FALOON v PLANNING TRIBUNAL AT WELLINGTON [2019] NZCA 236

FALOON v PLANNING TRIBUNAL AT WELLINGTON [2019] NZCA 236 [19 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA685/2018[2019] NZCA 236BETWEEN CLARENCE JOHN FALOONFirst ApplicantCLARENCE JOHN FALOON, SUING IN AREPRESENTATIVE CAPACITYSecond ApplicantAND PLANNING TRIBUNAL ATWELLINGTONFirst RespondentATTORNEY-GENERAL SUED ONBEHALF OF PALMERSTON NORTHJOINT VENTURE AIRPORTSecond RespondentATTORNEY-GENERAL SUED ONBEHALF OF MINISTER OF LANDSThird RespondentCLERK OF THE EXECUTIVE COUNCILFourth RespondentHIGH COURT OF NEW ZEALAND(TAURANGA REGISTRY)Fifth RespondentATTORNEY-GENERAL SUED ONBEHALF OF THE COMMISSIONER OFINLAND REVENUESixth RespondentCourt: French and Stevens JJCounsel: First and Second Applicants in personV McCall and A P Lawson for Third, Fourth and SixthRespondentsJudgment:(On the papers)19 June 2019 at 10.30 amJUDGMENT OF THE COURTThe application for leave to appeal the decision of the High Court dated19 September 2019 is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Faloon filed a claim in the High Court. In a judgment dated 13 September2018, Dobson J struck the claim out as an abuse of process.1 The Judge also madea limited civil restraint order under s 166 of the Senior Courts Act 2016.2 Mr Faloonthen asked the Judge to set aside his strike out order and to make an order suppressingpublication of the judgment on the grounds of irregularity. In a minute dated19 September 2018, the Judge declined to do either of those two things.3[2] Having failed to obtain leave in the High Court to appeal Dobson J's minute of19 September 2018, Mr Faloon filed an application for leave to appeal that minute inthis Court under s 56(5) of the Senior Courts Act.4 It is that application which is thesubject for determination by us on the papers.5[3] In support of his application for leave to appeal, Mr Faloon says there wereirregularities which prompted him to ask Dobson J to set aside his judgment. The firstalleged irregularity is that contrary to r 5.35B(3) of the High Court Rules 2016the judgment did not contain a statement of his right to appeal against the decision,secondly, that the heading of the judgment did not comply with r 5.12 ofthe High Court Rules in that it failed to identify the dual capacities in which he sues,1 Faloon v Planning Tribunal [2018] NZHC 2420.2 At [24].3 Faloon v Planning Tribunal HC Palmerston North CIV-2018-454-77, 19 September 2019.4 Faloon v Planning Tribunal HC Palmerston North CIV-2018-454-77, 2 October 2018.5 Mr Falloon has also filed an appeal against Dobson J's judgment of 13 September 2018. That isan appeal as of right and is yet to be heard.and thirdly the Judge misapplied r 5.18 which requires any denial of a representativecharacter to be specific.[4] In our view, Mr Faloon's application falls well short of meetingthe high threshold for obtaining leave. The arguments he wishes to advance atthe proposed appeal are not tenable. None of the alleged errors would have warrantedthe judgment being set aside and therefore there is no prospect of this Court beingpersuaded to quash Dobson J's minute on appeal.[5] We also consider the application for leave is an indirect attempt to challengethe substantive merits of the judgment of 13 September 2018. However, there isalready an extant appeal filed as of right by Mr Faloon against that judgment.The hearing of that appeal is the proper forum for those issues to be canvassed.[6] We are satisfied it would not be in the interests of justice for leave to appeal tobe granted. It is accordingly declined.Solicitors:Crown Law Office, Wellington for Third, Fourth and Sixth Respondents