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Dokad Trustees Limited v Auckland Council [2021] NZHC 2603 (30 September 2021)

Last Updated: 5 November 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 30 September 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

DOKAD TRUSTEES LIMITED v AUCKLAND COUNCIL [2021] NZHC 2603 [30 September 2021]

• [1] Mr Peter Mawhinney is subject to an order under s 166 of the Senior Courts Act 2016 (SCA). He is restrained, in any capacity, from commencing any civil proceeding that relates to specified parcels of land in the Waitākere Ranges. That order was made on 28 February 2019 and will remain in force until 28 February 2022.¹

• [2] In March 2021, Dokad Trustees Ltd (Dokad) commenced a civil proceeding in the Environment Court applying for enforcement orders against Auckland Council. The 47-page application sought 24 orders. It was signed by Mr Mawhinney for and on behalf of Dokad and supported by an affidavit from Mr Mawhinney. The single exhibit to Mr Mawhinney’s affidavit filled four lever arch folders.

• [3] Dokad was incorporated on 12 January 2021. It has one director, a Mr Anthony Mawhinney, and one shareholder, a Mr William Mawhinney.

• [4] Judge Kirkpatrick found Dokad’s application related to the land specified in the s 166 order. He considered it was clear Mr Mawhinney was involved in commencing the application. He concluded Mr Mawhinney was restrained by the s 166 order from commencing the application. He directed the Registrar to take no further steps in relation to it.

• [5] Dokad and Mr Mawhinney then filed an application for judicial review in this Court. They seek judicial review of Auckland Council’s acts and omissions in processing various applications and requests, apparently being the applications and requests that were the subject of Dokad’s application for enforcement orders. They also seek judicial review of Judge Kirkpatrick’s decision.

• [6] In the judicial review proceeding Mr Mawhinney has made an interlocutory application under s 169 of the SCA for leave to commence or continue (i) the judicial review proceeding and (ii) Dokad’s application in the Environment Court for enforcement orders. This judgment deals with Mr Mawhinney’s application for leave.

¹ Auckland Council v Mawhinney [2019] NZHC 299, Mawhinney v Auckland Council [2021] NZCA 144 at [135], Mawhinney v Auckland Council [2021] NZSC 122.

The statutory framework

• [7] Section 166 of the SCA empowers a Judge of this Court to make an order restricting a person from commencing or continuing a civil proceeding. A s 166 order can be one of three types: a limited order, an extended order or a general order. The order against Mr Mawhinney is an extended order. The effect of an extended order is set out in s 166(4):

166 Judge may make order restricting commencement or continuation of proceeding

...

(4) An extended order restrains a party from commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal.

• [8] The grounds for making a s 166 order are stipulated in s 167. An extended order may be made if, in at least two proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit. Section 167(5) clarifies which proceedings count for this purpose:

167 Grounds for making section 166 order

...

(5) The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.

• [9] The SCA contemplates a person subject to a s 166 order may obtain leave to commence or continue a proceeding otherwise covered by the order. The relevant provisions provide:

168 Terms of section 166 order

(1) An order made under section 166 may restrain a party from commencing or continuing any proceeding (whether generally or against any particular person or persons) of any type specified in the order without first obtaining the leave of the High Court.

...

169 Procedure and appeals relating to section 166 orders

...

(4) An application for leave to continue or commence a civil proceeding by a party subject to a section 166 order may be made without notice, but the court may direct that the application for leave be served on any specified person.

(5) An application for leave must be determined on the papers, unless the Judge considers that an oral hearing should be conducted because there are exceptional circumstances and it is appropriate to do so in the interests of justice.

(6) The Judge’s determination of an application for leave is final.

...

Background

• [10] Over more than two decades, several proceedings were issued by Mr Mawhinney (either in his personal capacity or as a trustee), or by entities controlled by him, initially against the Waitakere City Council and subsequently its successor Auckland Council, in relation to the development of land in Anzac Valley Road, Waitākere.

• [11] In 2017, Auckland Council applied for an extended order under s 166 of the SCA restraining Mr Mawhinney, in his personal capacity and as a trustee of any trust, from commencing any proceedings in relation to that land. The Council originally proposed that an order restrain Mr Mawhinney and several named companies from commencing civil proceedings.² The Council subsequently did not pursue an order restraining the companies. As Hinton J, who delivered judgment on the Council’s application, explained:

• [152] The Council originally proposed that I make an order restraining Mr Mawhinney and several named companies from commencing civil proceedings. But they subsequently withdrew the application in that form after Mr Mawhinney objected that this Court could not make an order against companies that were not named as parties to this proceeding, citing s 168 of the Act, which in turn would mean that a case would need to be proven against them. 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 but not limited to as a trustee of any trust, from commencing or continuing any civil proceeding (or matter arising out of a civil proceeding), which relates in any way to the parcels of

² Dokad was not one of the named companies. It was not then incorporated.

land contained in the identifiers set out in Schedule A for a period of five years.

• [154] That order may possibly prevent Mr Mawhinney bringing proceedings in the name of corporate entities in any event, but as I understand it, the Council is unconcerned for the moment. It takes the view that in this case the combined effect of the bankruptcy and the s 166 order will be enough to stop Mr Mawhinney bringing or continuing further proceedings in any capacity. The Council says his being an undischarged bankrupt will prevent him from being a director of a company for some time, or for that matter from litigating in person. The Council’s particular concern is to stop Mr Mawhinney from litigating as a trustee, which it says might require the s 166 order.

• [12] A related issue arose in assessing whether Mr Mawhinney had brought at least two proceedings that were totally without merit. As noted, s 167(5) provides that the proceedings that count for this purpose are those “commenced or continued by the party to be restrained”. The issue was whether this included proceedings commenced

(i) by Mr Mawhinney in a trustee capacity and (ii) by companies with which Mr Mawhinney was associated. Hinton J held proceedings commenced by Mr Mawhinney as trustee could be counted under s 167. She declined to decide whether proceedings commenced by associated companies could count, explaining:

[64] I am uncertain if the same reasoning [that proceedings commenced by Mr Mawhinney as trustee can be counted for the purpose of s 167] applies to proceedings brought by incorporated companies associated with and represented by Mr Mawhinney. Section 167(5) is in terms: “the proceedings concerned must be proceedings commenced or continued by the party to be restrained”. Proceedings commenced by a party other than Mr Mawhinney would appear not to count as a qualifying proceeding under s 167(2), even if Mr Mawhinney represented that party.

...

• [67] I would be somewhat sympathetic to an argument that the legislature did not intend to preclude a proceeding from qualifying only because the litigant acted through companies, rather than in a personal capacity, especially where he was effectively the only shareholder and director. A proceeding “commenced” in the name of a company would still in those circumstances be a proceeding commenced by Mr Mawhinney.

• [68] But, as this may amount to effectively lifting the corporate veil, such an 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 entities where Mr Mawhinney was not a named party do not qualify as being a “proceeding” under s 167.
• [13] Even on that basis, Hinton J was satisfied Mr Mawhinney had brought at least two proceedings that were totally without merit and that the circumstances justified exercising her overall discretion to make an extended order. She also found that exceptional circumstances existed to warrant the order being in effect for five years. The order made was in the following terms:³

Peter William Mawhinney, in any capacity, including but not limited to as a trustee of any trust, is restrained from commencing or continuing any civil proceeding (or matter arising out of a civil proceeding) that relates in any way to the parcels of land contained in the identifiers set out in Schedule A to this judgment, for a period of five years.

• [14] Mr Mawhinney appealed. The Court of Appeal varied the order by reducing the term from five years to three years.⁴ It otherwise confirmed the terms of the order. In its reasons the Court noted Hinton J had declined to decide whether proceedings commenced by companies associated with Mr Mawhinney could count under s 167. The Court added:

This issue was not addressed on the appeal. Consequently this judgment does not engage with the proposition which has found favour in England that a party who has issued claims or applications refers not only to the named party but also to someone who is not a named party but is nevertheless the “real” party who has issued a claim or made an application.

• [15] Mr Mawhinney’s application for leave to appeal to the Supreme Court was declined.⁵

• [16] For clarity, I note the Court of Appeal’s judgment was delivered very shortly after Judge Kirkpatrick decided the s 166 order applied to Dokad’s application.

Procedural matters

• [17] Mr Mawhinney’s application for leave set out the grounds on which he sought leave. That part of his application, covering about ten pages, was in the nature of submissions. His submissions were comprehensive. Mr Mawhinney addressed whether the s 166 order restrained Dokad from commencing a proceeding. He submitted it did not.

³ Auckland Council v Mawhinney [2019] NZHC 299 at [160].

⁴ Mawhinney v Auckland Council [2021] NZCA 144 at [135].

⁵ Mawhinney v Auckland Council [2021] NZSC 122.

• [18] Mr Mawhinney noted his application was to be determined on the papers unless, in terms of s 169(5), there were exceptional circumstances and it was appropriate in the interests of justice to have an oral hearing. He submitted there were no such exceptional circumstances.

• [19] Mr Mawhinney’s application was made without notice (as is allowed by s 169(4)). I directed he serve the application on Auckland Council. If the Council wished to file submissions, I further directed, its submissions should address whether the s 166 order prevented Dokad from commencing this proceeding. I observed that was a matter Mr Mawhinney addressed in his application for leave.

• [20] The Council’s submissions did address that matter. The Council also agreed the application should be determined on the papers.

• [21] Mr Mawhinney then emailed the Registry, claiming the Council had brought up new issues, including “a proposal to the effect that [Dokad] is restrained from commencing proceedings”. Mr Mawhinney said the applicants intended to file and serve reply submissions. He asked whether a formal application for directions was required.

• [22] The Registry referred Mr Mawhinney’s email to me. I prepared a minute. This said that Mr Mawhinney could not reply to any submissions the Council had made to the effect that Dokad was restrained, since that was not a new issue. Any reply submissions were not to exceed four pages.

• [23] Before Mr Mawhinney received that minute (and, therefore, before he received the directions that he contemplated would be made), Mr Mawhinney filed reply submissions. They ran to 19 pages. That was about double the length of Mr Mawhinney’s principal submissions. They included submissions on whether Dokad was restrained, as well as submissions on other matters not in reply.

• [24] After receiving my minute, Mr Mawhinney then filed “further submissions in reply”. He said these were to meet “the 4 page criterion”. A large part of these submissions was devoted to whether Dokad was restrained.
• [25] I have decided the application for leave should be determined on the papers.

Issues on Mr Mawhinney’s application for leave

• [26] Mr Mawhinney applies for leave to commence two proceedings against the Council: the application to the Environment Court for enforcement orders, and this application for judicial review. These two proceedings have the same underlying subject-matter. In the Environment Court, Dokad sought enforcement orders in respect of various applications for resource consent, requests for certificates of compliance and objections. In this Court, Dokad and Mr Mawhinney apply for a judicial review of the Council’s acts and omissions in processing those same applications, requests and objections. Because of the identity of the underlying subject-matter, it is not necessary to distinguish between the two proceedings for the purpose of Mr Mawhinney’s leave application.

• [27] In the Environment Court, Mr Mawhinney submitted the s 166 order did not capture the application for enforcement orders because the application did not relate to the land specified in the s 166 order. The Judge rejected that submission. Mr Mawhinney’s submission was based on an analysis of the s 166 order that the Court of Appeal subsequently rejected (as “an overly technical analysis”) when upholding Hinton J’s judgment. Mr Mawhinney did not repeat the submission to me. I am satisfied on the material before me that the two proceedings relate to the land specified in the s 166 order.

• [28] This leaves two issues to determine on the application for leave:

(a) Does the s 166 order restrain Dokad from commencing the proceedings?

(b) Should I grant leave?

Does the s 166 order restrain Dokad from commencing the proceedings?

• [29] Mr Mawhinney submitted Dokad was a separate legal entity from himself and therefore not subject to the restraining order. He submitted Hinton J had determined

that a registered company such as Dokad was not subject to the s 166 order, notwithstanding any connection he may have with the company. He said that determination was not altered by the Court of Appeal’s judgment.

• [30] I do not accept that Hinton J made such a determination. Hinton J expressly left the point open. She said that the order she made “may possibly prevent Mr Mawhinney bringing proceedings in the name of corporate entities in any event”.⁶ The Court of Appeal did not comment on that. The Court merely said they were not engaging with the related question of whether earlier proceedings by companies associated with Mr Mawhinney could count for the purposes of s 167.⁷

• [31] I accept, of course, that Dokad is a separate legal entity from Mr Mawhinney. But I find that Dokad is, in the circumstances of this case, nonetheless restrained by the s 166 order from commencing the proceedings. This is because a s 166 order prevents the restrained party from commencing any proceeding in which he or she controls the proceeding, and I am satisfied Mr Mawhinney controls the subject proceedings. I now expand on these two points.

A s 166 order prevents the restrained party from commencing any proceeding in which he or she controls the proceeding

• [32] An order under s 166 restrains “a party from commencing” civil proceedings. Similarly, s 167(5) provides the earlier proceedings that can be counted in determining whether an order should be made must be ones “commenced ... by the party to be restrained”.

• [33] Implicit in Mr Mawhinney’s submission is the proposition that, in terms of ss 166 and 167(5), a party “commences” civil proceedings only where that party is the named party to those proceedings. I regard that as an unduly narrow interpretation of the provisions.

⁶ Auckland Council v Mawhinney [2019] NZHC 299 at [154]. And, as noted earlier, Hinton J left open whether earlier proceedings brought by companies associated with Mr Mawhinney counted for the purposes of s 167: at [64]-[68].

⁷ Mawhinney v Auckland Council [2021] NZCA 144 at [74].

• [34] The meaning of the provisions must be ascertained from their text in light of their purpose.⁸ As to the text, the words “a party ... commencing civil proceedings” are open to two interpretations. A narrow interpretation, favoured by Mr Mawhinney, focuses on the identity of the named plaintiff or applicant to the proceeding. On that interpretation, the words mean a party commencing civil proceedings in his or her own name. A broader interpretation would also consider the identity of the person in control of the proceeding. On that interpretation, the words include a party commencing civil proceedings in the name of another person where the party controls the proceeding.

• [35] As to purpose, the SCA does not state a particular purpose for these provisions. However, that purpose is evident from the provisions themselves and from their history. In its issue paper for the review of the Judicature Act 1908 (which led to the SCA), the Law Commission explained the background to what would become ss 166- 169 of the SCA:⁹

Access to the courts is an integral element of the rule of law, and a fundamental right in a democracy. However, sometimes people use the courts in ways that strain the resources of the justice system and place undue pressure on other parties, court staff and judicial officers. Some people repeatedly bring civil proceedings, often involving the same subject matter, against others, despite the courts finding that their claims are without merit. Others respond to a decision that goes against them by bringing still more proceedings, drawing in an ever-widening circle of defendants.

There are mechanisms operating in the courts system that have the effect of discouraging people from taking proceedings to court unless they have a genuine cause of action, but these are not always enough. Further, while the High Court has inherent jurisdiction to restrain a plaintiff from making applications within an existing proceeding (on the basis that they are vexatious), without the leave of the Court, it does not have the power under its inherent jurisdiction to prevent a person from commencing proceedings that appear to be vexatious. Nor does it have inherent jurisdiction to prevent a plaintiff from instituting future actions without leave.

Accordingly, New Zealand has, since 1965, had statutory measures in place to help the courts deal with litigants who persistently bring vexatious civil proceedings against others.

⁸ Interpretation Act 1999, s 5.

⁹ Law Commission Review of the Judicature Act 1908: towards a consolidated Courts Act (NZLC IP29, 2012) at 173. References omitted.

• [36] The purpose of the SCA provisions, then, is to place a reasonable limit on a person’s access to the courts, that limit reflecting concerns some people use the courts in ways that strain judicial resources and place undue pressure on other parties. This purpose favours an interpretation of the provisions that includes consideration of the identity of the person controlling the proceeding in question. By contrast, Mr Mawhinney’s narrow interpretation would undermine this purpose. A person subject to a s 166 order could circumvent the order merely by finding another person to commence a proceeding or interposing a company for this purpose.¹⁰

• [37] For those reasons, I interpret the provisions as capturing not only a party commencing a proceeding in his or her own name, but also a party commencing a proceeding in the name of another person where the party controls the proceeding.

• [38] This interpretation is consistent with the view the English courts have taken of equivalent provisions, on which the SCA provisions are modelled, in that jurisdiction. Practice Direction 3C, authorised by r 3.11 of the Civil Procedure Rules 1998 (UK), provides that civil restraint orders (CROs) can be made where “a party” has “issued” claims or “made” applications. In CFC 26 Ltd v Brown Shipley & Co Ltd, an individual against whom an extended civil restraint order (ECRO) was sought had made some claims and applications in his own name and others through associated companies he controlled.¹¹ An issue for the Court was whether a CRO could be based wholly or in part on claims or applications made in the name of someone other than the subject of the CRO.¹²

• [39] Newey J framed that issue in the following terms:¹³

Suppose, say, that an individual has issued one totally without merit application himself and that a second such application has been issued by his spouse or by a company of which he is a director and shareholder or by a trust in which he has an interest. When, if ever, would there be power to make a limited CRO under paragraph 2.1 of Practice Direction 3C? To what extent (if any), too, can claims or applications issued in the names of third parties found an ECRO?

¹⁰ Likewise, a person could evade the controls of s 166 by using a succession of different ciphers to commence a series of proceedings.

¹¹ CFC 26 Ltd v Brown Shipley & Co Ltd [2017] EWHC 1594 (Ch) [2017] 1 WLR 4589 at [3].

¹² At [8].

¹³ At [14].

• [40] He accepted a narrow construction of the Practice Direction was available:¹⁴

The “party” who has “issued” a claim would normally be taken to be the named claimant, and the “party” who has “made” an application would ordinarily be understood to be the person identified as the relevant claimant or defendant. On that basis, the practice direction would not apply unless the person against whom a CRO was sought had made the relevant number of claims or applications in his own name. By the same token, a CRO could not, presumably, debar the person against whom it had been made from causing an individual or entity associated with him from making a claim or application.

• [41] The Judge acknowledged this approach would be consistent with the longstanding “fundamental feature of English commercial law” that companies have a distinct legal personality.¹⁵

• [42] On the other hand, the Judge said, the ability of the courts to make CROs could be seriously undermined by a narrow construction focusing exclusively on named parties in proceedings. The Judge then noted there were circumstances in which the courts view someone who is not the named party as the “real” party to litigation, referring to the principle that costs could be awarded against a non-party where that person “not merely funds the proceedings but substantially also controls or at any rate is to benefit from them”.¹⁶

• [43] The Judge concluded that a more expansive meaning of “party” was necessary which extended beyond the named person in a proceeding to include the “real” party pursuing the proceeding. He added:¹⁷

Likewise, if a claim or application is issued in the name of someone who is not subject to a CRO, but the “real” claimant or applicant has had such an order made against him, the CRO will, as it seems to me, bite on the claim or application.

• [44] Newey J’s reasoning was affirmed by the English Court of Appeal in Sartipy v Tigris Industries Inc.¹⁸ Males LJ, writing the leading judgment of the Court, said it was unnecessary for the purposes of the appeal to explore the limits of the “real party”

¹⁴ At [15].

¹⁵ At [16].

¹⁶ At [19], citing Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, [2005] 1 NZLR 145 at [25].

¹⁷ At [20].

¹⁸ Sartipy v Tigris Industries Inc [2019] EWCA Civ 225, [2019] 1 WLR 5892 at [32].

concept, “but it must extend to a person who is controlling the conduct of the proceedings and who has a significant interest in their outcome”.¹⁹ The Supreme Court refused permission to appeal.²⁰

• [45] The interpretation I favour is also supported by Siemer v District Court, North Shore.²¹ Jane Siemer, who was subject to a s 166 order, applied for leave to commence a proceeding in her own name. Her husband, Vincent Siemer, was subject to a similar order. Downs J decided against granting leave, as he considered “it all but certain Mr Siemer is behind this”.²² Because Mrs Siemer was seeking leave to commence a proceeding in her own name, the Judge was not confronted with the interpretative point that has arisen on this application. But his Honour concluded with this point: “[v]exatious litigants may not litigate by proxy”.

• [46] Finally, I observe my interpretation does not involve resort to the metaphorical wonder of “lifting the corporate veil”. All that is involved is a process of statutory interpretation. This interpretation applies whether the named party (controlled by the restrained party) is a natural person or a company. Sartipy is illustrative: for some proceedings Mrs Sartipy was the named party but her son was regarded as the “real party”.

Mr Mawhinney controls the proceedings

• [47] I am satisfied Mr Mawhinney controls both the subject proceedings.

• [48] In the Environment Court, Mr Mawhinney signed the application for enforcement orders “for and on behalf of” Dokad. The application gave his email address as the electronic address for service for Dokad. Mr Mawhinney swore an affidavit in support of the application for enforcement orders. Mr Mawhinney has sought leave (from this Court) to represent Dokad at the Environment Court.

¹⁹ Sartipy v Tigris Industries Inc [2019] EWCA Civ 225, [2019] 1 WLR 5892 at [32].

²⁰ Sartipy v Tigris Industries Inc [2020] 1 WLR 2354 (SC).

²¹ Siemer v District Court, North Shore [2019] NZHC 346.

²² Siemer v District Court, North Shore [2019] NZHC 346 at [14].

• [49] In this Court, Mr Mawhinney swore the affidavit in support of the application for judicial review. The application for judicial review states that Dokad has the same postal address as Mr Mawhinney. Mr Mawhinney has communicated with the Registry on behalf of both Dokad and himself. The subject-matter of the judicial review is the same as that of the enforcement orders.

• [50] In his submissions Mr Mawhinney said he is not a shareholder or director of Dokad and is not a beneficiary of the trust of which Dokad is apparently a trustee. Even if that is so, it is not inconsistent with control of the proceedings.

Conclusion

• [51] Because Mr Mawhinney controls both the subject proceedings, he requires leave to commence them. It follows that Dokad cannot commence either proceeding without Mr Mawhinney first obtaining leave.

Should leave be granted?

• [52] I turn then to the question of whether leave should be granted.

The test for leave

• [53] Mr Mawhinney submitted the test for leave is whether the proposed proceeding is “totally without merit”. He drew this test by inference from the test in s 167 for making a restraining order. He said the purpose of a leave application was to determine whether the proposed proceeding is totally without merit.

• [54] On behalf of the Council, Mr O’Connor submitted Mr Mawhinney had conflated the grounds for making an order under s 166 with a decision on leave. He said s 169 does not have any express leave criteria and it was not sufficient for the applicant merely to show the proceeding was not totally without merit.

• [55] I accept Mr O’Connor’s submission. Section 169 of the SCA does not stipulate any criteria for granting leave to commence a proposed proceeding. There is a broad discretion. A relevant consideration will be the apparent merit of the proposed proceeding. But that is not the sole consideration. The manner in which the

proceeding is likely to be conducted will be relevant.²³ Also relevant may be any connection between the proposed proceeding and the earlier proceedings that led to the s 166 order. There may be other relevant considerations. Section 169 is not prescriptive.

• [56] Mr Mawhinney’s submission places an unwarranted gloss on the leave discretion in s 169. If Parliament had intended leave to be granted whenever a proposed proceeding was not totally without merit, they could easily have said so: the “totally without merit” test was already employed in s 167. Instead Parliament stipulated no criteria.

• [57] A contrast can be drawn with the predecessor provision, s 88B of the Judicature Act 1908. Under s 88B(2), leave could not be granted unless the Court was satisfied “the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding”. Even if those thresholds were crossed, the Court had a discretion whether to grant leave. It is inconceivable that Parliament, having enacted s 169 on a broader basis than the former s 88B, could have intended that the Court’s discretion was more limited under s 169 than under s 88B (which is the effect of Mr Mawhinney’s submission).

• [58] I add two further points. The courts described the leave discretion in s 88B(2) as “a jurisdiction to be exercised very carefully” because it had already been established that the litigant had “habitually and persistently without any reasonable ground instigated vexatious proceedings”.²⁴ In my view this applies equally to the leave discretion in s 169. The discretion to grant leave remains one to be exercised with restraint given the existence of the 166 order establishes the applicant has already, repeatedly, engaged in litigation that was totally without merit and has conducted the litigation in a way justifying a restraining order.

• [59] The other point is that the burden is on the applicant to persuade the Court that leave should be granted.

²³ This is relevant to the discretion whether to make a s 166 order (Auckland Council v Mawhinney

[2019] NZHC 299 at [115]) and so must equally be relevant to the leave discretion.

²⁴ Re Collier [2008] NZHC 2691; [2008] 2 NZLR 505 (HC) at [9], quoting Davies LJ in Becker v Teale [1971] 1 WLR 1475 (CA) at 1476.

Leave should not be granted

• [60] Mr Mawhinney has not satisfied me that leave should be granted, for the following reasons.

• [61] First, the proposed proceedings appear to have little if any merit. They relate to applications, requests and objections made in respect of the same subdivision proposal for the Waitākere land that has repeatedly been before the Environment Court and this Court. Mr Mawhinney and his interests have always been unsuccessful. Indeed, Mr Mawhinney acknowledged in his submissions that prior to the s 166 order there were appeals to the High Court (against various declarations by the Environment Court) and applications for judicial review “in respect of many of the issues in the subject application for enforcement orders, and the subsequent application for judicial review”. I accept Mr O’Connor’s submission that Mr Mawhinney and his interests are seeking to relitigate their earlier objections in circumstances where the Environment Court has upheld the Council’s decisions.

• [62] Secondly, the proposed proceedings have a close relation to the earlier proceedings on which the s 166 order is based. Even if some of the applications, requests and objections were made after that order (and, therefore, had not previously been determined by a Court), those applications, requests and objections are in respect of the same underlying subdivision proposal and are merely variations on applications, requests and objections that have previously been before the Council.

• [63] Thirdly, it is likely Mr Mawhinney will conduct the proposed proceedings in a manner that places an undue burden on both the Council and the Courts. That is evident from the vast affidavit he placed before the Environment Court. It is evident from his filing reply submissions before obtaining any direction to do so from this Court. It is evident from those reply submissions managing to be almost twice the length of his principal submissions and straying well beyond a reply.

Result

• [64] Dokad cannot commence either proceeding without Mr Mawhinney first obtaining leave to commence the proceedings under s 169. Leave under s 159 is refused.

• [65] The Council is entitled to costs on the application from Mr Mawhinney and from Dokad. If costs cannot be agreed memoranda are to be filed and served as follows:

(a) The Council is to file and serve a memorandum, not exceeding two pages, by 15 October 2021.

(b) Mr Mawhinney and Dokad are to file and serve a memorandum, not exceeding two pages, by 22 October 2021.

Campbell J