LAU v AUCKLAND COUNCIL [2019] NZCA 15

LAU v AUCKLAND COUNCIL [2019] NZCA 15 [21 February 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA29/2018[2019] NZCA 15BETWEEN EE KUOH (AUGUSTINE) LAUApplicantAND AUCKLAND COUNCILRespondentCourt: French and Gilbert JJCounsel: Applicant in personA J Ewing for RespondentJudgment:(On the papers)21 February 2019 at 11 amJUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] The applicant, Mr Lau, was charged with 35 offences underthe Resource Management Act 1991 and the Building Act 2004 arising out of unlawfuldevelopment of seven properties in Auckland. Mr Lau's company faced a further12 charges. The charges alleged non-compliant earthworks, building works and useand non-compliance with abatement notices, notices to fix, insanitary building notices,dangerous building notices and enforcement orders made by the Environment Court.[2] Mr Lau elected trial by jury and applied pre-trial for severance of each of the47 charges. He proposed that there should be a discrete week-long trial for each of thecharges. Judge O'Driscoll declined to sever the charges in a judgment delivered on22 December 2017.1[3] On 19 January 2018, Mr Lau applied for leave to appeal againstJudge O'Driscoll's decision. However, Mr Lau has done nothing further to advancehis application.[4] On 1 February 2018, Brown J directed that the application for leave to appealshould be dealt with by the Court separately from the proposed appeal and on thepapers.[5] Mr Lau subsequently accepted a sentence indication and pleaded guilty tothose charges that were not withdrawn. He was convicted and sentenced to a term ofimprisonment.[6] The proposed appeal is now moot but Mr Lau has failed to return a notice ofabandonment.[7] In a minute dated 29 November 2018, Gilbert J made the following directionsto bring the matter to a conclusion:(a) Mr Lau is to notify the Registrar in writing within 10 working days ofthe date of this minute if he wishes to proceed with his application forleave to appeal against the pretrial decision. If no such notice is given,the application for leave to appeal will be dismissed.(b) In the event Mr Lau gives such notice that he does wish to proceedwith his application, he is to file and serve any submissions in supportof his application no later than 20 December 2018.(c) If the respondent wishes to file any submissions in response beyondthose contained in its memorandum dated 23 January 2018, it is to fileand serve these within 10 working days of receipt of Mr Lau'ssubmissions.[8] Mr Lau did not comply with these directions. On 5 December 2018, Mr Lauwrote to the Registrar saying that he was unable to make any decision about hisapplication and indicated that he may wish to take legal advice. In a minute dated1 Auckland Council v Lau [2017] NZDC 26282.17 December 2018, Gilbert J directed Mr Lau to seek legal advice without delay if hewished to do so and advised that if no submissions were filed in support of hisapplication for leave to appeal by 20 December 2018, it would be dismissed. No suchsubmissions have been filed.[9] Section 338 of the Criminal Procedure Act 2011 empowers the Court to dismissan application for leave to appeal if the applicant fails to comply with a timetable orother procedural orders fixed for the application. Before dismissing an application forleave to appeal in reliance on this section, the Court must give the applicant10 working days' notice of its intention to dismiss the application. The applicationmay not be dismissed if the non-compliance has been rectified within the noticeperiod. These criteria are met in the circumstances we have outlined.[10] The application for leave to appeal is entirely without merit and is moot.In view of Mr Lau's failure to comply with the procedural orders, it is appropriate thatthe application for leave to appeal be dismissed.[11] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent