COOKE V AUCKLAND CITY COUNCIL COA CA125/2012

COOKE V AUCKLAND CITY COUNCIL COA CA125/2012 [15 June 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA125/2012[2012] NZCA 249BETWEEN PETER DAVID JAMES COOKEAppellantAND AUCKLAND CITY COUNCILRespondentHearing: 24 May 2012Court: Ellen France, Randerson and Asher JJCounsel: P D J Cooke in PersonM E Davenport for RespondentJudgment: 15 June 2012 at 10 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay security to the Registrar of the High Court in the sum of $620 not later than 5 pm on 16 July 2012.C The order made in the High Court staying the order to pay security is now at an end.D The application to adduce further evidence is dismissed.E The appellant must pay the respondent costs of $250.____________________________________________________________________REASONS OF THE COURT(Given by Ellen France J)Introduction[1] Mr Cooke, the appellant, brought proceedings in the District Court against the Auckland City Council (the Council).1 The claim was struck out part way through the trial by Judge Sharp.2 Mr Cooke appealed to the High Court against the strike out. On 15 November 2011, Venning J made an order that Mr Cooke pay $620 by way of security for costs on the appeal.3 Mr Cooke filed an application for leave to appeal against the decision that he pay security. In accordance with this Court'searlier decision, Mr Cooke's application has been dealt with as an appeal under s 66 of the Judicature Act 1908.4 In addition, Mr Cooke filed an application to adduce further evidence.Background[2] It is necessary to say something about Mr Cooke's claim against the Council and the District Court trial before we outline the High Court Judge's decision.Mr Cooke's claim[3] Mr Cooke said that on 12 January 2009 he was on his veranda at his residence. He explained he had made a complaint to the Council about a gas leak. Mr Cooke described how, on 12 January, a Council car drove up to the premises. What Mr Cooke said next occurred is summarised by Judge Sharp as follows:[5] ... The driver stopped, turned his car off, then turned it on again. Because, he says, Mr Cooke was awaiting important mail and did not want to move until he saw it arrive, he remained outside the boarding house. He says that the driver of this car did not leave for half an hour from 11.20 am until 11.50 am, nor did he turn his engine off.[6] It is Mr Cooke's evidence that at 11.50 am the driver turned his engine off, left his vehicle and crossed the road to the other side. He was not wearing a Council uniform, but about five or 10 minutes later another man appeared from the same direction, entered the car and turned the engine on again.1 Now Auckland Council.2 Cooke v Auckland City Council DC Auckland CIV-2010-004-1873, 14 June 2011.3 Cooke v Auckland City Council HC Auckland CIV-2011-404-4521, Minute of Venning J,15 November 2011.4 Cooke v Auckland City Council CA868/2011, Minute of the Court, 12 March 2012.[7] According to Mr Cooke's evidence he went up to the car andquestioned the driver, asking him to turn his engine off, and was given thedriver's name, being Mohammed. Mr Mohammed said that he had twopremises to inspect, Mr Cooke gave evidence that this gentleman waswearing a uniform of the Auckland City Council and must have been another environmental health officer.[4] Mr Cooke said that the hydrocarbon and carbon monoxide emissions from the exhaust of this Council vehicle poisoned him and caused brain damage. As a result of what occurred he had to visit the Emergency Department of the Auckland Hospital that day.[5] Mr Cooke's claims were based on breach of a statutory duty under the Local Government Act 2002, exemplary damages under s 319 of the Accident Compensation Act 2001 and negligence.The District Court trial[6] Mr Cooke gave evidence before Judge Sharp and also called evidence from a fellow resident at the boarding house. That witness had no recollection of the incident. The Judge records Mr Cooke's evidence that the Council and the relevanthealth body were attempting to deny the reality of the incident and the damage it caused. Further, the Judge said:[13] ... he believes that significant amounts of carbon monoxide must have been emitted on the 12th, and possibly also some toxic hydrocarbons. He believes that test results of his blood indicate a level of carbon monoxide one-third of that requiring emergency treatment; that level is sufficient to cause some long-term damage, or damage that requires therapeutic and nutritional repair.[7] Mr Cooke also filed evidence of his medical consultations on the relevant date. That evidence indicated that none of the doctors Mr Cooke had seen after the incident believed that he was suffering from toxicity, particularly of the carbon monoxide type. Nor was there any evidence that Mr Cooke had suffered any kind of brain damage. Mr Cooke sought to rely on evidence he said would emerge when three further witnesses appeared the next day to answer summons. The three witnesses were Dr Young from the Meadowbank Medical Centre where Mr Cooke was seen by a doctor, Dr Davidson from LabPlus at Auckland Hospital and JohannVendrig of the Information Services, Auckland District Health Board, Greenlane Clinical Centre.[8] The trial was scheduled for a day and a half. Part way through the first day, the Council applied to strike out the proceedings. In granting the strike out application, Judge Sharp took the view that Mr Cooke was wrong to believe that if those witnesses had attended to give evidence on oath they would support his allegations. Mr Cooke had not been able to get any of these witnesses to cooperatewith "will say" statements.[9] On the breach of statutory duty based on the Local Government Act, Judge Sharp said that even if there was a right of action arising for an individual, the sort of duty argued for in this case did not exist and could not be enforced. The Judge said that Mr Cooke could not prove brain damage and that in any event any damage was not of a kind that statute was designed to prevent.[10] In terms of the claim for exemplary damages under the Accident Compensation Act, the Judge said there was nothing outrageous about theCouncil's actions even if they were able to be proved.[11] Finally, in terms of the negligence claim, Judge Sharp concluded that there was no duty of care, no breach, nor any link between any breach of duty and the damage alleged to have been suffered.The decision to award security for costs[12] Mr Cooke appealed to the High Court. At a case management conference for the appeal, Venning J noted that the Council had sought security for costs and that the application was opposed by Mr Cooke. The Judge continued:[6] ... [Mr Cooke] says that he is in receipt of an unemployment benefit and seeks waiver of security. Mr Cooke has advised that with his unemployment benefit and the supplementary accommodation benefit he receives $330 net a week. His rental is $240. While I appreciate Mr Cooke's circumstances, the respondent and its rate payers are put to the cost of opposing this appeal. There should be some security available to the Council in the event the appeal is dismissed. I take into account Mr Cooke'scircumstances. The usual order for security for costs would be $940. I propose to reduce that sum to $620 in the circumstances and also to extend the time for payment.[13] The Judge said unless security was paid by the set date, the appeal would be treated as abandoned and dismissed without any further call before the Court.Appeal against decision to award security[14] The relevant part of the High Court Rules provides that:5(2) The Judge must fix security for costs at the case management conference relating to the appeal, unless the Judge considers that in the interests of justice no security is required.[15] The test is therefore what is in the interests of justice. We agree with the respondent that the following factors may be relevant:(a) the importance of the issues raised in the appeal and the public interest in determining them;6(b) the circumstances and merits of the appeal;7 and(c) whether the appellant's appeal rights will be rendered nugatory ifsecurity is not waived.[16] In this case, Mr Cooke says his claim is an important one because it involves the potential use of violence by the Council. Further, while he disputes that the merits of the appeal are a consideration, he says his claim is meritorious. Finally, Mr Cooke says he is impecunious and cannot pay. His submission is that he is being unlawfully discriminated against as a beneficiary by the requirement to pay security. The last point amounts to a submission the appeal will be made nugatory. However,5 Rule 20.13.6 G v Chief Executive of the Ministry of Social Development [2010] NZSC 141, (2010)20 PRNZ 705.7 Clarke v Watts [2010] NZCA 221, (2010) 20 PRNZ 474 at [10] and [16]; and RIG v ChiefExecutive of the Ministry of Social Development [2010] NZCA 370, (2010) 20 PRNZ 703 at [4].we note Mr Cooke disputes that the effect of non-payment of security without more results in the appeal being dismissed.8[17] The Council says Mr Cooke's substantive case has no merit and is notarguable. Ms Davenport for the Council also argues that no issues of public interest are raised by the appeal. On this basis, and on the grounds that any further appeals are to be funded by ratepayers, she says the Council is entitled to rely on the High Court's decision to fix security at the very least. Ms Davenport also submits that impecuniosity is not of itself determinative. That factor has been appropriately taken into account by the reduction in the sum payable and the extension of time for payment.[18] Essentially, we agree with the Council's submissions. The proposed appealhas no apparent merit. Judge Sharp concluded the pleaded allegations were "entirely speculative and without foundation".9 Based on the evidence put forward by Mr Cooke, that assessment appears accurate. Importantly, even now, Mr Cooke does not advance any evidence that suggests otherwise. Rather, he maintains that if the various medical practitioners had given evidence in answer to their summons, they would have confirmed his view of events. Nothing is advanced to support that proposition and, as we have noted, the available evidence contradicts it.[19] The doctor who saw Mr Cooke at the Emergency Department on the day of the incident commented in the cover note for the clinical notes as follows:10This man presented to the emergency department as he felt that he had carbon monoxide poisoning. He claims this has happened a number of times before, and that people may be doing this deliberately. On arrival here his obs were all within normal limits, as was his exam, and there was no suggestion of carbon monoxide toxicity. He did appear to have some unusual ideas relating to possible persecution. He was discussed with psychiatry liaison as he was apparently seen in the past with ? [schizoaffective] disorder. He declined to engage with them. He was8 This is based on the wording of r 20.13(5) which refers to non-compliance with a security orderresulting in a "deemed abandonment" of the appeal.9 McGechan on Procedure (looseleaf ed, Brookers) at [HR15.1.02(1)(a)], and see CivilProcedure: District Courts & Tribunals (online looseleaf ed, Brookers) at [DR 2.50.17]referring to rr 2.50.1 and 2.50.3. The Judge also said the proceedings were frivolous andvexatious and an abuse of process.10 Cited in Cooke v Auckland City Council, above n 2, at [38].discharged home, but I would like it if he could be reviewed by his normalGP [20] The Judge referred to the blood gas test result after Mr Cooke's blood wasdrawn for testing on 12 January 2009. That showed a level of toxicity from the carbon monoxide of 0.6 per cent. The interpretation of that result as sent to Mr Cooke was that a normal range is 0–5 per cent. A note of a medical consultation on 11 November 2009, records that the doctor had explained to Mr Cooke that the normal range for carbon monoxide poisoning was 0–5 per cent.[21] Mr Cooke now suggests there may be something in the hydrogen levels shown in the blood tests. Again, there is nothing to support the claim.[22] Accordingly, we have concluded that this is one of those cases where even though the appellant is unable to pay, the matter should not proceed except on the payment of security. We are satisfied there is no apparent merit in the appeal. We are also satisfied that the appeal does not raise any issues of importance or public interest. Even if the consequence of the order for security was that the appeal right was rendered nugatory, that does not alter the assessment. Venning J went as far as he needed to do to reflect the relevant interests by reducing the sum payable and extending the period within which it had to be paid.Application to adduce further evidence[23] It is not necessary to address this application. We would have declined it as none of the evidence Mr Cooke seeks to advance is relevant to any matter in issue on this appeal.Result[24] For these reasons, the appeal is dismissed. The order that Mr Cooke pay security was stayed pending this appeal.11 That stay is now at an end. Ellis J said that Mr Cooke would have ten working days to pay security. In the circumstances,11 Cooke v Auckland City Council HC Auckland CIV-2011-404-4521, Minute of Ellis J,23 February 2012.we consider Mr Cooke should have a month to pay as was anticipated by Venning J in his initial order. Accordingly, Mr Cooke must pay the sum of $620 not later than 5 pm on 16 July 2012. The application to adduce further evidence is declined. The respondent having succeeded is entitled to at least a small sum by way of costs. The appellant must pay the respondent costs of $250.Solicitors:Legal Services Group, Auckland City Council for Respondent