DESMOND WILLIAM COOK v HOUSING NEW ZEALAND CORPORATION [2018] NZSC 42 [8 May 2018]

DESMOND WILLIAM COOK v HOUSING NEW ZEALAND CORPORATION [2018] NZSC 42[8 May 2018]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 27/2018[2018] NZSC 42BETWEEN DESMOND WILLIAM COOKApplicantAND HOUSING NEW ZEALANDCORPORATIONRespondentCourt: Elias CJ, William Young and O'Regan JJCounsel: Applicant in personJudgment: 8 May 2018JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B There is no award of costs.____________________________________________________________________REASONS[1] The applicant commenced a civil proceeding against the respondent in theDistrict Court at Auckland, claiming that the respondent breached its statutory dutiesunder ss 3B and 18 of the Housing Corporation Act 1974 to provide him with "suitablehousing". He also claimed negligence, alleging breach of a duty of care to providehim with "suitable rental accommodation".[2] The respondent applied to strike out the applicant's statement of claim on thegrounds that neither of the causes of action was reasonably tenable and that theproceeding was an abuse of process. The applicant sought to strike out therespondent's pleading and the two applications were heard together. The DistrictCourt Judge found in favour of the respondent, struck out the applicant's statement ofclaim and refused to strike out the respondent's pleading.1[3] The applicant appealed to the High Court. That Court dismissed his appeal,essentially for the same reasons as had been given by the District Court Judge.2 TheHigh Court refused leave for a second appeal to the Court of Appeal.3[4] The applicant applied to the Court of Appeal for special leave to appeal againstthe High Court decision. The Court of Appeal dismissed his application.4 The Courtfound that none of the allegations of error on the part of the High Court Judge wascapable of serious or bona fide argument and no prospect of a miscarriage of justice ifthe decision of the High Court stood intact.5[5] The applicant now applies to this Court for leave to appeal against the decisionof the Court of Appeal. The Registrar declined to accept the application for filing andadvised the applicant that this Court did not have jurisdiction to hear and determine anapplication for leave to appeal against a decision of the Court of Appeal refusingspecial leave to appeal to that Court.6 The applicant requested that this decision bereconsidered and, in light of that request, the Registrar accepted his application forleave for filing and referred it to a panel of Judges for decision.[6] It is clear that the Court does not have jurisdiction to hear and determine theapplication for leave to appeal. The decision of the Court of Appeal was a refusal togive special leave to appeal to that Court and this Court is specifically precluded bystatute from hearing and determining an appeal against a decision of that kind.7[7] We have considered whether the application should be treated as an applicationto bring a leapfrog appeal against the decision of the High Court. Even if we did this,there would be two difficulties in the way of such an application.1 Cook v Housing New Zealand Corporation [2016] NZDC 676 (Judge Hinton).2 Cook v Housing New Zealand Corporation [2017] NZHC 1781 (Downs J).3 Cook v Housing New Zealand Corporation [2017] NZHC 2405 (Downs J).4 Cook v Housing New Zealand Corporation [2018] NZCA 57 (Kós P, Brown and Williams JJ).5 At [12].6 Supreme Court Act 2003, s 7(b); Senior Courts Act 2016, s 68(b).7 See n 6 above.[8] First, the applicant would need to establish that the criteria for leave to appealwere met. This would involve establishing that the appeal involved a matter of generalor public importance or that a substantial miscarriage of justice may have occurred ormay occur unless the appeal is heard.8 In addition he would need to establish thatthere are exceptional circumstances justifying taking a proposed appeal directly fromthe High Court to this Court.9[9] Secondly, this Court has made it clear that it will be rare that a leapfrog appealwould be permitted in circumstances where an appeal from the Court of Appeal to thisCourt is precluded by statute. In Burke v Western Bay of Plenty District Council, theleave panel considering that application for leave said:10 when an appeal from the Court of Appeal to this Court is precluded bys 7(b) [s 68(b)] it cannot be right, save perhaps in very exceptionalcircumstances, to allow that embargo to be circumvented by a direct appealfrom the High Court. While there is no express statutory provision preventingan appeal directly from the High Court to this Court following a refusal ofleave to appeal to the Court of Appeal, the policy behind the embargo in s 7(b)[s 68(b)] suggests that the circumstances in which such a direct appeal couldbe brought would have to be extremely compelling.[10] The applicant's statement of claim in his proceedings against the respondentwere struck out on the basis that his claims were not reasonably arguable and that theyconstituted an abuse of process. The District Court and High Court decisions madeconcurrent findings to that effect. The applicant's attempt to institute a further appealto the Court of Appeal failed in both the High Court and the Court of Appeal, againfor substantially the same reasons. It is clear that his application for leave to appealfails to meet the criteria for leave to appeal to this Court, let alone the elevated criterion("extremely compelling") set out in Burke v Western Bay of Plenty District Council.[11] In these circumstances the application for leave to appeal is dismissed.[12] We make no award of costs.8 Supreme Court Act, s 13(2); Senior Courts Act, s 74(2).9 Supreme Court Act, s 14; Senior Courts Act, s 75.10 Burke v The Western Bay of Plenty District Council [2005] NZSC 46, (2005) 18 PRNZ 560 at [4].