MAWHINNEY v AUCKLAND COUNCIL [2021] NZCA 144

MAWHINNEY v AUCKLAND COUNCIL [2021] NZCA 144 [29 April 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA132/2019[2021] NZCA 144BETWEEN PETER WILLIAM MAWHINNEYAppellantAND AUCKLAND COUNCILRespondentHearing: 30 September 2020Court: Brown, Gilbert and Katz JJCounsel: Appellant in personK Anderson, L M Van and B Ford for RespondentJudgment: 29 April 2021 at 10.30 amJUDGMENT OF THE COURTA The application to adduce further evidence on appeal is declined.B The appeal is allowed to the extent that the five-year order of theHigh Court is set aside and an order of three years is substituted.C The appeal is otherwise dismissed.D There is no order for costs.____________________________________________________________________Table of ContentsPara NoIntroduction [1]The statutory framework [4]Factual background [7]The Council's application [15]The High Court judgment [19]Issues on appeal [26]Application to adduce new evidence [28]The meaning and application of the "totally without merit"test [32]The parties' positions [32]The previous legislation [37]Law reform [39]The legislative history [45]The English jurisprudence [50]The meaning of the phrase [56]Applying the test [61]Did the Judge err in interpreting and applying the test? [67]Was the subdivision consent litigation totally without merit? [75]The proceeding [75]The High Court judgment [79]Our assessment [86]Was the boundary adjustment litigation totally without merit? [88]The proceeding [88]The High Court judgment [93]Our assessment [100]Was the compliance certificate litigation totally without merit? [104]The proceeding [104]The High Court judgment [108]The leave judgments [111]Our assessment [114]Did the Judge err in granting a restraining order? [115]Were there exceptional circumstances warranting an order offive years duration? [123]Were the terms of the order deficient? [129]Result [134]REASONS OF THE COURT(Given by Brown J)Introduction[1] A Judge of the High Court may make an order under s 166 of the Senior CourtsAct 2016 (the SCA) restricting a person from commencing or continuing civilproceedings where at least two proceedings commenced or continued by that personin any court or tribunal are or were totally without merit.[2] Having found that the appellant, Mr Mawhinney, had pursued threeproceedings against the Waitakere local authority which were totally without merit,Hinton J made an order restraining Mr Mawhinney, in any capacity including as atrustee of any trust, from commencing or continuing any civil proceeding (or matterarising out of a civil proceeding) that relates in any way to specified parcels of land inthe Waitakere Ranges for a period of five years.1[3] Mr Mawhinney challenges that judgment on several grounds including theinterpretation and mode of application of the "totally without merit" threshold and theJudge's finding that the three proceedings pursued by Mr Mawhinney satisfied thattest.The statutory framework[4] Orders under s 166 of the SCA2 restricting a person from commencing orcontinuing a civil proceeding in a senior court, another court or a tribunal may takethree forms that vary in scope of restriction:(a) a limited order which applies to a particular matter;3(b) an extended order which applies to a particular or related matter;4 and(c) a general order which applies to any civil proceeding.51 Auckland Council v Mawhinney [2019] NZHC 299 [High Court judgment].2 Defined as a section 166 order: Senior Courts Act 2016, s 169(11).3 Section 166(2)(a) and (3).4 Section 166(2)(b) and (4).5 Section 166(2)(c) and (5).While a limited order or an extended order may be sought by a party to a proceeding,only the Attorney-General may apply for a general order.6 However, a Judge of theHigh Court may also make any of the three orders on his or her own initiative.7[5] Section 167 specifies the grounds for the making various types of orders:167 Grounds for making section 166 order(1) A Judge may make a limited order under section 166 if, in civilproceedings about the same matter in any court or tribunal, the Judgeconsiders that at least 2 or more of the proceedings are or were totallywithout merit.(2) A Judge may make an extended order under section 166 if, in at least2 proceedings about any matter in any court or tribunal, the Judgeconsiders that the proceedings are or were totally without merit.(3) A Judge may make a general order if, in at least 2 proceedings aboutany matter in any court or tribunal, the Judge considers that theproceedings are or were totally without merit.(4) In determining whether proceedings are or were totally without merit,the Judge may take into account the nature of any interlocutoryapplications, appeals, or criminal prosecutions involving the party tobe restrained, but is not limited to those considerations.(5) The proceedings concerned must be proceedings commenced orcontinued by the party to be restrained, whether against the sameperson or different persons.(6) For the purpose of this section and sections 168 and 169, an appeal ina civil proceeding must be treated as part of that proceeding and notas a distinct proceeding.[6] An order under s 166 may restrain a party from commencing or continuing anyproceeding (whether generally or against any particular person or persons) of any typespecified in the order without first obtaining leave of the High Court.8 The order haseffect for a period up to three years as specified by the Judge but may be for a longerperiod not exceeding five years if the Judge is satisfied that there are exceptionalcircumstances justifying the longer period.96 Section 169(1) and (2).7 Section 169(3).8 Section 168(1).9 Section 168(2).Factual background[7] Mr Mawhinney (in his personal and trustee capacity) and companies controlledby him held interests in more than 120 hectares of land situated in the foothills of theWaitakere Ranges near Bethells Beach (the Waitakere land). Over a period of severalyears Mr Mawhinney's endeavours to subdivide the land gave rise to a number ofapplications to the Waitakere City Council (the Council), the relevant consentauthority, for approvals under the Resource Management Act 1991 (the RMA) andensuing litigation.[8] Several of those cases involved the application of s 91(1) of the RMA whichstates:91 Deferral pending application for additional consents(1) A consent authority may determine not to proceed with thenotification or hearing of an application for a resource consent if itconsiders on reasonable grounds that—(a) other resource consents under this Act will also be required inrespect of the proposal to which the application relates; and(b) it is appropriate, for the purpose of better understanding thenature of the proposal, that applications for any 1 or more ofthose other resource consents be made before proceedingfurther.[9] The proper approach to the application of s 91 was the subject of a thoroughexamination by the Environment Court in Waitakere Forestry Park Ltd v WaitakereCity Council.10 In that decision, Waitakere Forestry Park Ltd and Kitewaho BushReserve Co Ltd (Kitewaho), entities controlled by Mr Mawhinney, applied to theEnvironment Court under s 91(3) of the RMA for orders revoking s 91 determinationsmade by the Council. In a comprehensive decision, the Environment Court rejectedthe application and declined to make any order revoking the Council's determinations.10 Waitakere Forestry Park Ltd v Waitakere City Council [1997] NZRMA 231 (EnvC).[10] Section 91(1) was to the fore again in Waitakere City Council v Kitewaho BushReserve Co Ltd (the Kitewaho judgment).11 Kitewaho had made a variety ofapplications to the Council for subdivision consents under the RMA. Some of thoseapplications were deferred by the Council under s 91 on the basis that additionalresource consents were required from the Auckland Regional Council in relation tostormwater discharge.[11] Kitewaho applied to the Environment Court for a series of declarations relatingto the proposed subdivisions including whether or not the Council had acted correctlyin its determinations under s 91. The Environment Court struck out the applicationsas an abuse of the process of the Court, with the exception of those relating to the useof s 91.12 The Court indicated that it was inappropriate for a council to make use ofthe section where, as here, the applicant disputed the necessity of obtaining anotherresource consent, and that in this case the Council could have processed thesubdivision without deferring it under s 91.13 The Council appealed against thedecision in relation to s 91 and Kitewaho cross-appealed against the decision to strikeout for abuse of process.[12] The High Court allowed the Council's appeal, ruling that s 91 is a specificprovision giving a consent authority a discretion to determine not to proceed with thenotification or hearing of an application if it considers on reasonable grounds that theprovisions of the section are met.14 In respect of certain subdivision consentapplications the High Court accepted that the issue of s 91(1) was res judicata havingbeen previously dealt with in Waitakere Forestry Park Ltd v Waitakere City Council.15[13] The High Court also upheld the Environment Court's order striking out theproceeding, stating:1611 Waitakere City Council v Kitewaho Bush Reserve Co Ltd [2005] 1 NZLR 208 (HC) [Kitewahojudgment].12 Kitewaho Bush Reserve Co Ltd v Waitakere City Council EnvC Wellington A135/01, 10 December2001 at [7].13 These comments are contained in the Environment Court's interim decision: Kitewaho BushReserve Co Ltd v Waitakere City Council EnvC Auckland A106/2001, 18 October 2001at [68]–[69].14 Kitewaho judgment, above n 11, at [37].15 At [19]–[20], citing Waitakere Forestry Park Ltd v Waitakere City Council, above n 10.16 At [77].In reality, the Court was improperly being asked to give what amounted toadvisory opinions on a range of possible subdivision scenarios, some of whichmight proceed and some of which might not. Effectively, Kitewaho was on awide-ranging fishing expedition in an attempt to establish the mostadvantageous basis for its subdivisional aspirations. Armed with thoseadvisory opinions, Kitewaho then intended to structure its proposals in theway best calculated to achieve the desired outcome. There was therefore avery real sense in which the questions being asked were hypothetical as wellas substantial doubt as to which if any of the proposals would proceed and, ifso, in what form.[14] In the subsequent decade several proceedings were issued in respect of theparcels of the Waitakere land against the Waitakere City Council (and in due coursethe Auckland Council)17 by Mr Mawhinney (either in his personal capacity or asa trustee), or by entities controlled by him such as Kitewaho, Waitakere Forestry ParkLtd or Forest Trustee Ltd. Many of those proceedings are listed in Schedule B to theHigh Court judgment under appeal.18The Council's application[15] In November 2017 the Council filed an application for an extended order unders 166 of the SCA against Mr Mawhinney, not only in his personal capacity but also asa trustee of any trust, and any entities controlled by him. Schedule 1 of the applicationlisted the parties sought to be subject to the order as follows:Peter William MawhinneyPeter William Mawhinney (in a personal capacity)Peter William Mawhinney as trustee of any trustTrustsAny of the following trusts through their trustees:• Waitakere Forest Land Trust• Forest Trust• Sixty-six Auckland Trust• Boulder Trust• Any trust re-settled from any of the above trusts17 This judgment uses the shorthand "the Council" to refer to both, depending on the relevant time.18 See High Court judgment, above n 1.CompaniesAny of the following entitiesZebra Crossings Trading LimitedSixty-six Auckland LimitedWaitakere Forest Trust Limited[16] The order sought related to the commencement or continuation of proceedingsagainst the Council in any court or tribunal without leave of the High Court in relationto:(a) the parcels of land contained in the identifiers set out in Schedule 2 tothe application; and(b) resource consent applications, subdivision consents, certificates ofcompliance, existing use rights and any matters already determined bythe courts related to the land identified in Schedule 2 including theexercise of Council's powers in relation to those matters and anyassociated appeals.However the application did not specify the duration of the order sought, nor did itmake any reference to exceptional circumstances.[17] In reliance on s 167(5) of the SCA, which states that the proceedings reliedupon must be commenced or continued "by the party to be restrained", Mr Mawhinneycontended that several instances of litigation relied upon by the Council were notqualifying proceedings, because they were brought either by corporate entities or byMr Mawhinney in his capacity as a trustee of various trusts.[18] In response the Council elected to refine its application. As the Judgeexplained in her discussion of the terms of the order towards the end of the judgment:19[152] The Council originally proposed that I make an order restrainingMr Mawhinney and several named companies from commencing civilproceedings. But they subsequently withdrew the application in that form19 High Court judgment, above n 1.after Mr Mawhinney objected that this Court could not make an order againstcompanies that were not named as parties to this proceeding, citing s 168 ofthe Act, which in turn would mean that a case would need to be proven againstthem. That appeared to me to be correct.[153] The Council now seeks an order in the following terms:Mr Mawhinney is restricted, in any capacity, including butnot limited to as a trustee of any trust, from commencing orcontinuing any civil proceeding (or matter arising out of acivil proceeding), which relates in any way to the parcels ofland contained in the identifiers set out in Schedule A for aperiod of five years.[154] That order may possibly prevent Mr Mawhinney bringingproceedings in the name of corporate entities in any event, but as I understandit, the Council is unconcerned for the moment. It takes the view that in thiscase the combined effect of the bankruptcy and the s 166 order will be enoughto stop Mr Mawhinney bringing or continuing further proceedings in anycapacity. The Council says his being an undischarged bankrupt will preventhim from being a director of a company for some time, or for that matter fromlitigating in person. The Council's particular concern is to stopMr Mawhinney from litigating as a trustee, which it says might require thes 166 order.The High Court judgment[19] Hinton J rejected Mr Mawhinney's proposition that proceedings in which hesued as a trustee could not be properly considered for the purposes of s 167.20However the Judge proceeded on the footing that proceedings commenced bycorporate entities where Mr Mawhinney was not a named party were not eligibleproceedings. This had the consequence of excluding from consideration as qualifyingproceedings much of the litigation relied on by the Council.21 We touch on this issuefurther below.22[20] The Judge identified only three potential candidates as proceedingscommenced or continued by Mr Mawhinney which were totally without merit:20 At [63].21 At [68]–[69], although the Judge noted that those proceedings could still be relevant to the exerciseof the discretion under s 167.22 See [74] below.(a) Mawhinney v Waitakere District Council (while referred to by the Judgeas "the Sheppard Proceeding", we will adopt the description"the boundary adjustment litigation");23(b) Mawhinney v Waitakere City Council (referred to by the Judge as"the Fogarty Proceeding" but referred to in this judgment as "thesubdivision consent litigation");24 and(c) Perceptus Ltd v Waitakere City Council (referred to by the Judge as "theHeath Proceeding" but referred to in this judgment as "the compliancecertificate litigation"),25 which was a qualifying proceeding because inthe High Court Mr Mawhinney was substituted as the appellant.26[21] After discussing aspects of ss 166 and 167, noting that the phrase "totallywithout merit" is not defined and referring to the discussion in the report of theMinistry of Justice on the Judicature Modernisation Bill previously referred to by theHigh Court,27 the Judge stated:28[52] Under s 88B of the Judicature Act 1908, the predecessor to s 166, theproceedings complained of were required to be vexatious. While no longer anexplicit requirement, the test for vexatiousness is still relevant as to whetheran order is necessary. A Full Bench of this Court in Attorney-General vHeenan identified features that will indicate a claim is vexatious:(a) a pattern of complex, prolix, and sometimesincomprehensible pleadings;(b) the proceedings showing the respondent to be an almostcompulsive litigant against a widening circle of defendants;(c) extravagant claims or scandalous allegations which thelitigant has no prospect of substantiating or justifying;(d) the frequency with which part or all of the respondent'sstatements of claim have been struck out; and23 Mawhinney v Waitakere District Council EnvC Auckland A199/05, 7 December 2005.As explained below at [92] the ultimate determination of this litigation was by the High Court.24 Mawhinney v Waitakere District Council [2007] NZRMA 173 (HC).25 Perceptus Ltd v Waitakere City Council EnvC Auckland A40/2008, 4 April 2008.26 See Mawhinney v Waitakere City Council [2009] NZRMA 230 (HC) at [14].27 Judicature Modernisation Bill: Report of the Ministry of Justice to the Justice and ElectoralCommittee (April 2014) [Ministry of Justice Report] at [292]–[293]. See also Genge v VisitingJustice Christchurch Men's Prison [2018] NZHC 1457 at [29].28 High Court judgment, above n 1 (footnotes omitted).(e) the extent to which the respondent allows their proceedings tolie dormant.[53] A proceeding may be vexatious even if it contains the germ ofa legitimate grievance, or may disclose a cause of action or a ground forinstitution. The conduct and outcome of such a proceeding when viewed inthe overall light of the institution, conduct, and outcome of other proceedingsmay well demonstrate its own particular vexatiousness and unreasonableness.I consider these statements are equally applicable to whether a proceeding is"totally without merit" under s 166.[22] The Judge explained her approach to the task of deciding whether a proceedingwas totally without merit in the following way:29I note at the outset that I do not intend to do as Mr Mawhinney invites andconduct a "full rehearing" of the proceedings to which I will refer. I will focuson whether the proceedings, on the presiding Judge's view, had a hope ofsucceeding, and the manner in which Mr Mawhinney conducted himself inthose proceedings.[23] The Judge proceeded to review each of the three potentially qualifyingproceedings from that perspective, concluding in this way:[116] I consider that all three of the proceedings I have discussed weretotally without merit. All three proceedings were struck out in their entirety,and, in the latter two, the decision to strike out was affirmed on appeal (in thecase of the Heath Proceeding, the decision was affirmed twice).[117] The proceedings have exposed the Council to disproportionate levelsof inconvenience and expense, chiefly because of Mr Mawhinney's tendencyto raise overly technical points and to attempt to re-argue points alreadydetermined in previous decisions. This was demonstrated in comments byJudges in all three proceedings, and by the Judges applying reasonablysignificant uplifts to the costs awarded against Mr Mawhinney.[118] In both the Sheppard and Heath Proceedings, the proceeding wasfound to be an abuse of process. In the Heath Proceeding, the Court of Appealalso commented that Mr Mawhinney was improperly using the appellateprocess.[119] For these reasons, I am satisfied that the proceedings were totallywithout merit. They have been characterised by Mr Mawhinney's continuingto argue effectively the same point that was determined finally by Randerson Jin Kitewaho in 2005, by unnecessarily complex and ultimately fruitlessarguments, and all of them ultimately could never have succeeded.[24] The threshold of at least two totally without merit proceedings having beenmet, the Judge turned to whether an order was appropriate. She considered numerous29 At [70].factors which she observed would have been hallmarks of a vexatious claim under theformer regime.30 While she considered that the three proceedings were sufficient bythemselves to justify a s 166 order,31 the Judge viewed the other litigation (which hadnot been taken into account on the threshold issue) as relevant, though not necessary,to deciding whether to exercise the discretion under s 167.32[25] Having concluded that an extended order was appropriate,33 the Judgeproceeded to find exceptional circumstances existed justifying an order longer thanthree years,34 noting the length of time Mr Mawhinney had been litigating with theCouncil and the timespan of the three qualifying proceedings. The Judge remarkedthat a five-year restriction was minor by comparison, and made such an orderaccordingly.35Issues on appeal[26] While there was a substantial measure of agreement on the issues fordetermination, the parties were unable to settle a list. We perceive that the argumentsadvanced raise the following issues:(a) The meaning and application of the "totally without merit" test.(b) Did the Judge err in interpreting and applying the test?(c) Were any of the three candidate proceedings totally without merit?(d) Did the Judge err in granting a restraining order?(e) Were there exceptional circumstances warranting an order of five yearsduration?(f) Were the terms of the order deficient?30 At [124].31 At [126].32 At [128].33 At [133].34 See Senior Courts Act, s 168(2).35 High Court judgment, above n 1, at [159]–[160].[27] Issue (a) subsumes the issue identified by Mr Mawhinney concerning the statusof case law under the former legislation.36 Issue (f) addresses a further issue raised byMr Mawhinney about the utility of the order in light of his criticism of the manner inwhich the properties were described in Schedule A of the judgment.Application to adduce new evidence[28] Mr Mawhinney sought to adduce on appeal a considerable volume ofdocumentary evidence comprising district plan provisions, applications for resourceconsent, requests for certificates of compliance, consent authority's determinations,applications for declarations under s 310 of the RMA and enforcement orders unders 314 of the RMA, expert evidence, and court determinations (primarily theEnvironment Court).[29] Although extensive, the material was said to be limited to the subdivisionconsent applications and requests for certificates of compliance that were the genesisof the three proceedings considered by the Judge. Mr Mawhinney explained:There were other applications that led to other proceedings, but material asregards those other applications is not included in the subject applicationunder rule 45, because Hinton J wrote at paragraph [22] of her Judgment thatshe did not review the other proceedings or study the other cases closely.[30] The application was opposed by the respondent on the grounds that theproposed evidence was neither fresh nor cogent. Rejecting, as discussed below,37Mr Mawhinney's contention that the exercise of the s 166 jurisdiction involved ineffect appeals of the relevant proceedings, the respondent also contended that thematerial was not relevant to the appeal.[31] We accept that the proposed additional material does not satisfy the fresh andcogent criteria. However in any event, given the detailed reasons in the judgments inthe candidate proceedings, it has not proved necessary to have resort to the additionalmaterial. For both reasons the application is declined.36 Judicature Act 1908, s 88B.37 At [62] below.The meaning and application of the "totally without merit" testThe parties' positions[32] The contest between the parties was less about the interpretation of thethreshold expression and more about its mode of application in the context of theCourt's consideration of issuing a s 166 order. Consequently we discuss those twoissues together.[33] It was Mr Mawhinney's contention that in adopting the expression totallywithout merit the legislature deliberately set a very high test, namely that a proceedingmust be completely devoid of merit. Hence a proceeding which was only partlywithout merit would not qualify for the purposes of s 167. However in the course ofargument he expressed agreement with the reference in the Council's submissions tothe "bound to fail" threshold, which is satisfied where there is no rational basis onwhich a claim can succeed.[34] Having reviewed the legislative history, Ms Anderson for the Council drewattention to the acceptance by the English Court of Appeal in R (Wasif) v Secretary ofState for the Home Department that the phrase totally without merit means no moreand no less than bound to fail.38 She also noted the distinction drawn in Wasif betweencases which were bound to fail and others where a claimant has a rational argument insupport of its claim but where the Judge is nevertheless confident that the argument iswrong.39 However Ms Anderson did not firmly nail the Council's colours to the mastfor, in supporting the Judge's conclusion on the three proceedings, she invoked severalgrounds additional to the bound to fail test.40[35] A cause of particular concern for the Council was its apprehension thatMr Mawhinney's construction of s 167 would require a Judge to undertake a de novoassessment of the merits of the underlying proceedings. That was an understandablereaction to Mr Mawhinney's contention that not only did the three proceedings not38 R (Wasif) v Secretary of State for the Home Department [2016] EWCA Civ 82, [2016] 1 WLR2793 at [11], quoting R (Grace) v Secretary of State for the Home Department [2014] EWCACiv 1091, [2014] 1 WLR 3432 at [13].39 At [15].40 See [57] below.meet the totally without merit threshold but also that the three judgments, whileres judicata, were erroneous. He argued that Hinton J erred in relying on proceedingsthat were determined by wrong decisions.[36] Before explaining our conclusion on those contentions, we first review theearlier legislation, the law reform and legislative processes, as well as the recentEnglish case law considering the equivalent English jurisdiction.The previous legislation[37] Prior to the SCA the statutory power of the High Court to restrain the activitiesof vexatious litigants was provided in s 88B of the Judicature Act 1908 which stated:88B Restriction on institution of vexatious actions(1) If, on an application made by the Attorney-General under this section,the High Court is satisfied that any person has persistently and withoutany reasonable ground instituted vexatious legal proceedings, whetherin the High Court or in any inferior court, and whether against thesame person or against different persons, the court may, after hearingthat person or giving him an opportunity of being heard, order that nocivil proceeding or no civil proceeding against any particular personor persons shall without the leave of the High Court or a Judge thereofbe instituted by him in any court and that any civil proceedinginstituted by him in any court before the making of the order shall notbe continued by him without such leave.[38] In Brogden v Attorney-General this Court explained the nature of the task whenconsidering an application for an order under s 88B:41[22] What is required is an appropriate assessment of the whole course ofthe respondent's conduct of the litigation in question, including the manner inwhich and apparent purpose for which each proceeding has been conducted,including resort to the appeal process where that has been done without anyrealistic prospect of success. We note the adoption by the High Court in thiscase of the observation made in Attorney-General v Hill (1993) 7 PRNZ 20,22 that the concern is not with whether the proceeding was institutedvexatiously but whether it is properly described as a vexatious proceeding. Ofcourse, if the litigant is found to have had an improper purpose in commencingproceedings, a finding that the litigation was vexatious is more likely. Thetest is, however, whether, overall, the various proceedings have beenconducted by the litigant in a manner which properly attracts that epithet.41 Brogden v Attorney-General [2001] NZAR 809 (CA).Law reform[39] Various problems with s 88B were identified by the Law Commission throughits review of the Judicature Act, including that only the Attorney-General could applyfor an order, the remedy was one of last resort with a high threshold, the jurisdictiondid not take into account interlocutory applications and the status of appeals wasunclear.42 These topics were discussed by the Commission in Issues Paper 29, whichalso reviewed the criteria for obtaining an order, expressing the provisional view thatthe requirement that the proceeding be instituted "without any reasonable ground"should be removed because it did not appear to add anything to the term "vexatious".43[40] The Commission's final report recommended a system of graduated orders fordealing with persons who bring vexatious proceedings which would be availableadditionally to parties to the proceedings or to the courts on their own motion.44It proposed that interlocutory applications, appeals and criminal prosecutions broughtby litigants would also be able to be taken into account.45 The report recommendedthe current three tier system and introduced, without specific discussion, the "totallywithout merit" test which in due course appeared in cl 163 of the JudicatureModernisation Bill 2013 (178–1).46 The Bill implemented the Government's responseto the Law Commission's report and eventually led to the enactment of the SCA.[41] A Ministry of Justice report to the Justice and Electoral Committee reviewingsubmissions received on the Bill noted the New Zealand Bar Association'sreservations that the totally without merit test might not be sufficiently wide.The Association considered that the term "vexatious proceeding" had a wellunderstood meaning which better captured elements of harassment or abuse and itproposed that the provision should contain a non-exhaustive list of considerations fordetermining vexatious proceedings.4742 Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126,2012) [Law Commission Report] at [16.3]. Section 88B also related only to the institution ofproceedings rather than the continuation of proceedings.43 Law Commission Review of the Judicature Act 1908: Towards a Consolidated Courts Act(NZLC IP29, 2012) at [16.65].44 Law Commission Report, above n 42, at 162: recommendations 83 and 84:45 At 163: recommendation 85:46 At [16.27]–[16.32].47 Ministry of Justice Report, above n 27, at [280]–[281].[42] However the Ministry of Justice Report did not adopt either of thosesuggestions, explaining:288. Advisers note the view that "vexatious" is better defined than "totallywithout merit" and that a proceeding might be regarded as vexatiousbut still have merit.289. The term vexatious has never been clearly defined in New Zealandlegislation, so understanding has relied on common law. In Attorney-General v Hill, the following factors were identified as leading to adetermination of vexatious as used in section 88B of the JudicatureAct:• a pattern of complex, prolix, and sometimes incomprehensiblepleadings;• proceedings showing almost compulsive litigation against awidening circle of defendants;• extravagant claims and unfounded attacks;• the frequency with which claims were struck out; and• the extent to which proceedings have been allowed to lie dormant.290. Other cases have since added to the definition so, while the term isreasonably well understood, it is possibly not quite as well defined asthe Bar Association indicates. (Footnote omitted.)[43] The Ministry of Justice Report then focussed on the evolution of the vexatiouslitigant jurisdiction in England:291. In England, the Civil Procedure Rules Part 3C (the Rules), broughtinto force in 2004, have largely superseded the use of their SeniorCourts Act 1981. That latter Act provides for an order similar to thatof our Judicature Act because both acts had their origins in theVexatious Actions Act 1896 (UK). The Rules provide for a schemesimilar to that in the Bill, including the use of a totally without merittest.292. The term "totally without merit" is not defined in the Rules. Itsmeaning is reliant on case law just as the definition of vexatious is inthis country. A survey of English cases indicates the following factorshave been considered as relevant in deciding whether a proceeding istotally without merit:• that there are no prospects whatever for success;• exposure of defendants to inconvenience, harassment andexpense out of all proportion to the gain a plaintiff is likely toreceive;• actions are brought at the drop of a hat despite the lack ofmerit; and• no regard is paid to merit, proportionality or cost by a litigant.293. We also note that the English system closely links struck outproceedings to the making of orders restricting civil litigation. Judgesare expected to note on a struck out proceeding if it would beconsidered totally without merit. As a result, the grounds for strikeout in the Civil Procedure Rules are also relevant. These are:• that the statement of case discloses no reasonable grounds forbringing or defending the claim;• that the statement of case is an abuse of the court's process or isotherwise likely to obstruct the just disposal of the proceedings;or• that there has been a failure to comply with a rule, practicedirection or court order.[44] The Ministry of Justice Report concluded:294. It can be seen that legislative definitions and the courts themselvestend to centre on common considerations, regardless of the term orcountry involved.295. This observation could support the inclusion of a common set ofcriteria to underpin the core test, similar to Australian legislation.Advisers have considered this approach, as put forward by theBar Association, but still favour not specifying criteria. We take thisview because a) there is already a range of accepted criteria that thecourt is likely to draw on from New Zealand and overseasjurisdictions, and b) proving a set of criteria in a case may still missthe reason why proceedings are necessary. For example, intention toharass and annoy is a common criterion, yet vexatious litigants oftendo not intend this at all – they just want to be proven right.296. By not including criteria, each case can be argued on its merits anddrawing on the most relevant reasons in the circumstances. The legislative history[45] In the original Judicature Modernisation Bill the grounds for each order utilisedthe phrase "in more than 1 proceeding" as can be seen in cl 163(1):163 Ground for making section 162 order(1) A Judge may make a limited order if, in more than 1 proceeding aboutthe same matter in any court or tribunal, the Judge considers that 2 ormore of the proceedings are or were totally without merit.[46] Several changes were introduced by the Justice and Electoral Committee in thesecond iteration of the Bill drawing on recommendations made in the Ministry ofJustice Report. To facilitate comprehension, we set out the revised version with theamendments revealed:48163 Ground for making section 162 order(1) A Judge may make a limited order if, in more than 1 proceeding atleast 2 proceedings about the same matter in any court or tribunal, theJudge considers that 2 or more of the proceedings are or were totallywithout merit.(2) A Judge may make an extended order if, in more than 1 proceeding atleast 2 proceedings about any matter in any court or tribunal, the Judgeconsiders that 2 or more of the proceedings are or were totally withoutmerit.(3) A Judge may make a general order if, in more than 1 proceeding atleast 2 proceedings about any matter in any court or tribunal, the Judgeconsiders that 2 or more of the proceedings are or were totally withoutmerit.[47] Further changes, described as minor and to improve drafting, were made bya Supplementary Order Paper (SOP).49 Only the grounds for a limited order werematerially changed:163 Grounds for making section 162 order(1) A Judge may make a limited order under section 162 if, in at least 2civil proceedings about the same matter in any court or tribunal, theJudge considers that at least 2 or more of the proceedings are or weretotally without merit.48 Judicature Modernisation Bill 2014 (178–2).49 Supplementary Order Paper 2016 (197) Judicature Modernisation Bill 2014 (178–2) (explanatorynote) at 3.[48] The SOP made no comment on those changes which were not debated in theHouse. However they serve to indicate how (but do not explain why) the structure ofthe grounds for a limited order differs from the other two orders and adopts the unusualphrase "at least 2 or more of the proceedings".[49] The grounds for each of the three forms of s 166 order simply employed thetotally without merit test. They did not adopt the calibration reflected in the groundsfor the equivalent orders in the United Kingdom's Practice Direction 3C – CivilRestraint Orders shown in the comparative table below:Order SCA, s 167 Practice Direction 3C – CivilRestraint Order (CROs)Limited The Judge considers that atleast two or more of theproceedings are or weretotally without merit.Where a party has made two or moreapplications which are totally withoutmerit.Extended In at least two proceedingsabout any matter the Judgeconsiders that the proceedingsare or were totally withoutmerit.Where a party has persistently issuedclaims or made applications whichare totally without merit.General In at least two proceedingsabout any matter the Judgeconsiders that the proceedingsare or were totally withoutmerit.Where the party against whom theCRO is made persists in issuingclaims or making applications whichare totally without merit, incircumstances where an extendedCRO would not be sufficient orappropriate.The English jurisprudence[50] A convenient point of departure is the succinct concurrence of Lord Dyson inR (Grace) v Secretary of State for the Home Department:5019 The phrase "totally without merit" is now firmly embedded in ourCivil Procedure Rules. It is perhaps unfortunate that the word "merit" isincluded in the phrase. We are familiar with the notion of a claim beingmeritorious or having merit, connoting the idea that the claim is just or "is inaccordance with the merits", but the word "merit" in the phrase "totally50 R (Grace) v Secretary of State for the Home Department, above n 38.without merit" does not have this meaning. Although the court always seeksto do justice, the purpose of "totally without merit" is to enable the court toroot out claims which are bound to fail, and, for the reasons given by MauriceKay LJ, I would construe that phrase as meaning "bound to fail".[51] Delivering the primary judgment Maurice Kay LJ explained that the phrasefirst entered the lexicon of civil procedure in the context of civil restraint orders:8 It was first taken up soon after that in amendments to the [CivilProcedure Rules], where it now appears in a number of places. Its originwithin the jurisprudence of civil restraint orders is acknowledged byparagraph 2.1 of the Practice Direction 3C supplementing [Civil ProcedureRules] r 3.11, which provides: "A limited civil restraint order may be madeby a judge of any court where a party has made two or more applications whichare totally without merit."9 There the mischief sought to be addressed is that of the litigant whocommences a plurality of hopeless cases. Its concern is to prevent furtherabusive or vexatious claims by placing a restriction in the form of a civilrestraint order in relation to future litigation. It does not prevent the bringingof subsequent meritorious cases, for which permission can be sought andobtained.10 At the same time there was an amendment to the [Civil ProcedureRules] empowering a judge of the Court of Appeal to certify an applicationfor permission to appeal to this court as totally without merit, but its solepurpose at that time was to provide material for the making of a civil restraintorder on that or a future occasion. It did not then prevent the applicant fromrenewing his application to an oral hearing. [52] The issue in Grace concerned not a civil restraint order but a further provision51which extended the limitation on requests for permission to apply for judicial reviewto a claimant with no previous history of abusive or vexatious claims, removing theentitlement to an oral hearing of the application for permission. It was argued thata finding of totally without merit should not be made unless the claim was so hopelessor misconceived that a civil restraint order would be justified if such applications werepersistently made.[53] Rejecting that submission Maurice Kay LJ said:13 I return to the purpose of [Civil Procedure Rules] r 54.12(7). It is notsimply the prevention of repetitive applications or the control of abusive orvexatious litigants. It is to confront the fact, for such it is, that the exponentialgrowth in judicial review applications in recent years has given rise to asignificant number of hopeless applications which cause trouble to public51 Civil Procedure Rules 1998 (UK), r 54.12(7).authorities, who have to acknowledge service and file written grounds ofresistance prior to the first judicial consideration of the application, and placean unjustified burden on the resources of the Administrative Court and theUpper Tribunal. Hopeless cases are not always, or even usually, the playthingsof the serially vexatious. In my judgment, it would defeat the purpose of [CivilProcedure Rules] r 54.12(7) if totally without merit were to be given thelimited reach for which Mr Malik contends. It would not produce the benefitsto public authorities, the Administrative Court or its other users which it wasintended to produce. I have no doubt that in this context totally without meritmeans no more and no less than "bound to fail". Addressing the issue of safeguards, Maurice Kay LJ observed that no judge wouldcertify an application as totally without merit unless confident, after carefulconsideration, that the case was truly bound to fail.52[54] As Ms Anderson noted, the meaning of the phrase was revisited in Wasif, wherethe Court of Appeal, with the Master of the Rolls again presiding, sought to reconcilethe different thresholds of "not arguable" and "totally without merit". As Underhill LJexplained:5313 [I]t is now generally accepted that the touchstone is whether theapplication [for permission to apply for judicial review] is "arguable" or has"a realistic prospect of success": the cases are legion, but the locus classicusis the judgment of Lord Bingham of Cornhill and Lord Walker ofGestingthorpe in Sharma v Brown-Antoine As a matter simply of languageit could be strongly argued that there is no real difference between thatcriterion and the criterion for [totally without merit] certification asestablished by the Grace case if a case is unarguable is it not bound to fail?But if that were so the result would be that whenever a judge refusedpermission to apply for judicial review the application should also be certifiedas [totally without merit]. It was common ground before us, and is plainlycorrect, that that cannot be the intention behind the relevant Rules. Therule-maker evidently intended that applications certified as [totally withoutmerit] should represent a sub-set of applications in which permission wasrefused: there must, therefore, be a difference between "not arguable" and"bound to fail", despite the conceptual awkwardness. The problem is how todefine the difference.[55] His Lordship concluded:15 In our view the key to the conundrum is to recognise that theconventional criterion for the grant of permission does not always in practiceset quite as low a threshold as the language of "arguability" or "realisticprospect of success" might suggest. There are indeed cases in which the judgeconsidering an application for permission to apply for judicial review can seeno rational basis on which the claim could succeed: these are in our view the52 R (Grace) v Secretary of State for the Home Department, above n 38, at [15].53 R (Wasif) v Secretary of State for the Home Department, above n 38.cases referred to in the Grace case as "bound to fail" (or "hopeless"). In suchcases permission is of course refused. But there are also cases in which theclaimant or applicant has identified a rational argument in support of hisclaim but where the judge is confident that, even taking the case at its highest,it is wrong. In such a case also it is in our view right to refuse permission; andin our experience this is the approach that most judges take. On this approach,even though the claim might be said to be "arguable" in one sense of the word,it ceases to be so, and the prospect of it succeeding ceases to be "realistic", ifthe judge feels able confidently to reject the claimant's arguments. Thedistinction between such cases and those which are "bound to fail" is notblack-and-white, but we believe that it is nevertheless real; and it avoids theapparent anomaly identified at para 13 above.The meaning of the phrase[56] On the face of it at least, the parties were in accord on the interpretation of thethreshold requirement. The Council's submission stated that the three proceedingswere totally without merit "because they were bound to fail, and/or had no prospect ofsuccess". As earlier noted, Mr Mawhinney endorsed that approach.54[57] However in its analysis of the candidate proceedings the Council addressedboth the threshold and other factors concurrently:6.10 The Council submits that the Three Proceedings:(a) Had no prospects of success, whatsoever, and were bound tofail.(b) Demonstrate Mr Mawhinney's propensity to issueproceedings at the drop of a hat.(c) Resulted in significant and unnecessary cost andinconvenience to the Council.(d) Could very well be classified as being designed toinconvenience Council.(e) Demonstrate Mr Mawhinney's lack of regard to the merit,proportionality, or costs in bringing or continuing proceedingsagainst the Council.(f) Make clear that Mr Mawhinney regularly fails to comply withrules, practice directions and court orders.54 See [33] above.[58] Items (b) to (f) draw from the factors the Ministry of Justice Report identifiedas relevant to the totally without merit test,55 factors which have previously beenadopted by the High Court.56 However, we agree with English jurisprudence and theparties in this case that a proceeding is totally without merit if it is bound to fail. In ourview a proceeding is either bound to fail or it is not. If a proceeding is bound to fail,then the absence of factors described in (b) to (f) would not provide a basis to redeemit. However, similarly, if a Judge concludes that a proceeding is not bound to fail, wedo not consider that the presence of factors (b) to (f) can be called in aid to assist itacross the threshold. As the English Court of Appeal observed in R (Kumar) vSecretary of State for Constitutional Affairs:5769 Under the new rule-based regime, however, it is sufficient that theprevious claims or applications were totally without merit, and that the litigantpersisted in making them. The requirement for "vexatiousness", or its modernequivalent, has gone.[59] However to that conclusion we would sound this caveat. As Lord Dysonobserved, the adoption of the word "merit" was perhaps unfortunate.58 The potentialbreadth of its meaning in the context of the s 167 test was not explored in thesubmissions in this case. Hence our judgment does not engage with the propositionthat might be advanced in another case that some proceedings are so manifestlyvexatious that they would satisfy the s 167 test notwithstanding that the Courtidentified some legal or factual basis on which they might nevertheless succeed.[60] In their submissions both parties employed synonyms for the word "totally",the Council referring to no prospects of success "whatsoever" and Mr Mawhinneyreferring to "completely devoid" of merit. We consider that the word "totally" is aptto convey both a qualitative and a quantitative dimension. As the present appealdemonstrates, a proceeding may combine multiple causes of action. Even if only onecause of action has merit, it cannot be said that the proceeding is totally without merit.55 Ministry of Justice Report, above n 27, at [292]–[293]. See [43] above.56 Genge v Visiting Justice Christchurch Men's Prison, above n 27, at [29]; and High Court judgment,above n 1, at [50].57 R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990, [2007] 1 WLR536.58 R (Grace) v Secretary of State for the Home Department, above n 38, at [19]. See [50] above.Hence in order for a proceeding to satisfy the s 167 threshold, it will be necessary thatall the causes of action pleaded should have been bound to fail.Applying the test[61] Mr Mawhinney's 90-page second amended notice of appeal and his applicationfor leave to adduce extensive additional evidence served to underscore his convictionthat, in considering the s 166 jurisdiction, a Judge should in effect entertain appealsagainst the judgments in the relevant proceedings.[62] The Council responded that such an approach would result in two absurdoutcomes:(a) The presiding Judge on an application under section 166 would haveto undertake the work of not less than two first-instance Judges, indetermining whether two or more proceedings were totally withoutmerit, by reference to the pleadings, evidence, and submissions inthose proceedings.(b) A respondent to an application under section 166 would effectivelyhave a 'second bite at the cherry'. The respondent would be able tore-litigate the merits of its position at the first-instance hearing, whichwould run wholly contrary to the doctrine of res judicata.[63] But Mr Mawhinney perceived that res judicata was no obstacle, submitting:[W]hilst the Judgments in the 3 proceedings relied upon by Hinton J are nowres judicata, they were erroneous, and Hinton J erred by relying onproceedings that were determined by incorrect decisions. One of the groundsfor the appeal is that erroneous decisions cannot qualify the proceedings inwhich they arose as totally without merit for the purposes of s 167 SeniorCourts Act [2016].[64] In our view Mr Mawhinney's argument misconceives the nature and rationaleof the s 166 jurisdiction. The correctness or otherwise of the judgments which are theculmination of the candidate proceedings is not the issue. The proper focus is whetherthe proceedings themselves were so lacking in merit that they were bound to fail.[65] However as Maurice Kay LJ observed in Grace, a Judge must be confidentthat the proceeding was truly bound to fail.59 Such a conclusion may be possible59 R (Grace) v Secretary of State for the Home Department, above n 38, at [15]. See [53] above.simply from a consideration of a finding in the judgment in a proceeding where, forexample, the basis of the finding is issue estoppel. However in other cases attainingsuch a state of confidence may necessitate careful consideration of the factual andlegal bases for the proceeding. The extent of the inquiry required to be undertakenwill be necessarily case-dependent.[66] Section 167 makes clear that it is the Judge determining the issue whether anorder should be made who is required to "consider" whether the proceedings are totallywithout merit. Although in all likelihood that Judge will carefully review thereasoning in the judgments given in the relevant proceedings, the question whether inany particular proceeding the threshold is established is for the consideration of theJudge contemplating making the order.Did the Judge err in interpreting and applying the test?[67] No issue was taken with the Judge's two step approach:60[115] In deciding an application under s 166, I consider there are two steps.Firstly, I must decide whether there are at least two proceedings that are orwere totally without merit. If that is so, secondly, I make a discretionaryjudgment on whether an order is appropriate. In so doing, I may consider howthose proceedings were conducted, and any wider circumstances that weighfor, or against, an order being made.[68] However Mr Mawhinney submitted that [52]–[53] of the High Courtjudgment61 disclosed an incorrect interpretation of the threshold test and revealed thatat the jurisdictional stage Hinton J erroneously took into account considerations whichwere previously relevant under the repealed s 88B. While the observations at [52]read as confined to the decision whether, once the threshold is established, a s 166order should be made, we agree that at [53] the Judge appears to contemplate thatvexatious considerations have application to the s 167 threshold itself.[69] Indeed that approach is explicit at [70] which discloses that the Judge's focusis not only on whether the proceeding had a hope of succeeding but also on the mannerin which Mr Mawhinney conducted himself in the proceedings.62 Similarly at [117],60 High Court judgment, above n 1.61 At [21] above.62 At [22] above.in the course of addressing whether the threshold requirement was met, the Judgereferred to the proceedings having exposed the Council to disproportionate levels ofinconvenience and expense.63[70] While such considerations will be relevant to the decision whether an ordershould be granted (addressed in the judgment at [115] and following), in our view theyare not informative on the question whether the proceedings were bound to fail.Consequently we consider that the Judge erred in her interpretation of the statutoryprovisions to the extent that previously relevant vexatious considerations wereimported into the threshold analysis rather than being reserved for the second step inthe exercise.[71] A further issue arises in the context of [70], the relevant part of which werestate:I will focus on whether the proceedings, on the presiding Judge's view, had ahope of succeeding, and the manner in which Mr Mawhinney conductedhimself in those proceedings.[72] As noted above, the determination of whether the threshold test is satisfied isthe task of the Judge hearing the s 166 application.64 It is not appropriate in effect todelegate that decision by simply adopting the assessments of the Judges in thecandidate proceedings. To the extent that the passage in [70] suggests otherwise, inits reference to the views of the Judges in the candidate proceedings, we do notendorse it.[73] As earlier noted,65 the Council refined its application by excluding from itsambit proceedings commenced by corporate entities to which Mr Mawhinney was nota party. While not expressing a definite conclusion, the Judge nevertheless discussedthe implications of s 167(5) in this way:66[64] I am uncertain if the same [that proceedings where Mr Mawhinney isacting as a trustee can be considered for purposes of s 167] applies toproceedings brought by the incorporated companies associated with and63 At [23] above.64 At [66] above.65 At [18] above.66 High Court judgment, above n 1 (footnote omitted).represented by Mr Mawhinney. Section 167(5) is in terms: "the proceedingsconcerned must be proceedings commenced or continued by the party to berestrained". Proceedings commenced by a party other than Mr Mawhinneywould appear not to count as a qualifying proceeding under s 167(2), even ifMr Mawhinney represented that party.[67] I would be somewhat sympathetic to an argument that the legislaturedid not intend to preclude a proceeding from qualifying only because thelitigant acted through companies, rather than in a personal capacity, especiallywhere he was effectively the only shareholder and director. A proceeding"commenced" in the name of a company would still in those circumstances bea proceeding commenced by Mr Mawhinney.[68] But, as this may amount to effectively lifting the corporate veil, suchan argument would require thorough submissions, and possibly evidence.Because I have not heard argument on it, I do not take the point further.I proceed on the basis that proceedings commenced by corporate entitieswhere Mr Mawhinney was not a named party do not qualify as being a"proceeding" under s 167.[74] This issue was not addressed on the appeal. Consequently this judgment doesnot engage with the proposition which has found favour in England that a party whohas issued claims or applications refers not only to the named party but also tosomeone who is not a named party but is nevertheless the "real" party who has issueda claim or made an application.67Was the subdivision consent litigation totally without merit?The proceeding[75] The context to this proceeding was described by Fogarty J in this way:68[78] The subject-matter of these proceedings is the subdivision of land intosmaller parcels with the intended consequence that residential dwellingswould be built. The roofs of the buildings and the sealed vehicular andpedestrian access ways interfere with what would otherwise be the naturalabsorption/flows of stormwater. They collect artificially the water, which thenflows in increasing volume and velocity to the lowest point, from which itescapes. This potentially adverse effect has always been one of the principalreasons for the control of subdivisions in New Zealand.[79] Stormwater run-off appears to be at the heart of the impasse betweenthe plaintiff and his predecessors and the council. Mr Mawhinney fears that67 See CFC 26 Ltd v Brown Shipley & Co Ltd [2017] EWHC 1594 (Ch), [2017] 1 WLR 4589 at [20];and Sartipy v Tigris Industries Inc [2019] EWCA Civ 225, [2019] 1 WLR 5892 at [32].68 Mawhinney v Waitakere City Council, above n 24.if he makes applications to the [Auckland Regional Council] he will be drawninto an extremely expensive exercise designed to address disposal ofstormwater over a much larger catchment. However, this is a fact of life inNew Zealand that developers confront and deal with every day. It does seemto me that Mr Mawhinney has been constantly looking for ways of enjoying aproperty right, misconceived as being nearly absolute, without beingentangled in the lengthy and costly processes of local government. However,like death and taxes, they are inevitable.[76] In 1999 as trustee of various family trusts Mr Mawhinney commenced a civilproceeding against the Council alleging breach of statutory duty, negligence andmisfeasance in public office. Four distinct subdivision applications concerning partsof the Waitakere land were addressed in the proceeding, namely:(a) the Consent order subdivision;(b) the Minor Household Unit (MHU) subdivision;(c) the Unit Title subdivision; and(d) the Lydiard subdivision.In respect of the last three Mr Mawhinney claimed that the Council had not processedsubdivision consent applications for any good reason. Principally this was a challengeto the Council's invocation of s 91 of the RMA as the reason for not processing theMHU and Unit Title subdivisions, the Council being of the view that it was necessaryfor resource consents to be first obtained from the Auckland Regional Council.[77] The remedies pursued comprised judicial review (orders were sought in thenature of mandamus and certiorari) and damages. An order for mandamus was soughtin relation to grants of rights of way. The Court was requested to review the Council'sdealings in relation to the MHU, Unit Title and Lydiard subdivisions. Damages weresought for extra costs and loss of profits totalling $6,695,656.71 together with interestof $2,307,631.24.[78] The Council applied to strike out the proceeding on the grounds the claimswere untenable or otherwise oppressive and an abuse of process. It contended thatthere was no common law liability for damages for breach of statutory duty (breachbeing denied) and on the facts no common law duty of care could arise (negligencebeing denied). It submitted that it was an abuse of process for Mr Mawhinney tocontinue to advance the interpretation of s 91 previously rejected in the Kitewahojudgment.69 There was no basis for any claim for misfeasance in public office whenthe Council's reliance on s 91 had been upheld by the High Court.The High Court judgment[79] Fogarty J observed that Mr Mawhinney, who was appearing for himself,plainly did not grasp the principle of estoppel underpinning abuse of process,70commenting:[18] It was difficult to move Mr Mawhinney out of the detail of his factualcontentions, and to confront the findings of the Environment Court and theHigh Court in respect of these contentions. I mention this difficulty becauseI do not consider it relevant to get into a lot of the factual detail. In the courseof the hearing it became apparent several times that I was hearing an argumentpreviously argued before another Judge and decided against Mr Mawhinney.He was giving that and other similar arguments another run to see whetheranother Judge would find sympathy with them.[80] The Judge stated that having heard two days of argument he was satisfied thatMr Mawhinney was seeking to re-argue the interpretation of s 91 rejected in theKitewaho judgment. In our view that conclusion, that this aspect of the proceedingwas an attempt to relitigate Mr Mawhinney's s 91 thesis, was plainly correct.[81] Clothing the contention with an allegation of malice by the Council could notovercome its abusive nature. As the Judge said:[33] Essentially, this argument is new only in its formulation.Mr Mawhinney has been of the view, for some time, that the Council has beengiving him the runaround. He thinks this is because the Council takes theview that it had an understanding with him that the consent order granting thefee simple title subdivision back in 1995 was to be the only subdivision,pending further development of the council's proposed plan. It was withinMr Mawhinney's ability to develop the malice argument that he is runningnow-back when he was challenging the use of s 91.69 See Kitewaho judgment, above n 11.70 Mawhinney v Waitakere City Council, above n 24, at [16].[82] Similarly, for the reasons given in the judgment,71 the Judge's conclusion thatthere was no tenable argument for judicial review in the nature of mandamus orcertiorari was plainly correct. However by their nature the causes of action for breachof statutory duty and in negligence have at least the potential to fall into the grey areaidentified by Underhill LJ between not arguable and totally without merit.72[83] Speaking of the former, in Gorringe v Calderdale Metropolitan BoroughCouncil Lord Steyn said that the central question is whether from the provisions andstructure of the statute an intention can be gathered to create a private law remedy.73[84] However we are satisfied that there was no tenable argument available toMr Mawhinney for breach of a private right conferred by the RMA for the reasonsstated by Fogarty J, namely: 74(a) The comprehensive character of the processes and remedies within theRMA precludes the need for an additional remedy by way of commonlaw damages.(b) There was no policy vacuum supporting such a need.(c) The duties which the RMA casts on territorial authorities are coupledwith discretions. While the duties are not easily breached, the normalremedy for a failure to exercise them is the statutory enforcement order.[85] In regards to the negligence issue, this Court found in the case of Morrison vUpper Hutt City Council that there were three policy reasons for denying a private lawduty of care in the context of the Town and Country Planning Act 1977: first, questionsof interpretation are not susceptible to the application of the negligence standard;second, the plaintiff had a right of appeal; and third, recognising a duty of care herecould create a floodgates problem.75 The Judge's conclusion that Mr Mawhinney's71 At [44].72 R (Wasif) v Secretary of State for the Home Department, above n 38, at [15]. See [55] above.73 Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057at [3].74 Mawhinney v Waitakere City Council, above n 24, at [46]–[49].75 Morrison v Upper Hutt City Council [1998] 2 NZLR 331 (CA) at 337–338.claim in negligence fell squarely within that policy framework was plainly correct,justifying his conclusion that there was no prospect of a duty of care beingrecognised.76Our assessment[86] Because the Judge was exercising the strike-out jurisdiction he understandablyand appropriately applied the well-established test in Attorney-General v Prince andGardner of whether the causes of action were so clearly untenable that they could notpossibly succeed.77 His judgment concluded in this way:[81] I am quite satisfied that there was no prospect of the plaintiffsucceeding in any of the causes of action. On analysis, none of his argumentsare tenable.[87] While we doubt that there is any difference in practice between the Prince testand the s 167 threshold, we are satisfied that all the causes of action in the subdivisionconsent litigation were bound to fail. Consequently the proceeding in its entirety wastotally without merit.Was the boundary adjustment litigation totally without merit?The proceeding[88] On 21 June 2005 the Council declined Mr Mawhinney's request fora certificate of compliance for a number of proposed boundary adjustments in relationto several titles for the Waitakere land. The object was to increase the width of vehicleaccess to the land.[89] On the appeal by Mr Mawhinney and Glorit Subdivision Ltd to theEnvironment Court the Council contended that, as it had no jurisdiction to issue acertificate of compliance, the appeal was frivolous or vexatious and should be struckout. The Council also contended that it would be an abuse of process to allow theappeal to proceed because Mr Mawhinney was relying on an argument that hadpreviously been rejected by the Environment Court, the High Court and this Court.76 Mawhinney v Waitakere City Council, above n 24, at [56].77 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.[90] Judge Sheppard struck out the appeal stating:78[131] There are two grounds of the appeal. Of the first, the commonarea/complete site ground, I have found that it is so clearly untenable that itdiscloses no reasonable case and cannot possibly succeed. Of the secondground, the series of boundary changes ground, I have found that it would bean abuse of the process of the Court to allow that ground to be taken further.[91] Mr Mawhinney and Glorit Subdivision Ltd applied for a rehearing under s 294of the RMA. That section permits a rehearing if new and important evidence hasbecome available or if there has been a change of circumstances that might haveaffected the decision. Judge Sheppard ruled there were no grounds for a rehearing.79[92] Mr Mawhinney and Glorit Subdivision Ltd appealed both the strike-out andrehearing decisions to the High Court on questions of law under s 299 of the RMA.The appeals were dismissed in the judgment of Venning J in Mawhinney v WaitakereCity Council delivered on 19 December 2007.80 Because Hinton J was under theimpression that the appeal to the High Court had been abandoned, the judgment underappeal assessed the merits of the boundary adjustment litigation solely by reference tothe Environment Court decision and did not address the judgment of Venning J.However it is the Venning J's judgment which is our focus.The High Court judgment[93] The application for the certificate of compliance was made on the basis thatthe proposed boundary adjustments complied with r 2.1(a) of the Council's partlyoperative proposed plan. Under this rule subdivisions comprising boundaryadjustments where no existing site was adjusted in site area by more than 10 per centwere permitted activities. As the Judge explained at an early point in the judgment,that argument was not sustainable by reference to the individual sites:[11] The short answer to this appeal is that at least some of the boundaryadjustments that Mr Mawhinney applied for exceeded 10 percent and requireda resource consent so that the Council had no authority to grant a certificateof compliance for the particular proposal. In the circumstances the Councilwas right to decline the application for a certificate of compliance and the78 Mawhinney v Waitakere District Council, above n 23.79 Mawhinney v Waitakere City Council EnvC Auckland A020/2006, 23 February 2006.80 Mawhinney v Waitakere City Council HC Auckland CIV-2006-485-627, 19 December 2007.Environment Court was justified in striking out the appeal as disclosing noreasonable cause of action and as an abuse of process. [94] Indeed the fact that some individual sites exceeded the 10 per cent limit wasacknowledged by Mr Mawhinney:[12] Mr Mawhinney stated in the application for the certificate ofcompliance that the proposal met the requirement that no existing site wasadjusted in site area by more than 10 percent. However, on Mr Mawhinney'sown case on this appeal there are two lots, 323 and 324, which are adjusted insize by more than 10 percent. Mr Mawhinney calculated the changes in sizeas an 18.36% increase in the case of lot 323 and a 29.9% decrease for lot 324.Mr Mawhinney conceded in his written submissions in support of this appeal,after setting out the adjustments to lots 323 and 324:It is accepted that as the variation in these lots exceeds 10%reliance cannot be placed on Rule 2.1(a) unless the completesite argument is to prevail.On the face of Mr Mawhinney's own documentation and submissions theproposal does not comply with rule 2.1(a) (subject to his "complete site"argument, to which I will shortly refer).[95] However Mr Mawhinney further argued that, because the various parcels ofland comprised a single allotment and thereby a single site, the boundary adjustmentsresulted in an adjustment in the site area of only 7.5 per cent, and hence within the10 per cent permitted by r 2.1(a).[96] Mr Mawhinney's argument was constructed as follows:(a) The definition of "site" for the purposes of r 2.1(a) includes anallotment.(b) Section 218(2) of the RMA provides that an allotment is a "continuousarea" of a parcel of land.(c) Section 218(3) provides an extension to that term by stating that anallotment shall be deemed to be a continuous area of landnotwithstanding that part of it is physically separated from any otherpart by a road or in any other manner whatsoever.(d) The reference to "in any other manner whatsoever" extended to includea separation of two parcels of land by a cadastral boundary.[97] The Environment Court rejected Mr Mawhinney's contention as untenable,ruling the phrase "in any other manner whatsoever" is confined to a physicalseparation of the kind that occurs with a separation by a road. Venning J shared thatview, stating:[37] It is a matter of interpretation of the relevant provisions of the planand the Act. I agree with Judge Sheppard's interpretation of the provisions.The section must be interpreted in its context. In my view the reference to "inany other manner" is plainly a reference to a physical separation because itfollows the earlier reference in the section to the land being "physicallyseparated" from any other part by a road. The focus is on a physicalseparation, not separation by a cadastral boundary. The separation by "anyother manner" is by way of physical separation.[98] He concluded:[39] The appellant's contention is simply untenable. The rural residentialparcel and undivided share in a common parcel do not, together make anallotment. As they are not an allotment they cannot together constitute a sitefor the purposes of the plan and particularly rule 2.1(a).[99] Having dismissed the appeal the Judge made a timetable for writtensubmissions on costs. Mr Mawhinney failed to provided costs submissions. In ajudgment dated 5 March 2008 Venning J awarded costs to the Council on a 2B basiswith an uplift of 50 per cent on scale costs for the reason that Mr Mawhinney hadcontributed unnecessarily to the time and expense of the proceedings by pursuingarguments that lacked merit, stating:81[5] The appellant Mr Mawhinney is no stranger to the processes in theEnvironment Court nor to appeals to this Court. In the present case he soughtto appeal the substantive decision of the Environment Court and also theEnvironment Court's decision declining an application for rehearing.As noted in the judgment there was a short answer to Mr Mawhinney's appeal.As the Court concluded on the facts conceded by Mr Mawhinney the appealsimply could not succeed. Despite Mr Mawhinney's attempt to reformulatequestions of law the application for rehearing was a waste of the Court's timeand the respondent's costs. I also note that during the course of the appeal theCourt observed that Mr Mawhinney's position on certain issues wasuntenable.81 Mawhinney v Waitakere City Council HC Auckland CIV-2006-485-627, 5 March 2008.Our assessment[100] We have recorded the detail of Mr Mawhinney's argument and the bases for itsrejection by Venning J for several reasons. First, the High Court judgment was notconsidered by Hinton J and it is appropriate therefore that we assess its significance.[101] Secondly, Mr Mawhinney's alternative argument involved an issue of statutoryinterpretation. One might not unreasonably expect that where the contest involves theinterpretation of a statute in most cases the point would be at least arguable. Howeverfrom our analysis of the argument we are satisfied that Mr Mawhinney's alternativesingle site contention was not arguable.[102] Thirdly in the costs judgment Venning J made reference to his observationsduring the hearing to the effect that Mr Mawhinney's position "on certain issues" wasuntenable. We do not read that comment as suggesting that either of Mr Mawhinney'sprimary arguments were tenable. It simply records the fact that such interventionswere made in the course of argument.[103] In our view both the arguments Mr Mawhinney advanced before Venning Jwere bound to fail. Hence that proceeding satisfied the s 167(2) criterion.Was the compliance certificate litigation totally without merit?The proceeding[104] In February 2006 Mr Mawhinney together with a number of his companies82lodged with the Council an application for a certificate of compliance (under s 139 ofthe RMA) and subdivision consents (under s 88) in respect of the Waitakere land.The certificate of compliance was sought in relation to boundary adjustments shownon one plan and the construction of 77 sheds shown on a different plan. Thesubdivision consents related to a proposed cross-lease of the 77 proposed sheds and aspecified house on the basis that the proposed cross-lease was either a controlled82 Glorit Subdivisions Ltd, London and Greenwich Trading Co Ltd, Perceptus Ltd and SwansonHeights Ltd.activity under r 2.1(a) of the General Subdivision Rules or a restricted discretionaryactivity under r 7.2(c) of the Foothills Subdivision Rules.[105] The Council rejected the application, primarily on the grounds that it wasincomplete. In its letter of 28 February 2006 the Council said:3.1 The status of the resource consent application is non complying and afull assessment of all relevant effects is required, including relevantland use effects arising as a result of the proposed lease subdivisions.This includes the additional Human Environment and subdivisionrules that are triggered under the partially operative Waitakere CityDistrict Plan, together with relevant resource consents that arerequired from the Auckland Regional Council under s 15 of the Act:for further information we refer you to the decision of Randerson J inWaitakere City Council v Kitewaho Bush Reserve Co Ltd & Ors[[2005] 1 NZLR 208].3.2 The applicant is not entitled to limit its application to generalsubdivision rule 2.2 or Foothills subdivision rule 7.2(c). This isconfirmed by the obiter comments of Randerson J in Waitakere CityCouncil v Kitewaho Bush Reserve Co Ltd & Ors.[106] The applicants' objection was dismissed by a hearings committee which heldthe applications for subdivision consent were deficient because they did not providean adequate assessment of environmental effects. In particular the committee foundthat the application could not be limited to r 2.2 of the General Subdivision Rules orr 7.2(c) of the Foothills Environment Subdivision Rules. The committee relied on theKitewaho judgment in coming to its conclusions.83[107] On the application of the Council the applicants' appeal to the EnvironmentCourt was struck out on the grounds of abuse of process.84 Other appeals byMr Mawhinney were struck out at the same time. With reference to those variousappeals Heath J explained:85[13] The common theme underlying the Environment Court's decisions tostrike out the appeals is that a single application, seeking both certificates ofcompliance and resource consents, was a "contrivance" to avoid the need tocomply with the subdivision provisions of the Act. The Court considered that,in cases where the certificates and consents are sought for the ultimate purposeof a subdivision, they ought to be assessed for compliance "holistically",rather than in isolation from each other.83 Kitewaho judgment, above n 11.84 Perceptus Ltd v Waitakere City Council, above n 25.85 Mawhinney v Waitakere City Council, above n 26.The High Court judgment[108] Mr Mawhinney, who was substituted for the corporate applicants as appellant,appealed to the High Court under s 299 raising 12 grounds of appeal said to involvequestions of law. Heath J did not engage with all those questions, explaining:[16] It is unnecessary for me to address all 12 proposed grounds because,in my view, the critical issue is whether the Environment Court was right tostrike out the appeals for abuse of process. The answer to that question turnson whether the methodology employed by Mr Mawhinney to obtain authorityto subdivide the land was a device designed to subvert the subdivisionrequirements of the Act and the relevant operative district plan.[17] Early in the appeal hearing, I raised with Mr Mawhinney whether, ifhe were to lose on that point, the appeal would inevitably be dismissed.I indicated that I agreed with and endorsed Randerson J's reasoning inWaitakere City Council v Kitewaho Bush Reserve Co Ltd.[18] Although Mr Mawhinney submitted that application of the Kitewahoprinciple was not fatal to his appeal, I remained of the view that it was. Duringthe course of the appeal, without formally doing so, I indicated that I proposedto rule against Mr Mawhinney on this issue and to dismiss the appeal. I nowexplain my reasons for reaching that view.[109] The Judge proceeded to address the relevant provisions of the RMA concerningsubdivision consent and recited several paragraphs from the Kitewaho judgmentbefore stating:[31] As is apparent, the human mind behind the Kitewaho appeal wasMr Mawhinney. Points similar to the one in issue have also been raised byhim and dismissed in other cases [32] While Mr Mawhinney is open in saying that he has endeavoured tomodify his applications to take account of what has been said in earlierjudgments, the evolution of the various applications is no more thana variation on a single theme. The new applications do not addressa fundamental flaw in the procedure that Mr Mawhinney has adopted. Thatflaw arises from his need to obtain resource consents to carry out the whole ofthe proposed subdivision and to comply with all relevant rules in the relevantoperative plan in doing so.[110] Because the application had attempted to subvert the subdivision requirementsof the RMA and the relevant operative district plan, Heath J had no doubt that theEnvironment Court Judge was right to hold that the appeals amounted to an abuse ofprocess. Hence the appeal was dismissed without further inquiry into the variouspoints raised by Mr Mawhinney.86The leave judgments[111] Mr Mawhinney then made an oral application for leave to appeal to this Court.While Heath J provisionally favoured a grant of leave on the basis that it might havebeen desirable to resolve finally the fundamental issue to which Randerson J referredin Kitewaho, ultimately the Judge concluded that "the answer to the question raised isso clear that leave is probably undesirable".87 Nevertheless the Judge convened afurther hearing to afford Mr Mawhinney an opportunity to make additionalsubmissions in support of leave.[112] Following a hearing on 19 February 2009 Heath J delivered a further judgmentdismissing Mr Mawhinney's application for leave to appeal.88 He also awarded costsin favour of the Council on a 2B basis and incorporated a 50 per cent uplift, stating:[26] I am persuaded that the Council has been put to unnecessary costs, notonly by arguments which have been raised and determined earlier, but also bythe prolix and non-focussed way in which submissions were made in advanceof the appeal. That caused the Council to instruct its lawyers to preparethoroughly on the basis of a number of issues raised which had no prospect ofsuccess.[113] Mr Mawhinney then applied to this Court for special leave to appeal. In itsjudgment declining the application the Court stated that the answers toMr Mawhinney's contentions were plain, did not warrant further argument and soughtonly to expand upon his own idiosyncratic interpretation of the requirements of theRMA.89 The Court endorsed comments in the High Court judgment in Kitewaho as acorrect statement of the subdivision regime under the RMA.90 It confirmed thatconsent applications are not amenable to compartmentalisation but that the RMA is86 At [39]–[40].87 At [44].88 Mawhinney v Waitakere City Council HC Auckland CIV-2008-486-1119, 19 February 2009.89 Mawhinney v Waitakere City Council [2009] NZCA 335 at [23].90 At [24]–[25].directed at the management of natural resources in a comprehensive and holistic way.91The Court concluded:[30] The shared interpretation of the relevant provisions of the RMAfavoured by the Judges in the High Court is sound and in accordance with theAct's scheme and purpose. Mr Mawhinney has not demonstrated that there isany general or public importance in his appeal. His application does not raisearguable points of law. He is using the appellate procedure as a means offurthering his own interests, and as a "backdoor means of expanding [his]argument into a wider challenge": see Downer Construction (NZ) Ltd vSilverfield Developments Ltd [2007] NZCA 355 at [39].Our assessment[114] In our view the essence of the compliance certificate litigation was an attemptto re-run the propositions rejected in Kitewaho and also by Fogarty J in the subdivisionconsent litigation. Hence it was inevitable that it could not succeed. We consider thatthe compliance certificate litigation was also totally without merit.Did the Judge err in granting a restraining order?[115] As earlier noted,92 no challenge is made to the Judge's two step approach, norto the view that the discretion whether to make a s 166 order may include considerationof how the qualifying proceedings were conducted and any wider circumstances thatweigh for, or against, an order being made. In that connection we note the observationin Sartipy v Tigris Industries Inc that a proceeding need not be abusive, made in badfaith, or supported by false evidence or documents in order to be totally without merit,but if it is, that will reinforce the case for a civil restraint order.93[116] Mr Mawhinney took issue with a number of the factors to which the Judgereferred in considering whether to make a s 166 order. He focused first on thefollowing observations:94[122] In spite of the number of his proceedings that have been struck out,and the numerous costs awards made against him, Mr Mawhinney pays nomind to forcing the Council to incur further costs. He has largely failed to payany costs orders and has been rendered bankrupt twice as a consequence.91 At [25], citing Bayley v Manukau City Council [1999] 1 NZLR 568 (CA); and King v AucklandCity Council [2000] NZRMA 145 (HC).92 At [67] above.93 Sartipy v Tigris Industries Inc, above n 67, at [27].94 High Court judgment, above n 1.[117] Mr Mawhinney sought to lay the blame for costs at the respondent's door,submitting that much of the litigation would not have been instigated if the consentauthority had observed the RMA processes within the statutory timeframes.He attributed his failure to pay costs orders to the fact that the funds to do so wouldhave derived from the sale of land which could not occur without the subdivisionconsents he had sought. On the issue of his bankruptcy he observed that therespondent was the only petitioning creditor.[118] Mr Mawhinney also took issue with the Judge's observations that:[123] He continually brings proceedings about largely the same matters.He resorts to litigation "at the drop of a hat". He pays little respect to priordecisions and continues to make the same arguments over and over,presumably in the hope of finding a Judge who is receptive to them.[119] Mr Mawhinney responded that applications he had filed were not at the dropof a hat but were an attempt to get matters processed by the consent authority inaccordance with the procedures and time periods specified in the RMA. He pointedout that it has been his practice to lodge an objection rather than an appeal if that courseis available, which he characterised as being the opposite of rushing to litigation at thedrop of a hat. He contended that litigation, of which complaint had been made, hadbeen used sparingly and only after extended omissions by the respondent.[120] With reference to the criticism that he brought proceedings largely about thesame matters, he contended that is a function of the RMA, praying in aid to theobservation of Heath J that Mr Mawhinney and associated parties had modified andevolved applications and requests to take account of what had been said in priorjudgments.95[121] In conclusion he submitted that the respondent's omission to processapplications was not a single isolated incident but a pattern of multiple omissions.If the respondent had complied with the processes and time periods specified in theRMA, the remedies sought through litigation would not have been required.95 Mawhinney v Waitakere City Council, above n 26, at [32]. See [109] above.Mr Mawhinney submitted that Hinton J had erred by not taking those considerationsinto account in the decision to grant an order.[122] While sincere in his convictions, it is apparent that Mr Mawhinney is unableto recognise the vexatious nature of his pursuit of litigation with the respondent.We agree with the Judge's observations that Mr Mawhinney conducts his proceedingswith many of the hallmarks of what would have been considered a vexatious claimunder the old regime.96 The Judge was amply justified in concluding that a s 166 orderwas appropriate.Were there exceptional circumstances warranting an order of five yearsduration?[123] As earlier noted, the Council's original application was silent on the durationof the order sought.97 Nor did the application make reference to matters said toconstitute exceptional circumstances. The issue as to duration was clarified by theterms of the amended application.98 However it is not apparent that the Council setout the reasons why an order of five years duration was claimed to be justified. Indeed,as the judgment records, the Council did not even address the Judge on whether therewere exceptional circumstances which justified the making of an order of thatduration.99[124] Nevertheless the Judge proceeded to consider whether an order in excess ofthree years was justified. We set out her reasons in full:[158] In the Report of the Ministry of Justice to the Justice and ElectoralCommittee, referred to above, the Ministry noted submissions that a Judgeshould be able to impose an order of a length they saw fit. However, theMinistry's advice was that s 168(2) was intentionally drafted so as not to giveJudges a "blank cheque", as it were. The normal limit of up to three years wasset, being sensitive to the important right to access justice contained in theNew Zealand Bill of Rights Act.[159] Mindful of that, I have decided there are exceptional circumstanceshere. Mr Mawhinney has been litigating with the Council over this one issuefor 25 years. Even in terms of the "qualifying proceedings", these go back96 High Court judgment above n 1, at [124].97 At [16] above.98 At [18] above.99 High Court judgment, above n 1, at [157].13 years now. Coupled with all of the other factors, these are exceptionalcircumstances. A five-year restriction is minor by comparison.(Footnotes omitted.)[125] We have concerns about this conclusion on two fronts. First, from a processperspective, a question plainly arises as to fairness vis à vis Mr Mawhinney. If, asappears to be the case, the matters said to constitute exceptional circumstances werenever specified, and given that the Council presented no submissions on the issue, howwas Mr Mawhinney to know the matters to which he needed to respond? Perhapsunsurprisingly in the circumstances there was no mention by the Judge of anysubmissions from Mr Mawhinney on the issue.[126] Secondly the Judge did not descend to any particularity with reference to thematters which constituted exceptional circumstances. In addition to the threequalifying proceedings, she referred to litigation extending back for 25 years.However as she explained at an early part of the judgment:[22] The Council has provided me with a schedule of proceedingsinvolving Mr Mawhinney and the various entities, which I annex to thisjudgment as Schedule B. I have not reviewed all of the proceedings listed,and the table does not form a part of my reasons. I annex it to provide a broadoverview of the history of this dispute. I do not, however, adopt thedescriptions of the proceedings, given I have not studied all of the casesclosely. I will discuss some of these proceedings in more detail below.Those cases which were discussed in more detail were the three candidate proceedings.[127] However it seems obvious from the penultimate sentence in [159] that thosethree proceedings on their own were not considered sufficient to amount to exceptionalcircumstances, but only when "coupled with all of the other factors". In our view itwas necessary for the matters relied on as constituting exceptional circumstanceswarranting the maximum period of restraint to have been identified with greaterparticularity than by the compendious description in [159].[128] For these two reasons, we consider the five-year order should be set aside andan order of three years substituted.Were the terms of the order deficient?[129] The order made by Hinton J was in the following terms:Peter William Mawhinney, in any capacity, including but not limited to asa trustee of any trust, is restrained from commencing or continuing any civilproceeding (or matter arising out of a civil proceeding) that relates in any wayto the parcels of land contained in the identifiers set out in Schedule A to thisjudgment, for a period of five years.[130] Schedule A comprised three columns recording the legal description of theparcels of land, the addresses of the land and the area in hectares. The parcels of landwere described by reference to the lot number on a deposited plan.[131] Mr Mawhinney contended that the judgment was defective and, in his words,lacking in "utility" because the legal descriptions of the parcels of land were not"identifiers" within the meaning of the Land Transfer Act 2017. He drew attention tothe definition in the Act of "unique identifier" as meaning a combination of letters ornumbers or both by which a record of title or an instrument is identified.[132] Noting that the "identifier" terminology derived from the respondent'sapplication, Mr Mawhinney submitted that the respondent had obtained what it soughtin that the sealed order of the Court included the annexure attached to the application.However the legal descriptions were not identifiers and hence the restraining orderand the judgment from which it arose should be set aside.[133] On this issue we accept the respondent's submission that Mr Mawhinney hasadopted an overly technical analysis of the meaning of "identifier" in an attempt toconstrain the scope of the Court's order. The order is sufficiently clear about the landto which it relates. Nothing turns on whether or not the identification of the parcels ofland in the appendix are identifiers within the meaning of the Land Transfer Act.Result[134] The application to adduce further evidence on appeal is declined.[135] The appeal is allowed to the extent that the five-year order of the High Courtis set aside and an order of three years is substituted.[136] The appeal is otherwise dismissed. The remaining terms of the order remainunchanged.[137] Mr Mawhinney being self-represented, there is no order for costs.Solicitors:Anthony Harper, Auckland for Respondent