THI LAN ANH TRAN TRADING AS HANOI VIETNAM CAFÉ v CITY RAIL LINK LIMITED [2020] NZCA 174

THI LAN ANH TRAN TRADING AS HANOI VIETNAM CAFÉ v CITY RAIL LINK LIMITED[2020] NZCA 174 [20 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA614/2019[2020] NZCA 174BETWEEN THI LAN ANH TRAN TRADING ASHANOI VIETNAM CAFÉApplicantAND CITY RAIL LINK LIMITEDRespondentCourt: Courtney and Goddard JJCounsel: Applicant in personJ A Gregory and T M Crawford for RespondentJudgment:(On the papers)20 May 2020 at 3.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay the respondent costs of $956.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)The application for leave to appeal[1] The applicant seeks leave to appeal to this Court from a decision ofthe High Court,1 which dismissed her appeal from a decision of the EnvironmentCourt.21 Thi Lan Anh Tran v City Rail Link Ltd [2019] NZHC 2739 [High Court judgment].2 Hanoi Vietnam Café v City Rail Link Ltd [2019] NZEnvC 74 [Environment Court judgment].[2] The proceedings in the Courts below related to an aspect of the Auckland CityRail Link Project (CRL Project). The CRL Project is a major infrastructure projectcurrently being undertaken in Auckland. It is authorised in the Auckland Unitary Planby six related designations under the Resource Management Act 1991 (RMA). Thosedesignations (each of which relate to a different part or aspect of the CRL Project)were confirmed by the Environment Court in November 2015. Designation 4 providesfor the Karangahape Road Station.[3] On 30 April 2018 City Rail Link Ltd (CRL Ltd), the entity which currently hasresponsibility for the CRL Project, issued a decision making certain alterations toDesignation 4 (the Alteration).[4] The applicant operates a café on Pitt Street known as the "Hanoi Village Café".Her business is in the area covered by Designation 4. The applicant did not opposethe original making of Designation 4. But she did oppose the alterations toDesignation 4 that were incorporated in the Alteration.[5] The applicant challenged CRL Ltd's decision to make the Alteration inthe Environment Court. That Court dismissed her appeal and confirmed the Alteration(with certain modifications, the origins of which are explained in the High Courtjudgment). The applicant appealed to the High Court. She represented herself beforethe High Court. On 25 October 2019 Katz J delivered a careful and thorough judgmentin which she sought to identify and address the key issues raised in the applicant'ssubmissions.3[6] The applicant's application for leave to appeal to this Court is 22 pages long,with another 20 pages of annexures. It alleges 22 errors were made by the High Courtin its judgment. In her application for leave to appeal to this Court the applicant saysthat the judgment she seeks is:4(a) to request the respondent to pay compensation for the effects, damageto our business due to the requiring authority actions failed to meetthe requirements of RMA 1991 and CRL designation 1714 conditionsdated 10 November 2015 in relation to the NoR dated 4 May 2017.3 High Court judgment, above n 1, at [30].4 Applicant's application for leave to appeal at [43].(b) The High Court shall refund the security deposit of $740 I paid to theHigh Court[7] The applicant filed three sets of submissions in support of her application, each10 pages in length: a total of 30 pages in all. The submissions were accompanied by16 appendices. The material she filed substantially exceeds the 10-page limit set byr 23 of the Court of Appeal (Civil) Rules 2005 for submissions on an application forleave to appeal.[8] The application is opposed by CRL Ltd, which submits that the application:(a) is completely unfounded;(b) is vexatious;(c) raises no matters of general or public importance;(d) continues to raise matters beyond the jurisdiction of any of the previousdecision-makers when considering a variation to a designation underthe RMA; and(e) raises issues that, where comprehendible, have been thoroughlytraversed by the lower Courts.The test for leave to appeal[9] The applicant seeks leave to appeal to this Court under s 308(1) of the RMA,which provides:Subpart 8 of Part 6 of the Criminal Procedure Act 2011 applies as far asapplicable with the necessary modifications to a decision of the High Courtunder section 299 as if the decision had been made under section 300 of thatAct.[10] Under sub-pt 8 of pt 6 of the Criminal Procedure Act 2011, the Court of Appealmust not give leave for a second appeal unless satisfied that:55 Section 303(2).(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unlessthe appeal is heard.[11] An appeal to the High Court from a decision of the Environment Courtis available only on questions of law.6 It follows that the first limb of the test set outabove will be satisfied only if the appeal involves a question of law of general or publicimportance.Decision[12] We have reviewed the extensive material filed by the applicant. We do notconsider that this material identifies any questions of law capable of serious argument.The majority of the issues raised are not questions of law. To the extent thatthe application raises issues of law, they are not seriously arguable.[13] The proposed appeal would not involve any matters of general or publicimportance. The issues raised have no wider significance beyond the specificAlteration about which the applicant has concerns.[14] None of the matters raised by the applicant suggests that there may have beena miscarriage of justice in the High Court.[15] Moreover the relief the applicant seeks on appeal — compensation for lossessuffered by her business — is not relief that could have been awarded inthe Environment Court. It was not therefore available on appeal in the High Court,and would not be available on a second appeal to this Court. The decisions bythe Courts below not to award compensation cannot amount to an error of law ora miscarriage of justice, in circumstances where those Courts had no power to awardcompensation.[16] In these circumstances it is clear that leave to appeal to this Court should bedeclined. We do not propose to analyse in detail the 22 errors alleged by the applicant.The applicant has already had the benefit of careful and thorough judgments delivered6 Resource Management Act 1991, s 299.by the Environment Court and the High Court. A leave filter for second appealsreflects the public interest in finality, absent a good reason to entertain a second appeal.The leave filter is also intended to ensure the efficient use of appellate court resources,in the interests of all parties to appeals before those courts. It would be inconsistentwith those objectives for us to deliver a lengthy judgment that addresses each of the22 alleged errors, most of which reflect misunderstandings on the applicant's partabout the relevant legislation and about the court process.[17] We therefore decline leave to appeal to this Court.Costs[18] The respondent seeks costs. There is no reason why costs should not followthe event in the ordinary way. The respondent is a publicly funded entity. It shouldbe able to recoup some of the cost of responding, for a third time, to the issues raisedby the applicant about the Alteration. We therefore award costs to the respondent forpreparation of its submissions in opposition to the application for leave to appeal fora standard appeal on a band A basis. The respondent is entitled to costs for 0.4 of a dayat the current daily rate for a category 2 proceeding in the High Court ($2,390), whichresults in a costs award of $956.Solicitors:Bell Gully, Auckland for Respondent