DOKAD TRUSTEES LTD v AUCKLAND COUNCIL [2022] NZCA 177

DOKAD TRUSTEES LTD v AUCKLAND COUNCIL [2022] NZCA 177 [11 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA708/2021[2022] NZCA 177BETWEEN DOKAD TRUSTEES LIMITEDAppellantAND AUCKLAND COUNCILFirst RespondentENVIRONMENT COURTSecond RespondentCounsel: No appearance for AppellantR J O'Connor for First RespondentA M Powell and CPC Wrightson for Second RespondentJudgment:(On the papers)11 May 2022 at 11.00 amJUDGMENT OF GODDARD JA This Court has jurisdiction to hear the appeal by Dokad Trustees Ltd.B Leave is granted under r 6(1) of the Court of Appeal (Civil) Rules 2005 forthe notice of appeal and other documents filed on behalf of Dokad TrusteesLtd to date to be filed notwithstanding any failure to comply with r 30 ofthe Rules, or any other requirement for documents to be signed by alawyer.C Leave is declined for Mr Mawhinney to represent Dokad Trustees Ltd.Any documents filed on behalf of the appellant from this date onwardsmust clearly identify by whom they are signed, and by whom they are filed.Documents that are not filed by a lawyer acting for Dokad Trustees Ltdshould not be accepted for filing by the Registrar.D The second respondent is excused from further attendance in this appeal.E An extension of time is granted for filing the case on appeal, and forapplying for a hearing date, until Thursday, 30 June 2022.____________________________________________________________________REASONS OF THE COURTBackground[1] In a judgment delivered on 7 December 2021 I set aside decisions of theDeputy Registrar to decline to accept for filing a notice of appeal and an amendednotice of appeal that Dokad Trustees Ltd (Dokad) had sought to file in this Court.1The appeal was retrospectively accepted for filing on 27 October 2021, and theRegistrar set security for costs for the appeal at $7,060. Security for costs was requiredto be paid by 24 November 2021 being 20 working days after the original notice ofappeal was filed.2[2] The amended notice of appeal relates to two High Court judgments. In the firstjudgment (the leave judgment),3 the High Court held that Dokad could not bringcertain civil proceedings in the Environment Court or related judicial reviewproceedings in the High Court, because:(a) Dokad is an entity controlled by Mr Peter Mawhinney, who is subjectto an order under s 166 of the Senior Courts Act 2016 that restrains him,in any capacity, from commencing or continuing any civil proceedingrelating to specified parcels of land in the Waitākere Ranges;(b) Mr Mawhinney had been declined leave to bring the relevantproceedings in the Environment Court and in the High Court; and1 Dokad Trustees Ltd v Auckland Council [2021] NZCA 660.2 Court of Appeal (Civil) Rules 2005, r 35(3).3 Dokad Trustees Ltd v Auckland Council [2021] NZHC 2603 [Leave judgment].(c) in circumstances where Mr Mawhinney had been declined leave tobring the relevant proceedings, Dokad — an entity controlled byMr Mawhinney — could not itself commence either proceeding.[3] In the second judgment, the High Court awarded costs of $4,166.63 againstMr Mawhinney and Dokad, jointly and severally, in connection with the unsuccessfulleave application.4[4] Dokad's appeal to this Court relates to both the leave judgment and the costsjudgment. On 13 December 2021 I directed that it should be treated as a single appealagainst two judgments, rather than as two appeals.[5] In December 2021 Dokad applied for security for costs to be dispensed with,or alternatively a reduction in the amount of security for costs to be paid. Dokad alsosought an extension of time to pay security for costs. On 23 February 2022 the DeputyRegistrar declined to dispense with or reduce security for costs. The date for paymentof security for costs of $7,060 following that decision was 9 March 2022. Security forcosts has not yet been paid.The issues addressed in this judgment[6] Auckland Council and Dokad have each filed memoranda raising a number ofprocedural issues in connection with the appeal. I deal with each of those issues below.I have attempted to address the issues in a logical order, rather than in the order inwhich they were raised by the parties in their memoranda.Jurisdiction to hear the appeal[7] Auckland Council submit that the appeal is brought from decisions made bythe High Court on an interlocutory application, and that this Court does not havejurisdiction to hear the appeal unless leave is granted by the High Court under s 56(3)of the Senior Courts Act, or by this Court under s 56(5) if the High Court refuses leaveto appeal.4 Dokad Trustees Ltd v Auckland Council [2021] NZHC 2930 [Costs judgment] at [9].[8] Section 56 of the Senior Courts Act provides:56 Jurisdiction(1) The Court of Appeal may hear and determine appeals—(a) from a judgment, decree, or order of the High Court:(b) under the Criminal Procedure Act 2011:(c) from any court or tribunal under any other Act that confers onthe Court of Appeal jurisdiction and power to hear anddetermine an appeal.(2) Subsection (1) is subject to subsections (3) and (5) and to rules madeunder section 148.(3) No appeal, except an appeal under subsection (4), lies from any orderor decision of the High Court made on an interlocutory application inrespect of any civil proceeding unless leave to appeal to the Court ofAppeal is given by the High Court on application made within20 working days after the date of that order or decision or within anyfurther time that the High Court may allow.(4) Any party to any proceedings may appeal without leave to the Courtof Appeal against any order or decision of the High Court—(a) striking out or dismissing the whole or part of a proceeding,claim, or defence; or(b) granting summary judgment.(5) If the High Court refuses leave to appeal under subsection (3), theCourt of Appeal may grant that leave on application made to the Courtof Appeal within 20 working days after the date of the refusal of leaveby the High Court.(6) If leave to appeal under subsection (3) or (5) is refused in respect ofan order or a decision of the High Court made on an interlocutoryapplication, nothing in this section prevents any point raised in theapplication for leave to appeal from being raised in an appeal againstthe substantive High Court decision.[9] The leave judgment brought Dokad's judicial review proceeding to an end.Although the High Court did not make a formal order dismissing Dokad's proceeding,that was the effect of the judgment.[10] The scheme of s 56 is that appeals as of right are reserved for finaldeterminations in respect of a proceeding. A leave filter applies to appeals fromdecisions on interlocutory applications in order to avoid delay and unnecessary cost.The underlying assumption is that such decisions are made in the course of aproceeding, and appeal rights should be exercised when the proceeding comes to anend. If a procedural decision has affected the ultimate outcome, that issue can beraised in an appeal against the substantive High Court decision that concludes theproceeding: see s 56(6). I consider that s 56(4) must be interpreted purposively, toapply to decisions that have the effect of bringing to an end the whole of a proceeding.Such a decision is, for the purposes of s 56(4), a decision that dismisses the proceeding.[11] I consider that s 56(4), read in this purposive manner, applies to the leavejudgment. So leave is not required under s 56(3). Nor is leave required to appeal fromthe associated costs decision. Plainly that would be the case if the costs decision wereincluded in the leave judgment. It makes no difference that costs were determinedsubsequently, in a separate judgment.[12] It follows that this Court has jurisdiction to hear the appeals against the leavejudgment and the costs judgment.Did the notices of appeal comply with the Court's Rules?[13] Auckland Council submits that the notices of appeal that were presented forfiling in this Court did not comply with r 30 of the Court of Appeal (Civil) Rules 2005(Rules), which provides:30 Form of appeal(1) A notice of appeal or cross-appeal must be in form 2 of Schedule 1 orin a form to similar effect.(1A) A notice of appeal or cross-appeal must be signed by the appellant orrespondent personally or by that party's lawyer.(2) If a notice of appeal or cross-appeal is defective, a Judge may requirethe party who has filed the notice to remedy the defect within aspecified period of not less than 10 working days.(3) If the defect is not remedied within the specified period, the appeal isto be treated as having been abandoned.[14] Auckland Council says that it appears that Mr Peter Mawhinney signed thenotice of appeal, but that is not clear as the person who signed the notice of appeal isnot named.[15] In any event, Auckland Council submits, Dokad is a company so cannot signthe form "personally" as required by r 30(1A). The notices of appeal have not beensigned or filed by a lawyer. That is required by the principle in Re G J Mannix Ltd.5No leave was sought by the appellant to be represented by a person other than a lawyer,and Dokad has not established the sort of exceptional circumstances that might justifygranting leave for such representation.[16] Nor, Auckland Council submits, has leave been granted under r 6 of the Rulesfor the appeals to be filed despite not complying with r 30. Rule 6 provides:6 Effect of non-compliance with rules(1) If a document does not comply with these rules, the document cannotbe accepted for filing unless a Judge or the Registrar gives leave forthe document to be filed.(2) An application or an appeal is not invalid merely because there hasbeen a failure to comply with these rules in the course of theapplication or appeal.(3) However, the Court may set aside, amend, or deal with the applicationor appeal, or part of the application or appeal, in any other manner andon any terms that the Court thinks appropriate.[17] In Re G J Mannix Ltd this Court held that it is "well settled" that "a companyhas no right to be represented in the conduct of a case in Court except by a barrister;or by a solicitor in Courts or proceedings where solicitors have the right of audience".6Cooke J continued:7There is a cognate rule that, apart from statutory exceptions, a corporation hasno right to bring or carry on proceedings in a Court except by a solicitor.This refers to the filing of documents - writs, statements of defence, notices ofappeal, etc.5 Re G J Mannix Ltd [1984] 1 NZLR 309 (CA).6 At 310.7 At 311.[18] This principle has been affirmed by this Court on numerous occasions.8[19] It is clear that Dokad requires leave to be represented by Mr Mawhinney at anyhearing of the appeal. Dokad seeks leave for Mr Mawhinney to represent it: I addressthat application below.[20] In Mannix Cooke J observed that arguably there might be more ground forrelaxing the cognate rule that a corporation has no right to file documents except by asolicitor.9 It seems to me that the case for relaxation of that restriction for access tojustice reasons is even stronger today than it was in 1984 when Cooke J made thatobservation. But that issue should be determined in a suitable case following fullargument. For present purposes, on the assumption that the cognate rule still exists Igrant leave under r 6(1) of the Rules for the notices of appeal and other documentsfiled on behalf of Dokad to date to be filed notwithstanding any failure to comply withr 30 of the Rules, or any other requirement for documents to be signed by a lawyer.Application for Mr Mawhinney to represent Dokad[21] Dokad applies for leave to put its case through Mr Mawhinney.The application is made in a memorandum that appears to have been signed byMr Mawhinney. He says Dokad cannot afford the costs of retaining a lawyer. He sayshe is the "main mover" in the Dokad projects that are the subject of the proceedings.He is "the only person with any factual and legal knowledge that Dokad has toprosecute the appeal".[22] Dokad says that it was not represented by a lawyer in the High Court.Notwithstanding this, the High Court made a decision against Dokad. Dokad submitsthat if it is good enough for Dokad to be made the subject to what was in effect arestraining order while unrepresented by a lawyer, then it is good enough for Dokad'scase before this Court to be articulated by a non-lawyer. The memorandum adds that8 See for example Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA53, [2013] 2 NZLR 679 at [25]–[34]; Kai Iwi Tavern Ltd v NZ Guardian Trust Co Ltd [2013]NZCA 199 at [6]–[8]; Dreamtech Designs and Productions Pty Ltd v Clownfish EntertainmentLtd [2015] NZCA 491, [2015] 23 PRNZ 141 at [8]–[9]; and Jayashree Ltd v Moore [2022] NZCA151 at [5].9 Re G J Mannix Ltd, above n 5, at 311.Dokad was not heard in the High Court: the application for leave by Mr Mawhinneywas determined on the papers. Indeed Dokad was not a party to the application forleave by Mr Mawhinney.[23] Alternatively, Dokad asks that counsel be appointed to assist the Court.Dokad submits that there is an important question of public interest to be resolvedabout the extent to which a restraining order under s 166 of the Senior Courts Actextends to other persons such as Dokad.[24] It would not be appropriate to grant Dokad's application to be represented byMr Mawhinney at the hearing of this appeal, for three reasons.[25] First, Dokad has provided no evidence to support its claim that it is unable toafford the cost of legal representation.[26] Second, this is not a case that comes within the exceptional circumstances thatjustify departing from the Mannix rule. In Mannix Cooke J considered that leave mightbe granted:10 as a reserve or occasional expedient in emergency situations whencounsel is not available or in straightforward matters where the assistance ofcounsel is not needed by the Court or where it would be unduly technical orburdensome to insist on counsel.This is not an emergency situation. The issues raised by the appeal are by no meansstraightforward. It is not unduly technical or burdensome to insist on counselconducting the proceeding and presenting argument. The need for independentrepresentation is particularly acute to ensure that the appeal is properly confined to thenarrow legal issue that it raises, and does not become a vehicle for improper pursuitof other arguments.[27] That leads into the third reason for declining the application. Mr Mawhinneywas, at the time the proceedings and the appeal were commenced, subject to an orderunder s 166 of the Senior Courts Act. He was declined leave to pursue the claims.It would be inconsistent with the policy that underpins s 166 for Mr Mawhinney to be10 Re G J Mannix Ltd, above n 5, at 314.authorised to represent Dokad, and (as a result) authorised to argue for Dokad theclaims that he is not entitled to pursue on his own behalf. One of the rationales thatunderpins the Mannix rule is the need for professional objectivity in the presentationof a case. The s 166 order in respect of Mr Mawhinney indicates that he is notwell-placed to bring an appropriate level of professional objectivity to the presentationof Dokad's arguments.[28] Leave is therefore declined for Mr Mawhinney to represent Dokad.Any documents filed on behalf of Dokad from this date onwards must clearly identifyby whom they are signed, and by whom they are filed. Documents that are not filedby a lawyer acting for Dokad should not be accepted for filing by the Registrar.Position of second respondent[29] The Environment Court is named as the second respondent in the appeal.The second respondent has notified the Court that it abides the decision of the Courtin this appeal. It seeks leave to be excused from further attendance in this matter.[30] That is plainly appropriate. The second respondent is excused from furtherattendance in this appeal.Application for extension of time[31] Dokad seeks an extension of time to apply for a hearing date, and to file thecase on appeal. The grounds for the application are that events may have overtakenthe appeal proceeding, as a hearing that has been set down before Commissioners ofobjections to certain decisions by Auckland Council may render the appeal redundant.[32] Auckland Council does not oppose the application for an extension of timeunder r 43 of the Rules, and abides the decision of the Court.[33] It would be undesirable for Dokad and Auckland Council to be put to the costof preparing a case on appeal, and taking further substantive steps in the appeal, ifthere is a real prospect that it will be overtaken by events.[34] In these circumstances I grant an extension of time for filing the case on appeal,and for applying for a hearing date, until Thursday, 30 June 2022. Security for costsmust be paid before applying for a hearing date, as required by r 37(2) of the Rules.Result[35] This Court has jurisdiction to hear the appeal by Dokad.[36] Leave is granted under r 6(1) of the Rules for the notice of appeal and otherdocuments filed on behalf of Dokad to date to be filed notwithstanding any failure tocomply with r 30 of the Rules, or any other requirement for documents to be signedby a lawyer.[37] Leave is declined for Mr Mawhinney to represent Dokad. Any documents filedon behalf of Dokad from this date onwards must clearly identify by whom they aresigned, and by whom they are filed. Documents that are not filed by a lawyer actingfor Dokad should not be accepted for filing by the Registrar.[38] The second respondent is excused from further attendance in this appeal.[39] An extension of time is granted for filing the case on appeal, and for applyingfor a hearing date, until Thursday, 30 June 2022.Solicitors:Auckland Council, Auckland for First RespondentCrown Law Office, Wellington for Second Respondent