Wislang v Attorney-General - [2020] NZHC 2181

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-6

[2020] NZHC 2181

UNDER The Judicial Review Procedure Act 2016; and the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977; and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012

IN THE MATTER OF

An application for judicial review and interim orders

BETWEEN

MILES ROGER WISLANG

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

AND

WHITE ISLAND TOURS LTD

Second Respondent

AND

WORKSAFE NEW ZEALAND

Third Respondent

Teleconference: 21 August 2020

Appearances:

M Wislang, in Person

K Stephen and A Piaggi for the First Respondent G R Nicholson for the Second Respondent

S V McKechnie and T Bremner for the Third Respondent

Judgment:

26 August 2020

JUDGMENT OF GWYN J

[Declining leave to appeal interlocutory orders]

WISLANG v THE ATTORNEY-GENERAL [2020] NZHC 2181 [26 August 2020]

[1] Dr Wislang wishes to appeal the decisions contained in my Minute issued on 14 August 2020. Dr Wislang has brought an application for a judicial review under the Judicial Review Procedure Act 2016 (the Act) against the Attorney-General, White Island Tours Ltd and Worksafe New Zealand in relation to an alleged failure by the Crown to prevent tour operators and members of the public from accessing Whakaari / White Island.

[2] Dr Wislang has also applied for a stay of proceedings pending the determination of the appeal.

Background

[3] The Minute of 14 August 2020 dealt with a variety of interlocutory applications made by Dr Wislang. The applications were:

(a)an application for a reconsideration of an application for non-party discovery against GNS Science (GNS), made in the applicant’s Memorandum of 13 August 2020; and

(b)an application for leave to file:

(i)an interlocutory application for further discovery from the third respondent (Worksafe), dated 3 August 2020;

(ii)a notice to the third respondent to answer interrogatories, dated 10 August 2020;

(iii)an affidavit of Dr Wislang, dated 3 August 2020 in support of his application for further discovery against Worksafe; and

(iv)a fourth supplementary affidavit of Dr Wislang in support of application for judicial review, dated 10 August 2020.

[4] I declined to grant leave in relation to any of those applications and the applicant now seeks leave to appeal my decisions.

Appeal of interlocutory decisions

[5]Section 20 of the Judicial Review Procedure Act states:

20 Appeals
Any party who is dissatisfied with any interlocutory or final order made in respect of an application may appeal to the Court of Appeal in accordance with section 56 of the Senior Courts Act 2016.

[6]Section 56(3) of the Senior Courts Act is relevant to this appeal. It says:

(1)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…

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: [2020] NZHC 2181
Decision Date: 26 August 2020

CaseChat Overview and Summary

Dr. Miles Roger Wislang sought to appeal the interlocutory decisions made by Gwyn J in relation to his application for judicial review against the Attorney-General, White Island Tours Ltd, and Worksafe New Zealand. Dr. Wislang's application sought to prevent tour operators and the public from accessing Whakaari / White Island. The interlocutory applications declined by Gwyn J included an application for non-party discovery against GNS Science, an application for leave to file further discovery from Worksafe, a notice to Worksafe to answer interrogatories, and an affidavit of Dr. Wislang in support of his application for further discovery against Worksafe and a fourth supplementary affidavit. Dr. Wislang also sought a stay of proceedings pending the determination of the appeal.
The legal issues the court had to decide were whether Dr. Wislang's appeal of the interlocutory decisions met the criteria for leave to appeal under s 56(3) of the Senior Courts Act 2016, and whether the court should grant a stay of proceedings pending the determination of the appeal. The court assessed the relevant factors and concluded that Dr. Wislang's appeal was not capable of serious argument, the issues raised on appeal were not of sufficient significance to the parties, and the merits or importance of the issues raised by Dr. Wislang on appeal were not capable of outweighing the cost and delay caused by such an appeal. The court also concluded that there was no need for a stay to be granted because leave to appeal had not been granted.
The court declined leave to appeal and the application for a stay of proceedings. Costs were reserved.

Orders