Page v Whanganui District Council

[2016] NZHC 654

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-835 [2016] NZHC 654

BETWEEN

ADRIAN NEIL PAGE

Applicant

AND

WHANGANUI DISTRICT COUNCIL Respondent

Hearing:	4 April 2016
Counsel:	A N Page in person P Drake for Respondent
Judgment:	14 April 2016

JUDGMENT OF CLARK J

I direct that the delivery time of this judgment is

4.00pm on 14 April 2015

PAGE v WHANGANUI DISTRICT COUNCIL [2016] NZHC 654 [14 April 2016]

Introduction

[1]      Section 299 of the Resource Management Act 1991 (RMA) provides that a party to a proceeding before the Environment Court under that Act may appeal to the High Court on a question of law any decision, report, or recommendation of the Environment Court.

[2]      The appeal right is confined to a point of law only.   There is no right of appeal on the facts and it is not for the High Court to enter into a re-examination of the merits.1

Background

[3]      Mr Page wishes to appeal a decision of the Environment Court delivered on

1 September 2015 refusing Mr Page’s application to “invalidate” enforcement orders and granting the Whanganui District Council’s application to cancel interim and substantive enforcement orders made in 2009.2

[4]      He applied to file an appeal out of time.  That application was not opposed. On 9 February Thomas J granted leaved and directed Mr Page to file an amended notice of appeal. He did so on 8 March 2016.

[5]      Now the Whanganui District Council submits that the amended notice of appeal does not satisfy s 300 of the RMA because the notice does not specify:

(a)       the error of law raised by the appellant; (b)     the question of law to be resolved; or

(c)       the grounds of appeal with sufficient particularity for the Court and

parties to understand them.

1      Murphy v Takapuna City Council HC Auckland M456/88, 7 August 1989.

2      Page v Wanganui District Council [2015] NZEnvC 153.

[6]      The Council has requested that Mr Page’s appeal be struck out on that basis.

[7]      Thomas J had directed the appellant to file an amended notice of appeal because the appeal needed to be recast to identify a question of law arising from the decision.

[8]      An error of law occurs where the decision-maker appealed from:3

(a)       applied a wrong legal test; or

(b)came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or

(c)       took into account matters which it should not have taken into account;

or

(d)failed to take into account matters which it should have taken into account.

Analysis

[9]      I have carefully read the amended notice of appeal in an attempt to discern any question of law to be resolved on appeal even if inadequately articulated by the appellant.

[10]     The   amended   notice   of   appeal   contains   wide-ranging   criticisms   and allegations  including of  judicial  corruption  and  perverting the course  of justice. Mr Page also claims in his amended notice of appeal that a Court of Appeal decision dismissing his appeal against convictions for offences under the RMA and Crimes Act 1961 is invalid due to the Environment Court and High Court Judges exercising a jurisdiction not available to them.

[11]     Despite the considerable leeway given to Mr Page (including being granted leave to appeal out of time) it is apparent that he seeks to re-engage in the factual matrix going back six years which led to his convictions.  The amended notice of appeal states at paragraph 8:

Mr Page wishes to challenge the original alleged Enforcement Order itself, affidavits of both old and new and request disclosure of documents held by both the Whanganui District Council and the Wellington Environment Court.

[12]     The deficiencies in the amended notice of appeal go beyond being mere irregularities or irregularities capable of cure.  The fundamental defect is the failure of the amended notice of appeal to specify the part of the decision appealed against or, as s 300 of the RMA requires, the question of law to be resolved.

[13]     No doubt the inability to mount a proper challenge to the 1 September 2015 decision  of  the  Environment  Court  is  because  that  is  not  the  decision  within Mr Page’s sights.   Mr Page candidly accepted there was a measure of truth in the observation that at the heart of his challenge is a long line of decisions going back six years and commencing with the making of enforcement orders against Mr Page and others on the application of the Whanganui District Council.

[14]     This Court has an inherent jurisdiction to strike out appeals including from decisions of the Environment Court.   The jurisdiction is to be exercised sparingly and only in exceptional cases such as a plain abuse of process, a moot appeal, or lack of jurisdiction.4

[15]     Mr Page has had an opportunity to amend the notice of appeal to specify a question  of  law.    The  amended  notice  of  appeal  identifies  no  question  of  law. Mr Page continues to challenge a series of decisions issued over many years.  The jurisdiction to entertain the appeal is not even arguable.  I am satisfied that this is one of the exceptional cases where the jurisdiction to strike out should be exercised.

Result

[16]     Accordingly, the appeal is struck out.

Karen Clark J

Solicitors:

Paul Drake, Whanganui, for Respondent