Wislang v Attorney-General
[2020] NZHC 2181
•26 August 2020
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 or within any further time that the High Court may allow.
[7] Section 56(4) refers to an order to strike out a proceeding or grant summary judgment, and is not relevant to this proceeding.
[8] I note that Dr Wislang has brought his application for leave to appeal within the required time period.
[9] Numerous cases have noted that s 56(3) itself does not set out the requirements for when the High Court should grant an appeal of an interlocutory decision, but the following approach is now considered settled. The elements engaged by this appeal are:
(a)The requirement for leave to appeal should serve as a “filtering mechanism” to ensure that unmeritorious appeals, or appeals of no great significance to either party, do not unnecessarily delay the proceedings in which the orders were made.1 The argument on appeal should be capable of bona fide and serious argument.2
1 Finewood Upholstery Limited v Vaughan [2017] NZHC 1679 at [13].
2 Li v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134 at [21].
(b)The Court will consider if the interests of justice are served by granting the appeal;3
(c)Leave is more likely to be granted where the appeal may be dispositive of the case in law or as a practical matter;4
(d)Leave is more likely to be granted where the issue on appeal concerns a decision of sufficient significance to the parties or a question of law or general principle of sufficient importance as to outweigh cost and delay.5
[10] Palmer J summarised his approach to s 56(3) in Li v Chief Executive of the Ministry of Business, Innovation and Employment:6
[22] More pithily, perhaps, an application to appeal an interlocutory decision under s 56(3) is likely to be granted where: (a) there is good reason to consider it before, or separately to, the substantive appeal; and (b) it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal.
[11] The courts have also noted the purpose of s 56(3) and the requirement to seek leave to appeal is to “lessen tactical delays and enhance the efficiency of the administration of justice”.7 The Supreme Court has noted that the Court of Appeal is a busy Court and wishes to “avoid being burdened with multiple and unnecessary appeals arising from one piece of litigation”.8
Submissions
[12] In relation to the application for non-party discovery against GNS, Dr Wislang submits I failed to recognise that GNS did not file a notice of opposition to that application, predetermined the availability of the injunction that he seeks and failed to
3 Finewood Upholstery Limited v Vaughan, above n 1, at [14].
4 Li v Chief Executive of the Ministry of Business, Innovation and Employment, above n 2, at [21].
5 Li v Chief Executive of the Ministry of Business, Innovation and Employment, above n 2, at [21]. See also A v Minister of Internal Affairs [2017] NZHC 887 at [12], suggesting that a lack of general or precedential importance in an appellant proceeding would point away from granting leave to appeal.
6 Li v Chief Executive of the Ministry of Business, Innovation and Employment, above n 2, at [22].
7 Li v Chief Executive of the Ministry of Business, Innovation and Employment, above n 2, at [20].
8 Seimer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [30].
consider the importance of the information that he sought. Ultimately, he submits I was incorrect to decline the application.
[13] In relation to further discovery from the third respondent and his fourth supplementary affidavit, Dr Wislang submits that I did not give proper weight to the importance of the evidence that he sought to add to his case and to the interests of justice, and incorrectly considered that the delay and prejudice that the respondents would incur was decisive.
[14] In declining to allow the interrogatories, he submits I failed to consider that the third respondent may have placed conditions addressing safety concerns on the second respondent’s operations.
[15] Dr Wislang highlights the general and public importance of his proposed appeal and says it is therefore in the interests of justice to grant leave.
[16] The three respondents have filed joint submissions opposing leave to appeal and the granting of a stay, which canvas the extensive interlocutory history of the proceeding. The respondents say the application does not raise or identify any arguable error of law or fact. In their view, the applicant has still not provided any explanation for the delay in filing the original applications and has not explained the relevance of the further evidence he wished to adduce. They further submit that granting leave would incur further delay to the proceedings and they will face costs associated with that delay. A one-day hearing is set down for 31 August 2020. That date was allocated on 17 July 2020, which was therefore the close of pleadings date. Finally, the respondents say the appeal does not raise any issue of general or public importance.
Analysis
[17] I assess the relevant factors above in turn but, before doing so, I note the overarching difficulty that Dr Wislang faces is one of his own making. As Cooke J said in his Minute of 19 June 2020, the claim as filed “does not identify a coherent claim for judicial review, although some parts of it might be argued to do so.”. The second amended statement of claim which Dr Wislang filed on 12 June 2020 is a
narrative rendition of his case. It is a mixture of assertion, opinion, evidence and submission. It is not a statement of claim in any technical sense of that term. That creates difficulties not only for the respondents, in terms of answering the claim, but also for Dr Wislang himself, in being able to show any proper connection between the statement of claim and the necessity for the applications which he now presses.
[18] As to the specific factors, first, I agree with the respondents that this appeal is not capable of serious argument. Dr Wislang sought to file his additional affidavits and additional applications at a very late stage in the proceedings with no satisfactory explanation for the delay. In terms of the merits of the applications, I am satisfied for the reasons I set out in my Minute that the applications have minimal merit. Dr Wislang has not provided clear submissions on the merits in his leave application. Some of his arguments relate to the importance of the information and delay, which I discuss below. Where Dr Wislang makes submissions on the merits, he simply asserts I was incorrect, or makes brief, confused arguments. There is nothing in Dr Wislang’s submissions to convince me that there is an arguable error in the original decision. I consider each of the applications in turn:
(a)The application seeking leave to obtain non-party discovery from GNS had already been considered by Thomas J and Doogue J before it came before me. There is therefore no outstanding requirement for GNS to file a notice of opposition as Dr Wislang asserts. Further, the fundamental difficulty still remains that Dr Wislang’s second amended statement of claim does not assert a cause of action against the second respondent (WITL) to which the discovery sought might be relevant.
(b)In relation to the application seeking further discovery from Worksafe, Dr Wislang has not advanced any further submission to persuade the Court that the discovery sought is relevant to the claim as pleaded9 and/or has not already been provided by Worksafe on 24 March 2020.
(c)Dr Wislang’s third application relates to a notice to answer interrogatories, dated 10 August 2020, and served on the
9 See New Zealand Steel Ltd v Minister of Commerce and Consumer Affairs [2017] NZHC 3232 a[29].
Chief Executive of Worksafe. As I noted in my 14 August 2020 Minute, interrogatories in a judicial review proceeding are unusual and extremely rare.10 The onus is on the applicant to satisfy the Court that the information sought is relevant to an issue in the proceedings, an order is necessary at the time it is sought and the order will not undermine the purpose of judicial review and the speedy and untechnical resolution of the proceeding.11 Dr Wislang says that my ruling on this point “failed to address the possibility that the third respondent did in the periods between it’s (sic) registering the second respondent as an adventure tourism operator in 2014 and 2017 and up to the present, place conditions addressing safety issues on the second respondent’s operations.” However, as Worksafe has said in its memorandum of 13 August 2020 and recorded in my earlier Minute, it has already provided Dr Wislang with all relevant documents recording the relevant conditions set by the safety auditors in issuing their safety audit certificates. As Worksafe noted, it does not itself set conditions.
(d)Finally, Dr Wislang seeks to appeal my decision not to allow him to file two further affidavits. The first12 supports his application for further discovery against Worksafe and stands or falls with that application. The second13 appends various news articles, all but two of which were available before 3 July 2020, the date set by Cooke J for Dr Wislang to file any further evidence. Dr Wislang’s submissions in support of this leave application do not in substance advance the matter any further. He does not proffer any further explanation for the delay, nor provide any further clarification of the relevance of the proposed evidence, which might offset the delay and consequent prejudice to the respondents.
10 See Deilu v New Zealand Law Society [2013] NZHC 1584 at [46].
11 K v Government Inquiry into Operation Burnham [2019] NZHC 854 at [27]–[28].
12 Affidavit of Miles Wislang in Support of an Interlocutory Application for Discovery in Respect of the Second Respondent, dated 3rd August 2020.
13 Fourth Supplementary Affidavit of Miles Wislang, dated 10 August 2020.
[19] Second, for the reasons set out above, the issues raised on appeal do not concern a decision “of sufficient significance” to the parties. The issues raised on appeal are unlikely to be of significance in the substantive proceeding. Although Dr Wislang asserts that the new evidence, discovery and interrogatories he has sought are important to his case, it is entirely unclear how that could be so.
[20] Nor do the issues raised on appeal raise a question of law or general principle of sufficient importance. It therefore has no general or precedential value. Dr Wislang says any lack of precedential value is outweighed by the general importance of the appeal. For the reasons given above, I disagree with that assessment.
[21] I therefore do not consider that the merits or importance of the issues raised by Dr Wislang on appeal are capable of outweighing the cost and delay caused by such an appeal. That delay and prejudice impacts on all respondents but is of particular significance for the second respondent, as I noted in my earlier Minute. Section 56(3) seeks to ensure unmeritorious appeals do not delay proceedings. This appeal would cause further delay and expense to all parties which is not warranted given its lack of merit.
[22] Stepping back and assessing in a “pragmatic and realistic way, whether the interests of justice are served by granting leave”,14I do not consider that the applicant has been able to show that the proposed appeal is sufficiently meritorious in substance, or relates to an issue of sufficient importance to the proceedings, to outweigh the costs and delay of the appeal.
Application for stay of proceedings
[23] The applicant has also applied for a stay of the substantive proceedings. Pursuant to r 20.10 of the High Court Rules 2016, pending the determination of an appeal, the Court may order a stay of proceedings in relation to the judgment appealed against.
14 Firewood Upholstery Ltd v Vaughan, above n 1, at [14].
[24] In light of my conclusion that this it is not appropriate to grant leave to appeal, there is no need for a stay to be granted. There is no pending appeal because leave has not been granted.
Result
[25]Leave to appeal is declined, as is the application for a stay of proceedings.
Costs
[26]Costs are reserved.
Gwyn J
Solicitors:
Crown Law, Wellington for first respondent Anthony Harper, Auckland for second respondent Simpson Grierson, Wellington for third respondent Copy to: The applicant
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