DOKAD TRUSTEES LIMITED v AUCKLAND COUNCIL [2021] NZHC 2603

DOKAD TRUSTEES LIMITED v AUCKLAND COUNCIL [2021] NZHC 2603 [30 September 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2021-404-866[2021] NZHC 2603IN THE MATTER OFANDThe Judicial Review Procedure Act 2016IN THE MATTER OF The Resource Management Act 1991BETWEEN DOKAD TRUSTEES LIMITEDFirst ApplicantPETER WILLIAM MAWHINNEYSecond ApplicantAND AUCKLAND COUNCILFirst RespondentENVIRONMENT COURTSecond RespondentOn the papersCounsel: Second Applicant in personR J O'Connor for the First RespondentJudgment: 30 September 2021JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 30 September 2021 at 4:00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy Registrar[1] Mr Peter Mawhinney is subject to an order under s 166 of the Senior CourtsAct 2016 (SCA). He is restrained, in any capacity, from commencing any civilproceeding that relates to specified parcels of land in the Waitākere Ranges. That orderwas made on 28 February 2019 and will remain in force until 28 February 2022.1[2] In March 2021, Dokad Trustees Ltd (Dokad) commenced a civil proceedingin the Environment Court applying for enforcement orders against Auckland Council.The 47-page application sought 24 orders. It was signed by Mr Mawhinney for andon behalf of Dokad and supported by an affidavit from Mr Mawhinney. The singleexhibit to Mr Mawhinney's affidavit filled four lever arch folders.[3] Dokad was incorporated on 12 January 2021. It has one director, a Mr AnthonyMawhinney, and one shareholder, a Mr William Mawhinney.[4] Judge Kirkpatrick found Dokad's application related to the land specified inthe s 166 order. He considered it was clear Mr Mawhinney was involved incommencing the application. He concluded Mr Mawhinney was restrained by the s166 order from commencing the application. He directed the Registrar to take nofurther steps in relation to it.[5] Dokad and Mr Mawhinney then filed an application for judicial review in thisCourt. They seek judicial review of Auckland Council's acts and omissions inprocessing various applications and requests, apparently being the applications andrequests that were the subject of Dokad's application for enforcement orders. Theyalso seek judicial review of Judge Kirkpatrick's decision.[6] In the judicial review proceeding Mr Mawhinney has made an interlocutoryapplication under s 169 of the SCA for leave to commence or continue (i) the judicialreview proceeding and (ii) Dokad's application in the Environment Court forenforcement orders. This judgment deals with Mr Mawhinney's application for leave.1 Auckland Council v Mawhinney [2019] NZHC 299, Mawhinney v Auckland Council [2021] NZCA144 at [135], Mawhinney v Auckland Council [2021] NZSC 122.The statutory framework[7] Section 166 of the SCA empowers a Judge of this Court to make an orderrestricting a person from commencing or continuing a civil proceeding. A s 166 ordercan be one of three types: a limited order, an extended order or a general order. Theorder against Mr Mawhinney is an extended order. The effect of an extended order isset out in s 166(4):166 Judge may make order restricting commencement orcontinuation of proceeding(4) An extended order restrains a party from commencing or continuingcivil proceedings on a particular or related matter in a senior court,another court, or a tribunal.[8] The grounds for making a s 166 order are stipulated in s 167. An extendedorder may be made if, in at least two proceedings about any matter in any court ortribunal, the Judge considers that the proceedings are or were totally without merit.Section 167(5) clarifies which proceedings count for this purpose:167 Grounds for making section 166 order(5) The proceedings concerned must be proceedings commenced orcontinued by the party to be restrained, whether against the sameperson or different persons.[9] The SCA contemplates a person subject to a s 166 order may obtain leave tocommence or continue a proceeding otherwise covered by the order. The relevantprovisions provide:168 Terms of section 166 order(1) An order made under section 166 may restrain a party fromcommencing or continuing any proceeding (whether generally oragainst any particular person or persons) of any type specified in theorder without first obtaining the leave of the High Court.169 Procedure and appeals relating to section 166 orders(4) An application for leave to continue or commence a civil proceedingby a party subject to a section 166 order may be made without notice,but the court may direct that the application for leave be served on anyspecified person.(5) An application for leave must be determined on the papers, unless theJudge considers that an oral hearing should be conducted becausethere are exceptional circumstances and it is appropriate to do so inthe interests of justice.(6) The Judge's determination of an application for leave is final.Background[10] Over more than two decades, several proceedings were issued by MrMawhinney (either in his personal capacity or as a trustee), or by entities controlledby him, initially against the Waitakere City Council and subsequently its successorAuckland Council, in relation to the development of land in Anzac Valley Road,Waitākere.[11] In 2017, Auckland Council applied for an extended order under s 166 of theSCA restraining Mr Mawhinney, in his personal capacity and as a trustee of any trust,from commencing any proceedings in relation to that land. The Council originallyproposed that an order restrain Mr Mawhinney and several named companies fromcommencing civil proceedings.2 The Council subsequently did not pursue an orderrestraining the companies. As Hinton J, who delivered judgment on the Council'sapplication, explained:[152] The Council originally proposed that I make an order restraining MrMawhinney and several named companies from commencing civilproceedings. But they subsequently withdrew the application in that formafter Mr Mawhinney objected that this Court could not make an order againstcompanies that were not named as parties to this proceeding, citing s 168 ofthe Act, which in turn would mean that a case would need to be proven againstthem. That appeared to me to be correct.[153] The Council now seeks an order in the following terms:Mr Mawhinney is restricted, in any capacity, including but notlimited to as a trustee of any trust, from commencing orcontinuing any civil proceeding (or matter arising out of acivil proceeding), which relates in any way to the parcels of2 Dokad was not one of the named companies. It was not then incorporated.land contained in the identifiers set out in Schedule A for aperiod of five years.[154] That order may possibly prevent Mr Mawhinney bringingproceedings in the name of corporate entities in any event, but as I understandit, the Council is unconcerned for the moment. It takes the view that in thiscase the combined effect of the bankruptcy and the s 166 order will be enoughto stop Mr Mawhinney bringing or continuing further proceedings in anycapacity. The Council says his being an undischarged bankrupt will preventhim from being a director of a company for some time, or for that matter fromlitigating in person. The Council's particular concern is to stop MrMawhinney from litigating as a trustee, which it says might require the s 166order.[12] A related issue arose in assessing whether Mr Mawhinney had brought at leasttwo proceedings that were totally without merit. As noted, s 167(5) provides that theproceedings that count for this purpose are those "commenced or continued by theparty to be restrained". The issue was whether this included proceedings commenced(i) by Mr Mawhinney in a trustee capacity and (ii) by companies with which MrMawhinney was associated. Hinton J held proceedings commenced by MrMawhinney as trustee could be counted under s 167. She declined to decide whetherproceedings commenced by associated companies could count, explaining:[64] I am uncertain if the same reasoning [that proceedings commenced byMr Mawhinney as trustee can be counted for the purpose of s 167] applies toproceedings brought by incorporated companies associated with andrepresented by Mr Mawhinney. Section 167(5) is in terms: "the proceedingsconcerned must be proceedings commenced or continued by the party to berestrained". Proceedings commenced by a party other than Mr Mawhinneywould appear not to count as a qualifying proceeding under s 167(2), even ifMr Mawhinney represented that party.[67] I would be somewhat sympathetic to an argument that the legislaturedid not intend to preclude a proceeding from qualifying only because thelitigant acted through companies, rather than in a personal capacity, especiallywhere he was effectively the only shareholder and director. A proceeding"commenced" in the name of a company would still in those circumstances bea proceeding commenced by Mr Mawhinney.[68] But, as this may amount to effectively lifting the corporate veil, suchan argument would require thorough submissions, and possibly evidence.Because I have not heard argument on it, I do not take the point further. Iproceed on the basis that proceedings commenced by corporate entities whereMr Mawhinney was not a named party do not qualify as being a "proceeding"under s 167.[13] Even on that basis, Hinton J was satisfied Mr Mawhinney had brought at leasttwo proceedings that were totally without merit and that the circumstances justifiedexercising her overall discretion to make an extended order. She also found thatexceptional circumstances existed to warrant the order being in effect for five years.The order made was in the following terms:3Peter William Mawhinney, in any capacity, including but not limited to as atrustee of any trust, is restrained from commencing or continuing any civilproceeding (or matter arising out of a civil proceeding) that relates in any wayto the parcels of land contained in the identifiers set out in Schedule A to thisjudgment, for a period of five years.[14] Mr Mawhinney appealed. The Court of Appeal varied the order by reducingthe term from five years to three years.4 It otherwise confirmed the terms of the order.In its reasons the Court noted Hinton J had declined to decide whether proceedingscommenced by companies associated with Mr Mawhinney could count under s 167.The Court added:This issue was not addressed on the appeal. Consequently this judgment doesnot engage with the proposition which has found favour in England that aparty who has issued claims or applications refers not only to the named partybut also to someone who is not a named party but is nevertheless the "real"party who has issued a claim or made an application.[15] Mr Mawhinney's application for leave to appeal to the Supreme Court wasdeclined.5[16] For clarity, I note the Court of Appeal's judgment was delivered very shortlyafter Judge Kirkpatrick decided the s 166 order applied to Dokad's application.Procedural matters[17] Mr Mawhinney's application for leave set out the grounds on which he soughtleave. That part of his application, covering about ten pages, was in the nature ofsubmissions. His submissions were comprehensive. Mr Mawhinney addressedwhether the s 166 order restrained Dokad from commencing a proceeding. Hesubmitted it did not.3 Auckland Council v Mawhinney [2019] NZHC 299 at [160].4 Mawhinney v Auckland Council [2021] NZCA 144 at [135].5 Mawhinney v Auckland Council [2021] NZSC 122.[18] Mr Mawhinney noted his application was to be determined on the papersunless, in terms of s 169(5), there were exceptional circumstances and it wasappropriate in the interests of justice to have an oral hearing. He submitted there wereno such exceptional circumstances.[19] Mr Mawhinney's application was made without notice (as is allowed by s169(4)). I directed he serve the application on Auckland Council. If the Councilwished to file submissions, I further directed, its submissions should address whetherthe s 166 order prevented Dokad from commencing this proceeding. I observed thatwas a matter Mr Mawhinney addressed in his application for leave.[20] The Council's submissions did address that matter. The Council also agreedthe application should be determined on the papers.[21] Mr Mawhinney then emailed the Registry, claiming the Council had broughtup new issues, including "a proposal to the effect that [Dokad] is restrained fromcommencing proceedings". Mr Mawhinney said the applicants intended to file andserve reply submissions. He asked whether a formal application for directions wasrequired.[22] The Registry referred Mr Mawhinney's email to me. I prepared a minute. Thissaid that Mr Mawhinney could not reply to any submissions the Council had made tothe effect that Dokad was restrained, since that was not a new issue. Any replysubmissions were not to exceed four pages.[23] Before Mr Mawhinney received that minute (and, therefore, before he receivedthe directions that he contemplated would be made), Mr Mawhinney filed replysubmissions. They ran to 19 pages. That was about double the length of MrMawhinney's principal submissions. They included submissions on whether Dokadwas restrained, as well as submissions on other matters not in reply.[24] After receiving my minute, Mr Mawhinney then filed "further submissions inreply". He said these were to meet "the 4 page criterion". A large part of thesesubmissions was devoted to whether Dokad was restrained.[25] I have decided the application for leave should be determined on the papers.Issues on Mr Mawhinney's application for leave[26] Mr Mawhinney applies for leave to commence two proceedings against theCouncil: the application to the Environment Court for enforcement orders, and thisapplication for judicial review. These two proceedings have the same underlyingsubject-matter. In the Environment Court, Dokad sought enforcement orders inrespect of various applications for resource consent, requests for certificates ofcompliance and objections. In this Court, Dokad and Mr Mawhinney apply for ajudicial review of the Council's acts and omissions in processing those sameapplications, requests and objections. Because of the identity of the underlyingsubject-matter, it is not necessary to distinguish between the two proceedings for thepurpose of Mr Mawhinney's leave application.[27] In the Environment Court, Mr Mawhinney submitted the s 166 order did notcapture the application for enforcement orders because the application did not relateto the land specified in the s 166 order. The Judge rejected that submission. MrMawhinney's submission was based on an analysis of the s 166 order that the Courtof Appeal subsequently rejected (as "an overly technical analysis") when upholdingHinton J's judgment. Mr Mawhinney did not repeat the submission to me. I amsatisfied on the material before me that the two proceedings relate to the land specifiedin the s 166 order.[28] This leaves two issues to determine on the application for leave:(a) Does the s 166 order restrain Dokad from commencing theproceedings?(b) Should I grant leave?Does the s 166 order restrain Dokad from commencing the proceedings?[29] Mr Mawhinney submitted Dokad was a separate legal entity from himself andtherefore not subject to the restraining order. He submitted Hinton J had determinedthat a registered company such as Dokad was not subject to the s 166 order,notwithstanding any connection he may have with the company. He said thatdetermination was not altered by the Court of Appeal's judgment.[30] I do not accept that Hinton J made such a determination. Hinton J expresslyleft the point open. She said that the order she made "may possibly prevent MrMawhinney bringing proceedings in the name of corporate entities in any event".6 TheCourt of Appeal did not comment on that. The Court merely said they were notengaging with the related question of whether earlier proceedings by companiesassociated with Mr Mawhinney could count for the purposes of s 167.7[31] I accept, of course, that Dokad is a separate legal entity from Mr Mawhinney.But I find that Dokad is, in the circumstances of this case, nonetheless restrained bythe s 166 order from commencing the proceedings. This is because a s 166 orderprevents the restrained party from commencing any proceeding in which he or shecontrols the proceeding, and I am satisfied Mr Mawhinney controls the subjectproceedings. I now expand on these two points.A s 166 order prevents the restrained party from commencing any proceeding in whichhe or she controls the proceeding[32] An order under s 166 restrains "a party from commencing" civil proceedings.Similarly, s 167(5) provides the earlier proceedings that can be counted in determiningwhether an order should be made must be ones "commenced by the party to berestrained".[33] Implicit in Mr Mawhinney's submission is the proposition that, in terms of ss166 and 167(5), a party "commences" civil proceedings only where that party is thenamed party to those proceedings. I regard that as an unduly narrow interpretation ofthe provisions.6 Auckland Council v Mawhinney [2019] NZHC 299 at [154]. And, as noted earlier, Hinton J leftopen whether earlier proceedings brought by companies associated with Mr Mawhinney countedfor the purposes of s 167: at [64]-[68].7 Mawhinney v Auckland Council [2021] NZCA 144 at [74].[34] The meaning of the provisions must be ascertained from their text in light oftheir purpose.8 As to the text, the words "a party commencing civil proceedings"are open to two interpretations. A narrow interpretation, favoured by Mr Mawhinney,focuses on the identity of the named plaintiff or applicant to the proceeding. On thatinterpretation, the words mean a party commencing civil proceedings in his or her ownname. A broader interpretation would also consider the identity of the person incontrol of the proceeding. On that interpretation, the words include a partycommencing civil proceedings in the name of another person where the party controlsthe proceeding.[35] As to purpose, the SCA does not state a particular purpose for these provisions.However, that purpose is evident from the provisions themselves and from theirhistory. In its issue paper for the review of the Judicature Act 1908 (which led to theSCA), the Law Commission explained the background to what would become ss 166-169 of the SCA:9Access to the courts is an integral element of the rule of law, and a fundamentalright in a democracy. However, sometimes people use the courts in ways thatstrain the resources of the justice system and place undue pressure on otherparties, court staff and judicial officers. Some people repeatedly bring civilproceedings, often involving the same subject matter, against others, despitethe courts finding that their claims are without merit. Others respond to adecision that goes against them by bringing still more proceedings, drawingin an ever-widening circle of defendants.There are mechanisms operating in the courts system that have the effect ofdiscouraging people from taking proceedings to court unless they have agenuine cause of action, but these are not always enough. Further, while theHigh Court has inherent jurisdiction to restrain a plaintiff from makingapplications within an existing proceeding (on the basis that they arevexatious), without the leave of the Court, it does not have the power underits inherent jurisdiction to prevent a person from commencing proceedingsthat appear to be vexatious. Nor does it have inherent jurisdiction to preventa plaintiff from instituting future actions without leave.Accordingly, New Zealand has, since 1965, had statutory measures in place tohelp the courts deal with litigants who persistently bring vexatious civilproceedings against others.8 Interpretation Act 1999, s 5.9 Law Commission Review of the Judicature Act 1908: towards a consolidated Courts Act (NZLCIP29, 2012) at 173. References omitted.[36] The purpose of the SCA provisions, then, is to place a reasonable limit on aperson's access to the courts, that limit reflecting concerns some people use the courtsin ways that strain judicial resources and place undue pressure on other parties. Thispurpose favours an interpretation of the provisions that includes consideration of theidentity of the person controlling the proceeding in question. By contrast, MrMawhinney's narrow interpretation would undermine this purpose. A person subjectto a s 166 order could circumvent the order merely by finding another person tocommence a proceeding or interposing a company for this purpose.10[37] For those reasons, I interpret the provisions as capturing not only a partycommencing a proceeding in his or her own name, but also a party commencing aproceeding in the name of another person where the party controls the proceeding.[38] This interpretation is consistent with the view the English courts have taken ofequivalent provisions, on which the SCA provisions are modelled, in that jurisdiction.Practice Direction 3C, authorised by r 3.11 of the Civil Procedure Rules 1998 (UK),provides that civil restraint orders (CROs) can be made where "a party" has "issued"claims or "made" applications. In CFC 26 Ltd v Brown Shipley & Co Ltd, anindividual against whom an extended civil restraint order (ECRO) was sought hadmade some claims and applications in his own name and others through associatedcompanies he controlled.11 An issue for the Court was whether a CRO could be basedwholly or in part on claims or applications made in the name of someone other thanthe subject of the CRO.12[39] Newey J framed that issue in the following terms:13Suppose, say, that an individual has issued one totally without meritapplication himself and that a second such application has been issued by hisspouse or by a company of which he is a director and shareholder or by a trustin which he has an interest. When, if ever, would there be power to make alimited CRO under paragraph 2.1 of Practice Direction 3C? To what extent(if any), too, can claims or applications issued in the names of third partiesfound an ECRO?10 Likewise, a person could evade the controls of s 166 by using a succession of different ciphers tocommence a series of proceedings.11 CFC 26 Ltd v Brown Shipley & Co Ltd [2017] EWHC 1594 (Ch) [2017] 1 WLR 4589 at [3].12 At [8].13 At [14].[40] He accepted a narrow construction of the Practice Direction was available:14The "party" who has "issued" a claim would normally be taken to be thenamed claimant, and the "party" who has "made" an application wouldordinarily be understood to be the person identified as the relevant claimantor defendant. On that basis, the practice direction would not apply unless theperson against whom a CRO was sought had made the relevant number ofclaims or applications in his own name. By the same token, a CRO could not,presumably, debar the person against whom it had been made from causing anindividual or entity associated with him from making a claim or application.[41] The Judge acknowledged this approach would be consistent with thelongstanding "fundamental feature of English commercial law" that companies havea distinct legal personality.15[42] On the other hand, the Judge said, the ability of the courts to make CROs couldbe seriously undermined by a narrow construction focusing exclusively on namedparties in proceedings. The Judge then noted there were circumstances in which thecourts view someone who is not the named party as the "real" party to litigation,referring to the principle that costs could be awarded against a non-party where thatperson "not merely funds the proceedings but substantially also controls or at any rateis to benefit from them".16[43] The Judge concluded that a more expansive meaning of "party" was necessarywhich extended beyond the named person in a proceeding to include the "real" partypursuing the proceeding. He added:17Likewise, if a claim or application is issued in the name of someone who isnot subject to a CRO, but the "real" claimant or applicant has had such anorder made against him, the CRO will, as it seems to me, bite on the claim orapplication.[44] Newey J's reasoning was affirmed by the English Court of Appeal in Sartipy vTigris Industries Inc.18 Males LJ, writing the leading judgment of the Court, said itwas unnecessary for the purposes of the appeal to explore the limits of the "real party"14 At [15].15 At [16].16 At [19], citing Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, [2005] 1NZLR 145 at [25].17 At [20].18 Sartipy v Tigris Industries Inc [2019] EWCA Civ 225, [2019] 1 WLR 5892 at [32].concept, "but it must extend to a person who is controlling the conduct of theproceedings and who has a significant interest in their outcome".19 The SupremeCourt refused permission to appeal.20[45] The interpretation I favour is also supported by Siemer v District Court, NorthShore.21 Jane Siemer, who was subject to a s 166 order, applied for leave to commencea proceeding in her own name. Her husband, Vincent Siemer, was subject to a similarorder. Downs J decided against granting leave, as he considered "it all but certain MrSiemer is behind this".22 Because Mrs Siemer was seeking leave to commence aproceeding in her own name, the Judge was not confronted with the interpretativepoint that has arisen on this application. But his Honour concluded with this point:"[v]exatious litigants may not litigate by proxy".[46] Finally, I observe my interpretation does not involve resort to the metaphoricalwonder of "lifting the corporate veil". All that is involved is a process of statutoryinterpretation. This interpretation applies whether the named party (controlled by therestrained party) is a natural person or a company. Sartipy is illustrative: for someproceedings Mrs Sartipy was the named party but her son was regarded as the "realparty".Mr Mawhinney controls the proceedings[47] I am satisfied Mr Mawhinney controls both the subject proceedings.[48] In the Environment Court, Mr Mawhinney signed the application forenforcement orders "for and on behalf of" Dokad. The application gave his emailaddress as the electronic address for service for Dokad. Mr Mawhinney swore anaffidavit in support of the application for enforcement orders. Mr Mawhinney hassought leave (from this Court) to represent Dokad at the Environment Court.19 Sartipy v Tigris Industries Inc [2019] EWCA Civ 225, [2019] 1 WLR 5892 at [32].20 Sartipy v Tigris Industries Inc [2020] 1 WLR 2354 (SC).21 Siemer v District Court, North Shore [2019] NZHC 346.22 Siemer v District Court, North Shore [2019] NZHC 346 at [14].[49] In this Court, Mr Mawhinney swore the affidavit in support of the applicationfor judicial review. The application for judicial review states that Dokad has the samepostal address as Mr Mawhinney. Mr Mawhinney has communicated with theRegistry on behalf of both Dokad and himself. The subject-matter of the judicialreview is the same as that of the enforcement orders.[50] In his submissions Mr Mawhinney said he is not a shareholder or director ofDokad and is not a beneficiary of the trust of which Dokad is apparently a trustee.Even if that is so, it is not inconsistent with control of the proceedings.Conclusion[51] Because Mr Mawhinney controls both the subject proceedings, he requiresleave to commence them. It follows that Dokad cannot commence either proceedingwithout Mr Mawhinney first obtaining leave.Should leave be granted?[52] I turn then to the question of whether leave should be granted.The test for leave[53] Mr Mawhinney submitted the test for leave is whether the proposed proceedingis "totally without merit". He drew this test by inference from the test in s 167 formaking a restraining order. He said the purpose of a leave application was todetermine whether the proposed proceeding is totally without merit.[54] On behalf of the Council, Mr O'Connor submitted Mr Mawhinney hadconflated the grounds for making an order under s 166 with a decision on leave. Hesaid s 169 does not have any express leave criteria and it was not sufficient for theapplicant merely to show the proceeding was not totally without merit.[55] I accept Mr O'Connor's submission. Section 169 of the SCA does not stipulateany criteria for granting leave to commence a proposed proceeding. There is a broaddiscretion. A relevant consideration will be the apparent merit of the proposedproceeding. But that is not the sole consideration. The manner in which theproceeding is likely to be conducted will be relevant.23 Also relevant may be anyconnection between the proposed proceeding and the earlier proceedings that led tothe s 166 order. There may be other relevant considerations. Section 169 is notprescriptive.[56] Mr Mawhinney's submission places an unwarranted gloss on the leavediscretion in s 169. If Parliament had intended leave to be granted whenever aproposed proceeding was not totally without merit, they could easily have said so: the"totally without merit" test was already employed in s 167. Instead Parliamentstipulated no criteria.[57] A contrast can be drawn with the predecessor provision, s 88B of the JudicatureAct 1908. Under s 88B(2), leave could not be granted unless the Court was satisfied"the proceeding is not an abuse of the process of the Court and that there is prima facieground for the proceeding". Even if those thresholds were crossed, the Court had adiscretion whether to grant leave. It is inconceivable that Parliament, having enacteds 169 on a broader basis than the former s 88B, could have intended that the Court'sdiscretion was more limited under s 169 than under s 88B (which is the effect of MrMawhinney's submission).[58] I add two further points. The courts described the leave discretion in s 88B(2)as "a jurisdiction to be exercised very carefully" because it had already beenestablished that the litigant had "habitually and persistently without any reasonableground instigated vexatious proceedings".24 In my view this applies equally to theleave discretion in s 169. The discretion to grant leave remains one to be exercisedwith restraint given the existence of the 166 order establishes the applicant has already,repeatedly, engaged in litigation that was totally without merit and has conducted thelitigation in a way justifying a restraining order.[59] The other point is that the burden is on the applicant to persuade the Court thatleave should be granted.23 This is relevant to the discretion whether to make a s 166 order (Auckland Council v Mawhinney[2019] NZHC 299 at [115]) and so must equally be relevant to the leave discretion.24 Re Collier [2008] 2 NZLR 505 (HC) at [9], quoting Davies LJ in Becker v Teale [1971] 1 WLR1475 (CA) at 1476.Leave should not be granted[60] Mr Mawhinney has not satisfied me that leave should be granted, for thefollowing reasons.[61] First, the proposed proceedings appear to have little if any merit. They relateto applications, requests and objections made in respect of the same subdivisionproposal for the Waitākere land that has repeatedly been before the Environment Courtand this Court. Mr Mawhinney and his interests have always been unsuccessful.Indeed, Mr Mawhinney acknowledged in his submissions that prior to the s 166 orderthere were appeals to the High Court (against various declarations by the EnvironmentCourt) and applications for judicial review "in respect of many of the issues in thesubject application for enforcement orders, and the subsequent application for judicialreview". I accept Mr O'Connor's submission that Mr Mawhinney and his interestsare seeking to relitigate their earlier objections in circumstances where theEnvironment Court has upheld the Council's decisions.[62] Secondly, the proposed proceedings have a close relation to the earlierproceedings on which the s 166 order is based. Even if some of the applications,requests and objections were made after that order (and, therefore, had not previouslybeen determined by a Court), those applications, requests and objections are in respectof the same underlying subdivision proposal and are merely variations on applications,requests and objections that have previously been before the Council.[63] Thirdly, it is likely Mr Mawhinney will conduct the proposed proceedings in amanner that places an undue burden on both the Council and the Courts. That isevident from the vast affidavit he placed before the Environment Court. It is evidentfrom his filing reply submissions before obtaining any direction to do so from thisCourt. It is evident from those reply submissions managing to be almost twice thelength of his principal submissions and straying well beyond a reply.Result[64] Dokad cannot commence either proceeding without Mr Mawhinney firstobtaining leave to commence the proceedings under s 169. Leave under s 159 isrefused.[65] The Council is entitled to costs on the application from Mr Mawhinney andfrom Dokad. If costs cannot be agreed memoranda are to be filed and served asfollows:(a) The Council is to file and serve a memorandum, not exceeding twopages, by 15 October 2021.(b) Mr Mawhinney and Dokad are to file and serve a memorandum, notexceeding two pages, by 22 October 2021.______________________Campbell J