Lau v Auckland Council

[2019] NZCA 15

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA29/2018
 [2019] NZCA 15

BETWEEN	EE KUOH (AUGUSTINE) LAU Applicant
AND	AUCKLAND COUNCIL Respondent

Court:	French and Gilbert JJ
Counsel:	Applicant in person A J Ewing for Respondent
Judgment: (On the papers)	21 February 2019 at 11 am

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

1. The applicant, Mr Lau, was charged with 35 offences under the Resource Management Act 1991 and the Building Act 2004 arising out of unlawful development of seven properties in Auckland. Mr Lau’s company faced a further 12 charges. The charges alleged non-compliant earthworks, building works and use and non-compliance with abatement notices, notices to fix, insanitary building notices, dangerous building notices and enforcement orders made by the Environment Court.

2. Mr Lau elected trial by jury and applied pre-trial for severance of each of the 47 charges.  He proposed that there should be a discrete week-long trial for each of the charges.  Judge O’Driscoll declined to sever the charges in a judgment delivered on 22 December 2017.[1] 

   [1]Auckland Council v Lau [2017] NZDC 26282.

3. On 19 January 2018, Mr Lau applied for leave to appeal against Judge O’Driscoll’s decision.  However, Mr Lau has done nothing further to advance his application.

4. On 1 February 2018, Brown J directed that the application for leave to appeal should be dealt with by the Court separately from the proposed appeal and on the papers. 

5. Mr Lau subsequently accepted a sentence indication and pleaded guilty to those charges that were not withdrawn.  He was convicted and sentenced to a term of imprisonment. 

6. The proposed appeal is now moot but Mr Lau has failed to return a notice of abandonment. 

7. In a minute dated 29 November 2018, Gilbert J made the following directions to bring the matter to a conclusion:

   (a)Mr Lau is to notify the Registrar in writing within 10 working days of the date of this minute if he wishes to proceed with his application for leave to appeal against the pretrial decision.  If no such notice is given, the application for leave to appeal will be dismissed.

   (b)In the event Mr Lau gives such notice that he does wish to proceed with his application, he is to file and serve any submissions in support of his application no later than 20 December 2018.

   (c)If the respondent wishes to file any submissions in response beyond those contained in its memorandum dated 23 January 2018, it is to file and serve these within 10 working days of receipt of Mr Lau’s submissions.

8. Mr Lau did not comply with these directions.  On 5 December 2018, Mr Lau wrote to the Registrar saying that he was unable to make any decision about his application and indicated that he may wish to take legal advice.  In a minute dated 17 December 2018, Gilbert J directed Mr Lau to seek legal advice without delay if he wished to do so and advised that if no submissions were filed in support of his application for leave to appeal by 20 December 2018, it would be dismissed.  No such submissions have been filed. 

9. Section 338 of the Criminal Procedure Act 2011 empowers the Court to dismiss an application for leave to appeal if the applicant fails to comply with a timetable or other procedural orders fixed for the application.  Before dismissing an application for leave to appeal in reliance on this section, the Court must give the applicant 10 working days’ notice of its intention to dismiss the application.  The application may not be dismissed if the non-compliance has been rectified within the notice period.  These criteria are met in the circumstances we have outlined. 

10. The application for leave to appeal is entirely without merit and is moot.  In view of Mr Lau’s failure to comply with the procedural orders, it is appropriate that the application for leave to appeal be dismissed.    

11. The application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent