MAWHINNEY AND ANOR V WAITAKERE CITY COUNCIL HC AK CIV-2006-485-627

MAWHINNEY AND ANOR V WAITAKERE CITY COUNCIL HC AK CIV-2006-485-627 10 July 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2006-485-627UNDER the Resource Management Act 1991 BETWEEN PETER WILLIAM MAWHINNEY AND GLORIT SUBDIVISION LIMITED Applicants AND WAITAKERE CITY COUNCIL Respondent Hearing: 10 July 2006 Appearances: PW Mawhinney in Person GR Milner-White for Respondent Judgment: 10 July 2006JUDGMENT (NO. 1) OF ASHER JSolicitors: Peter W Mawhinney, PO Box 95 157 Swanson Kensington Swan, Private Bag 92101 Auckland[1] There is set down for hearing in the Court today an application by Mr Mawhinney and Glorit Subdivision Limited for leave to appeal out of time a decision of the Environment Court delivered on 7 December 2005. Mr Mawhinney has orally applied this afternoon for an adjournment of the hearing.Background[2] The application for leave was set down for hearing on 18 May 2006. On 5 July 2006 Mr Mawhinney applied to this Court seeking an adjournment of the hearing. His reason was that he had become aware the day before that he needed to file a synopsis of argument three working days before the hearing. He stated that he would not be able to meet the deadline which, by 5 July 2006, had already passed. [3] The respondent Council opposed the application. The matter came before Cooper J on 6 July 2006 and he declined the adjournment application. He noted:A party's own transgressions on a matter such as this are not a proper basis for an adjournment. Mr Mawhinney should file and serve his submissions as soon as he is able to. The application for adjournment is declined.Mr Mawhinney ultimately filed his submissions in the late afternoon of Friday, 7 July 2006. The respondent Council filed and served its submissions between 9:00 – 10:00 am this morning. [4] Mr Mawhinney's present adjournment application is based on the fact that he has not had adequate time to read and assimilate the Council's submissions and to prepare an appropriate reply. He puts forward two primary grounds for the adjournment: a) That he needs a fully opportunity to make his case and he has not got that opportunity; and b) In general terms there would be an injustice if there was no adjournment as he has only had several hours in which to prepare his response.[5] In particular, he has submitted that he now realises, having received the Council's submissions, the relevance of explaining the reason for the late filing of the appeal. In addition to preparing fuller submissions he wishes to be able to file an affidavit explaining that it was inadvertence which led to the delay, and an incorrect appreciation of the affect of his earlier application for a rehearing. He has submitted orally that he would wish to say that he thought that that application for a rehearing meant that any obligation to appeal the main judgment was postponed pending the outcome of that rehearing application. He now acknowledges that that was an incorrect understanding of the law on his part. [6] Mr Milner-White for the Council opposes the adjournment. He points out that this is an appeal against a strike out decision on a matter that needs to be progressed. He relies on the earlier refusal to adjourn on the part of Cooper J. He has submitted that the appeal could still proceed today. He does not intend going into the merits of the case, which are complex. He is prepared to accept that Mr Mawhinney could, if he wished, give evidence in Court this afternoon as to the reasons for the late filing of the appeal.Decision[7] I am satisfied that the reason for Mr Mawhinney's present dilemma is the late filing of his original submissions last week. If he had filed his submissions on time he would have received the Council's submissions before the weekend. There is a limit to the degree of indulgence that can be given to a party, simply because that party is representing himself or herself and makes procedural errors. It seems that Mr Mawhinney is not without Court experience and he must in the end take the burden of the failure to file submissions in time. [8] I do not consider that there will be serious prejudice to Mr Mawhinney if the matter proceeds today. This is because he is able to give evidence himself of the reasons for his delay. He has not argued that he is unable to do so and the issue is straightforward and does not require any extensive preparation. I have offered him a short adjournment if he needs that time.[9] In the circumstances, I do not consider it to be in the interests of justice to grant the adjournment application. The application is declined... Asher J