Attorney-General v Edmonds CA97/05

[2005] NZCA 419

IN THE COURT OF APPEAL OF NEW ZEALAND

CA97/05

BETWEEN  THE ATTORNEY-GENERAL Appellant

ANDTERENCE DESMOND MEAD EDMONDS AND DAVID JOHN MCINTYRE EDMONDS, HYLTON ANDREW MCINTYRE EDMONDS AND JENNIFER HATFIELD MCINTYRE WILSON (AS THE EXECUTORS OF

THE ESTATE OF THE LATE ROBERT PATRICK MEAD EDMONDS) Respondents

Hearing:         12 December 2005

Court:            Anderson  P, William Young and Robertson JJ Counsel:        M T Parker for Appellant

J O Upton QC for Respondents
R J Fowler for Wellington City Council

Judgment:      15 December 2005

JUDGMENT OF THE COURT

Leave granted for limited intervention.

REASONS

(Given by Anderson P)

[1]      This is an application, pursuant to r 48 Court of Appeal (Civil) Rules 2005, for orders directing that the Wellington City Council (the Council) be served with

the notice of appeal herein and directing that the Council may appear to be heard in

THE ATTORNEY-GENERAL V TERENCE DESMOND MEAD EDMONDS AND DAVID JOHN MCINTYRE EDMONDS, HYLTON ANDREW MCINTYRE EDMONDS AND JENNIFER HATFIELD MCINTYRE WILSON (AS THE EXECUTORS OF THE ESTATE OF THE LATE ROBERT PATRICK MEAD EDMONDS) CA CA97/05  15 December 2005

respect of those pieces of land, known as “areas B and C” which form part of the subject matter of the litigation.

[2]      The respondents brought proceedings in the High Court at Wellington against the Attorney-General for relief pursuant to s 40 of the Public Works Act 1981.  That statutory provision deals with land held under the Public Works Act 1981 or any other Act or in any other manner for  any public work  and which is no longer required for that public work nor for any essential work nor for any exchange under s

105  of  the  Act.    In  those  circumstances  the  chief  executive  of  the  relevant department or local authority as the case may be shall, unless they consider that it would be impractical, unreasonable or unfair to do so, offer to sell the land by private contract to the person from whom the land was acquired or to the successor of that person.  The respondents are successors to the person from whom certain land in central Wellington, including areas B and C, was acquired and held under the Public Works Act.

[3]      In the judgment under appeal, Miller J found in favour of the respondents and made  a  declaration  that  the  Crown  is  obliged  to  offer  the  land  back  to  the respondents pursuant to s 40.  He reserved the issue of damages.

[4]      The Council claims an equitable interest in areas B and C pursuant to an arrangement entered into with the Crown in 1989.  The respondents, as plaintiffs in the High Court, did not join the Council as a party either upon commencing proceedings or at any later time when it might be thought the Council’s claimed interest would have become known to them.   On the other hand, the Council was aware long before the pleadings closed that the litigation had commenced and was in train but for reasons which Mr Fowler is unable to explain elected not to seek to be joined as a party.   Only now, with the High Court judgment cutting across it’s claimed equitable interest, does the Council want to become involved directly in the litigation.  This application to achieve that is supported by the appellant but is firmly resisted on behalf of the respondents.

[5]      Rule 48 is occasionally invoked to permit intervention by persons whose personal interest is not of a character which would warrant their joinder as parties to

a proceeding but who nevertheless have an interest of a particular nature, the exposition of which might be of assistance to the Court in resolving the issues between the more direct parties.   An example of the conventional reasons for authorising such an intervention is Lai v Chamberlains [2005] 3 NZLR 291 where the New Zealand Bar Association and the New Zealand Law Society were granted leave to intervene to present submissions on the issue of barristerial immunity from suit. The particular interest of the Association and Society as representatives of the legal profession included the impact of a potential change in the common law on their members. Further, the experience of the members, as conveyed by counsel, could inform the submissions before this Court.

[6]      A case such as that squarely fell into category (d) identified in commentary CR 48.01(2) of McGechan on Procedure as one where the case raises issues of general principle and wide importance, and where the Court can appropriately ask itself whether it would be assisted by submissions from the party or person sought to be joined, Wellington City Council v Woolworths New Zealand Ltd 2 NZLR [1996]

436.

[7]      If the Council could rely only on the last mentioned principle, it might be in greater difficulty with its application now before us.  But its interest is more personal and tangible having regard to its equitable claim.  The nature of that claim rendered it a person who, to use the terms of r 97(1)(b) of the High Court Rules:

ought to have been joined, or whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the proceeding…

[8]      Mr Upton’s submissions in opposition to the application emphasised that the Council had made a deliberate tactical decision not to become involved in the litigation so that if the matter came to be resolved by the Court’s discretion under r 48, that deliberate decision should tell against the granting of leave to join in belatedly.   He submitted that there were no matters of general principle or policy engaged by the  proceeding,  the  issues  being confined  to  a  factual  analysis  and application  in  the  light  of  settled  legal  principles.    Nor,  he  submitted,  is  there prejudice to the Council in the present case because the Council and the Crown have a common interest in the outcome of the appeal, having regard to any equitable

arrangement between them.  Further, on the facts of the case (which we do not need to expatiate), the Council will be in a position to acquire the land whether the appellant succeeds or the respondents succeed on the appeal.   It will simply be a question of from whom the land will be acquired.

[9]      Of some concern to the respondents is the fact that a one day fixture has been given for 21 February and they are apprehensive that intervention by the Council will extend the hearing time beyond one day and put that fixture at risk.

Discussion

[10]     As we have made plain, we consider that the Council was a proper party to the litigation and we are surprised at its earlier decision not to participate.   It represents public interests which might be affected by the outcome of the appeal and for these reasons we think that it should be given some opportunity to express its viewpoint on the appeal.   The impact on the scheduled hearing time, of Council participation, is a matter of some concern to the Court as well as to the respondents. As we mentioned to counsel for the Council in the course of argument, and as he accepted, that in fact would be significantly reduced if participation by the Council were confined to the filing of written submissions.

Result

[11]     In the result we direct that the notice of appeal be served on the applicant Council and that it be granted leave to intervene to the extent that it may present written submissions in support of the appeal, such submissions to be filed and served on the other parties not later than 20 working days before 21 February 2006.  There will be no order as to costs on the application.

Solicitors:

Phillips Fox, Wellington for Appellant

Bisson Moss, Napier for Respondents