COOK v HOUSING NEW ZEALAND CORPORATION [2018] NZCA 57

COOK v HOUSING NEW ZEALAND LTD [2018] NZCA 57 [27 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA589/2017[2018] NZCA 57BETWEEN DESMOND WILLIAM COOKAppellantAND HOUSING NEW ZEALAND LIMITEDRespondentHearing: 19 March 2018Court: Kós P, Brown and Williams JJCounsel: Applicant in personK R A Muirhead for RespondentJudgment: 27 March 2018 at 11 amJUDGMENT OF THE COURTA The application for special leave to appeal is declined.B The applicant must pay the respondent costs for a standard application on aband A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Cook is a Housing New Zealand Corp (HNZ) tenant. He brought a civilproceeding against HNZ in the District Court at Auckland. He claimed HNZ breachedstatutory duties under ss 3B and 18 of the Housing Corporation Act 1974 to providehim with "suitable housing". He also claimed in negligence, alleging breach of a dutyof care to provide him with "suitable rental accommodation". Mr Cook has significantcoronary health issues. He said HNZ failed him in its statutory and common law dutiesby failing to provide him with housing that was reasonably quiet, safe, free from dampand cold, and suitable for a caregiver to live in (that is, two bedrooms rather than one).Mr Cook sought general damages of $150,000 and exemplary damages of $50,000,plus costs.[2] HNZ applied for the claim to be struck out. It said the claims were untenableand an abuse of process. Judge Hinton granted that application on 17 January 2017.1Mr Cook appealed the strike-out decision. His appeal was dismissed by Downs J on31 July 2017.2[3] The reasoning of Downs J and Judge Hinton did not diverge in any materialsense. In essence it was as follows. The breach of statutory duty claim was untenable.The statutory scheme indicated clearly that Parliament did not intend to confer aprivate civil right of action for alleged breaches of the Housing Corporation Act.Reliance was placed on an analogous English decision in O'Rourke v Camden LondonBorough Council.3 Public law remedies were provided by statute in the HousingRestructuring and Tenancy Matters Act 1992. In addition, both public and privateremedies were available pursuant to the Residential Tenancies Act 1986, via theTenancy Tribunal. These rights Mr Cook had exercised, albeit without success inrespect to the matters that he now seeks relief for. The statutory enactments "coveredthe field" and enabled no further right of action either in breach of statutory duty ornegligence.[4] As to abuse of process, Downs J noted that Mr Cook had exercised his rightsin the Tenancy Tribunal, appealed one of the decisions there from the District Court tothe High Court and unsuccessfully sought leave to appeal to the Court of Appeal.4Subsequent orders were sought in relation to obtaining two-bedroom accommodationbeing sought from the Tenancy Tribunal (which declined jurisdiction) and an appealto the State Housing Appeals Authority (which dismissed that appeal).5 Downs J1 Cook v Housing New Zealand Corp [2016] NZDC 676.2 Cook v Housing New Zealand Corp [2017] NZHC 1781, [2018] NZRMA 39 (High Courtjudgment).3 O'Rourke v Camden London Borough Council [1998] AC 188 (HL).4 High Court judgment, above n 2, at [44] citing Cook v Housing New Zealand Corp [2014] NZCA504.5 See generally High Court judgment, above n 2, at [44].concluded that the proposed claim was an attempt by Mr Cook to "revive and recastthe same complaints beyond the proper statutory avenues".6 It was an abuse ofprocess.[5] At the end of his judgment, Downs J said this:7I acknowledge this result will disappoint Mr Cook, who obviously feelsstrongly about this cause. However, the only issue is whether Mr Cook's claimis capable of being sustained in law. For the reasons expressed in thisjudgment, which largely restate those given by Judge Hinton in the courtbelow, Mr Cook's claim against [HNZ] could not succeed. Consequently, theJudge was correct to strike out the claim.[6] On 3 October 2017 Downs J refused leave to appeal his decision to this Court.8[7] Mr Cook seeks special leave to appeal to this court. As the proceedingpre-dates the coming into force of the Senior Courts Act 2016, it is governed by s 66of the Judicature Act 1908.[8] Leave of this Court is required for a second appeal. Such appeals do not existas a matter of right. The result after one appeal is otherwise presumed final, so thatlitigants can get on with their lives outside the confines of a courtroom.[9] The test for whether leave should be given for a second appeal was set out bythis Court in Waller v Hider:9The appeal must raise some question of law or fact capable of bona fide andserious argument in a case involving some interest, public or private, ofsufficient importance to outweigh the cost and delay of the further appeal.Upon a second appeal this Court is not engaged in the general correction oferror. Its primary function is then to clarify the law and to determine whetherit has been properly construed and applied by the Court below. It is not everyalleged error of law that is of such importance, either generally or to theparties, as to justify further pursuit of litigation which has already been twiceconsidered and ruled upon by a Court.6 At [45].7 At [47] (emphasis in original).8 Cook v Housing New Zealand Corp [2017] NZHC 2405.9 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.[10] Mr Cook appeared on his own behalf. His proposed further appeal groundsreally boil down to four complaints:(a) Downs J failed to take into account particular evidence (and consideredsome evidence said to be of a "hearsay" nature);(b) Downs J erred in reaching conclusions as to whether the abuse ofprocess ground for strike-out was challenged by amicus curiae in theHigh Court;10(c) Downs J failed to deal fairly with the hearing (advancing a number ofprocess complaints); and(d) the Judge was generally wrong to strike out the claim.[11] An applicant for leave to appeal must, first, demonstrate seriously arguableerror by the court below. That is, an error relating to some question of law or factcapable of bona fide and serious argument. Secondly, he or she must demonstrate thatthe interests involved, either public or private, are of sufficient importance to departfrom the general proposition that a judgment pronounced is final after the exercise ofone right of appeal.[12] None of those alleged errors are in our view capable of serious or bona fideargument when the issue is, as here, one of strike-out. The first complaint is of afailure in relation to evidence. But a strike-out application proceeds on thepresumption that the facts pleaded are true. No evidence is heard on the strike-outapplication itself.11 As to the second complaint, whether the amicus who appeared forhim in the District Court (and in the High Court) challenged the HNZ allegation ofabuse of process is beside the point given the Judge's own subsequent analysis,proceeding as if counsel had done so.12 Thirdly, process complaints about the mannerin which the Judge is said to have heard the strike-out application (even if one were10 At [43].11 Mr Cook persisted in attempting to deliver evidence from the bar to us. We treated his attemptsto do so with leniency.12 High Court judgment, above n 2, at [44]–[45].provisionally to assume they were true) do not alter the fundamental reality of thiscase. And that is that the private-law tort claims advanced in the statement of claimwere entirely untenable as a matter of law. We see no error in the Judge's reasons onthat issue, and no prospect of a miscarriage of justice in the decision of the High Courtstanding intact.[13] It follows that the present application must fail, and the application for specialleave will be dismissed accordingly.[14] We endorse the observation of Downs J noted above at [5]. Mr Cook has hadhis day in court. He has had a second day - on appeal. He is not permitted to persistin mounting more and more appeals in the absence of demonstrative legal merit.[15] Any remedies for the situation he finds himself in must lie in attempting topersuade HNZ that his condition requires the care he asserts. And then, and only then,potentially in a public law claim.Result[16] The application for special leave to appeal is declined.[17] The applicant must pay the respondent costs for a standard application on aband A basis and usual disbursements.Solicitors:Meredith Connell, Auckland for Respondents