with an interlocutory application leave to appeal under s 56(3) of the Senior Courts Act is the extent to which the application raises a seriously arguable and sufficiently important question. The requirement for leave to appeal is a ‘filtering mechanism’ to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.4

[5]                 General Principles the court considers when determining an application for leave to appeal are:5

(a)A high threshold exists for the granting of leave. An allegation of an error of law or fact is generally insufficient. An applicant needs to raise a genuinely arguable error.

(b)Leave should only be granted where the circumstances warrant the delay and costs associated with an appeal.

(c)The alleged error needs to be of general or public importance that requires determination, or otherwise to be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.

3      Insolvency Act 2006, s 76 provides that certain proceedings are halted although the court may grant leave to continue proceedings already started. These relate to proceedings to recover any debt provable in the bankruptcy. This application relates to judicial review proceedings.

4      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

5 At [9].

[6]                 The Court must stand back and assess, in a pragmatic and realistic way, whether the interests of justice are served by granting leave to appeal.6

[7]                 Therefore, the central issue is whether there is anything arguable or important in Dr Wislang’s present Application for Leave that would meet the high threshold for leave under s 56(3).

[8]The respondents submit that there is not.

[9]                 I agree. There is no merit in the application for leave to appeal the stay. As Mr Wislang has been adjudicated bankrupt the only credible basis for the application for stay has been spent. Nothing of public importance has been raised in Mr Wislang’s present application and Mr Wislang’s bona fides have been questioned in earlier decisions relating to these proceedings.7

Conclusion

[10]             Therefore, the application for leave to appeal the refusal to grant a stay is dismissed.

Costs

[11]             White Island Tours has applied for costs on this application on a 2B basis for the preparation of the joint memorandum in opposition to the Application for Leave, in the sum of $3,585. The proceedings have been categorised as 2B in terms of the cost schedule to the High Court Rules. In the circumstances, costs should follow the event and accordingly I award costs as sought together with reasonable disbursements.

Grice J

Solicitors:           Crown Law, Wellington for first respondent

Anthony Harper, Auckland for second respondent Simpson Grierson, Wellington for third respondent

Copy to:            The applicant

6      Finewood Upholstery Ltd v Vaughan, above n 4, at [14].

7      Wislang v Attorney-General & Ors [2021] NZHC 993 at [17); White Island Tours Limited v Wislang [2021] NZHC 1386 at [44].