Wislang v Attorney-General - [2021] NZHC 993

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 993

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 Respondent

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

Judgment:

5 May 2021

JUDGMENT OF GRICE J

(Application for stay of costs orders pending appeal)

[1] Dr Wislang made an application for judicial review against relevant Ministers, WorkSafe and White Island Tours Ltd concerning alleged failures leading to the loss of lives in the Whakaari/White Island eruption on 9 December 2019.

[2] Dr Wislang abandoned his claim against White Island Tours Ltd partway through the hearing of the matter on 31 August 2020. The other applications were dismissed.1

1 Wislang v Attorney-General [2020] NZHC 2588.

WISLANG v ATTORNEY-GENERAL [2021] NZHC 993 [5 May 2021]

[3] Following the dismissal of the judicial review applications, orders for costs were made in favour of:

(a)White Island Tours Ltd: on the basis of 2B costs plus a 50 per cent uplift. The uplift was largely due to the late abandonment of the application against White Island Tours Ltd and the failure by Dr Wislang to heed judicial warnings about the difficulties he faced in the applications for judicial review;2

(b)the Attorney-General on a 2B basis;3

(c)WorkSafe on a 2B basis.4

[4] Dr Wislang lodged an appeal against the substantive judgment in relation to WorkSafe New Zealand only. This appeal was not pursued and was deemed abandoned on 2 February 2021.

[5]White Island Tours have taken steps to enforce its costs judgment of

$62,240.50. A bankruptcy petition based on failure to pay those costs has been filed and is due to be called in the High Court in Dunedin on 6 May 2021.

[6] Dr Wislang has now filed an application for leave to extend time to appeal against the costs judgment. The present application is for a stay pending the determination of the appeal. The sole ground Dr Wislang puts forward for seeking a stay of enforcement of the costs judgment is that the bankruptcy proceedings lodged against him, if successful would defeat the purpose of the appeal.

[7] White Island Tours was in touch with Dr Wislang before taking the steps leading to the bankruptcy proceedings. Dr Wislang indicated that he intended to honour the costs award but wanted to enter into an arrangement with the respondents to pay the debt to all “three respondents” over time. White Island Tours responded by an email on 19 February 2021 asking to see Dr Wislang’s sworn statement of assets

2      Wislang v Attorney-General (Costs) [2020] NZHC 3172 at [50]–[53].
3      Wislang v Attorney-General (Costs) [2020] NZHC 3172 at [31].
4      Wislang v Attorney-General (Costs) [2020] NZHC 3172 at [32]–[38].

and liabilities, trust interests and living expenses…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 993
Decision Date: 5 May 2021

CaseChat Overview and Summary

Dr Wislang filed an application for a stay of enforcement of costs pending an appeal against the costs orders made in his favour following a failed judicial review application. The application was dismissed by Grice J. Dr Wislang had applied for judicial review against various respondents in relation to the Whakaari/White Island eruption. The application was dismissed, and costs were awarded against him. Dr Wislang appealed against the costs awarded against Worksafe, but the appeal was abandoned. White Island Tours sought to enforce the costs awarded against Dr Wislang and had lodged a bankruptcy petition against him. Dr Wislang applied for a stay of enforcement of the costs pending an appeal against the costs orders. The application was dismissed.

The Court considered the relevant factors in determining whether to grant a stay, including the merits of the appeal, the bona fides of the appellant, and the effect on third parties. The Court found that the appeal was weak, and the merits of the substantive appeal were a factor for the Court to consider. The Court also found that Dr Wislang had been responsible for substantial delays in pursuing the appeal and had failed to properly engage with White Island Tours despite its invitation. The Court found that the parties, particularly White Island Tours, had incurred substantial costs in relation to the judicial review proceedings, and granting the stay would leave White Island Tours without the ability to enforce its costs orders until the application for extension of time and any appeal was heard. The Court found that there was no public interest in the proceedings, and the factors considered relevant to the application weighed against the grant of a stay. Accordingly, the application for stay was dismissed. White Island Tours was awarded costs against Dr Wislang on the stay application.

Orders