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 to enable it to consider an offer for payment of the outstanding debt by instalment. Dr Wislang did not respond to that request nor has he made any proposal.

[8]                  As the only ground for the stay relates to the bankruptcy petition, in practical terms there are no grounds put forward for the stay of the enforcement of costs in so far as they relate to WorkSafe or the Attorney-General. Neither the Attorney-General nor WorkSafe have sought to enforce their costs awards.

Principles

[9]                  Dr Wislang’s stay application states it is made under r 20.10 of the High Court Rules 2016 which applies to appeals to the High Court but not appeals from it.5 Nevertheless, this Court has jurisdiction to make the order Dr Wislang seeks under   r 12.3 of the Court of Appeal (Civil) Rules 2005 which empowers the court appealed from on an interlocutory application to order a stay of the proceeding in which the decision was given.

[10]The relevant considerations include:6

(a)whether the appeal may be rendered nugatory by the lack of a stay;

(b)the bona fides of the appellant as to the prosecution of the appeal;

(c)whether the successful party will be injuriously affected by the stay;

(d)the effect on third parties;

(e)the novelty and importance of questions involved;

(f)the public interest in the proceeding;

(g)the overall balance of convenience; and

5      Concrete Structures (NZ) Ltd v NMHB Ltd 2019 NZHC 268 at [12]–[13].

6      Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZCA 377, [2017] 23 PRNZ 598 at [10].

(h)the apparent strength of the appeal.

[11]              As I have noted, Dr Wislang’s only ground here is in relation to the bankruptcy proceedings issued by White Island Tours which he says if successful will defeat the purpose of his appeal.

[12]              Dr Wislang does not refer to the specified ground in his notice of appeal (the bankruptcy proceedings) in his submissions but submits:

(1)The merits of the substantive appeal are not properly a factor for this Court to consider in determining the stay application.

(2)Any delays on Dr Wislang’s part on bringing the proceeding either in the High Court or the Court of Appeal are not relevant for the purposes of this determination.

(3)The Court should consider the grounds in his application for leave to appeal the costs judgment out of time, in determining this application. These grounds are put forward as:

(i)The Court misapplied legal principles in issuing the cost judgment, resulting in costs awards in favour of the respondents. Dr Wislang alleges the Court ordered indemnity costs against him and says these costs were unjustly excessive and wrongly punitive.

(ii)Dr Wislang’s substantive application for judicial review was brought in the public interest meaning he could not be penalised on costs.

(iii)any delay in appealing the costs judgment was due to his stress syndrome and a consequent fall that he had around mid-March 2021. The costs judgment appeal was due to be filed on or before 25 January 2021.

[13]In relation to those matters, I note:

(i)The merits of the appeal: these are a factor for this Court. A relevant consideration is the apparent strength of the appeal. The strength of the application for extension for time to appeal will take account of the apparent strength of the appeal. In my view, the merits of Dr Wislang’s appeal are weak. Dr Wislang’s judicial review application was misconceived. The statement of claim did not point to a statutory power of decision exercisable or exercised by the responsible Ministers related to Whakaari.7 There was no relevant statutory power of decision identified in relation to the respondents in the events leading up to Whakaari.8 The defects in Dr Wislang’s pleadings had been pointed out on a number of occasions at case management conferences.9 In relation to White Island Tours Ltd, there is no extant appeal of the substantive judgment. Dr Wislang abandoned his claims against White Island Tours partway through the hearing.

(ii)Delays: the issue of delay is relevant to the determination of the stay. This both affects third parties and goes to the bona fides of the appellant as to the prosecution of the appeal. Dr Wislang has been responsible for substantial delays in pursuing the appeal. The substantive judgment was delivered on 1 October 2020 and the costs judgment on 2 December 2020. The timing of the filing of Dr Wislang’s appeal and stay application coincides with the steps White Island Tours has taken to enforce the judgment and the bankruptcy proceedings. Dr Wislang has had four months in which to  reach  an  agreement  with  White Island Tours and has failed to properly engage with it despite its invitation.

7      Wislang v Attorney-General & Ors [2020] NZHC 2588 at [117].

8      Wislang v Attorney-General & Ors [2020] NZHC 2588 at [124].

9      Wislang v Attorney-General (Costs) [2020] NZHC 3172 at [46] and [47].

(iii)Dr Wislang says that he has suffered an injury and has been under stress which explains the delay. The delay has been substantial and it appears the injuries alleged were in relation to a fall in mid-March. The appeal against the costs judgment was required to be filed on or before 25 January 2021. In addition, there is no medical evidence in relation to his health difficulties.

(iv)Dr Wislang also says that the application for judicial review is brought in the public interest, meaning he should not be penalised in costs. As I set out in my costs judgment dated 1 December 2020, I could see no genuine public interest in the applications.10 Even if there had been some public interest element the way in which Dr Wislang pursued the applications and the defective pleadings would have substantially diminished any recognition of the public interest in pursuing the claims.

[14]              I also note that the costs awarded against White Island Tours were not indemnity costs. They were based on scale costs with a 50 per cent uplift due to the factors I have referred to earlier.

[15]              In addition, Dr Wislang has produced no evidence as to his financial circumstances therefore I have no grounds upon which to make any assessment of whether or not his appeal will be affected by the failure to grant a stay.

[16]              The appeal will not be rendered nugatory if a stay is not granted on the information before me. It is open to Dr Wislang to pay the costs sought by White Island Tours or make an arrangement with it as to payments in order to avoid the bankruptcy proceedings.

[17]              In summary, I have concerns about the bona fides of Dr Wislang as to prosecution of the appeal. He has already filed and been deemed to abandon a substantive appeal in relation to WorkSafe. The present appeal against costs appears

10     Wislang v Attorney-General (Costs) [2020] NZHC 3172 at [18]–[20].

to have been precipitated by White Island Tours attempting to enforce its costs judgment rather than any other reason.

[18]              The parties, particularly White Island Ltd, have incurred substantial costs in relation to the judicial review proceedings. Dr Wislang abandoned the proceedings against that operator partway through the hearing. The effect on White Island Ltd on granting the stay would be that it would be left without the ability to enforce its costs orders until the application for extension of time and any appeal was heard.

[19]              There is no public interest in the proceedings, and the factors I have considered relevant to the application weigh against the grant of a stay.

[20]Accordingly, the application for stay is dismissed.

Costs

[21]              White Island Tours seeks costs against Dr Wislang on the stay application in the sum of $5,846 as set out at para 32 of the Respondent’s Submissions on Stay Application dated 28 April 2021. Dr Wislang has not had the opportunity of making any submissions in relation to costs on the stay application. Accordingly, Dr Wislang is directed to file any memorandum in relation to the  application  for  costs  by White Island Tours on or before seven days from the date of this judgment. Any reply should be filed within a further three days.

Grice J