Banks v Ports of Auckland

[2015] NZHC 845

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000885 [2015] NZHC 845

IN THE MATTER OF

an application for judicial review and

interim orders under the Judicature
Amendment Act 1972

BETWEEN

CAROL CHRISTINE BANKS Applicant

AND

PORTS OF AUCKLAND LIMITED Respondent

Hearing:	28 April 2015
Appearances:	A R Longdill for Applicant J A Farmer QC and M R Crotty for Respondent A M Adams for Auckland Council
Judgment:	28 April 2015

ORAL JUDGMENT OF VENNING J

Solicitors:           Cook Morris Quinn, Auckland Russell McVeagh, Auckland Meredith Connell, Auckland

Copy to:            A Longdill, Auckland

J A Farmer QC, Auckland

BANKS v PORTS OF AUCKLAND LIMITED [2015] NZHC 845 [28 April 2015]

[1]      On Friday the applicant Ms Banks filed a statement of claim for judicial review together with an application for interim orders.  Ms Banks owns a property at Stanley Point.  She seeks orders declaring that the decision of the respondent, Ports of Auckland Limited, to proceed with extension work to the Bledisloe Wharf is invalid and an order setting it aside.  She also seeks an order directing the Ports of Auckland to reconsider its decision and take into account directions of the Auckland Council and the environmental impact of their proposed course of action.

[2]      The  application  was  accompanied  by  an  affidavit  from  Ms  Banks  and affidavits from Mr Chambers, Mr Sanderson, and Mr Longdill.  All are users of the Waitemata Harbour.   The application was also accompanied by an application for interim  orders restraining the Ports  of Auckland  from  taking  any further action pursuant to the resource consents granted to it by the Auckland Council pending further order of the Court. The applicant also sought discovery of Board meetings.

[3]      The application came before Woodhouse J on Friday afternoon.  The Judge considered it appropriate to list it for mention in the duty Judge list this morning.  He did so for two reasons.  It was on notice and the respondent Ports of Auckland was entitled to a proper opportunity to respond.  In addition, as the Judge noted, there are other substantive proceedings before the Court relating to the same issue.   Those other proceedings are the proceedings brought by Urban Auckland, the Society for the  Protection  of Auckland  City  and  Waterfront  Inc  against  both  the Auckland Council and Ports of Auckland.  Those proceedings are for a substantive fixture on 2

June (three days allocated).  The Judge considered that it would be inappropriate to have a duplication of proceedings unless it was essential.

[4]      When the matter was called this morning Ms Longdill presented a draft amended  statement  of  claim  proposing to  join  the Auckland Council  as  second respondent and a second affidavit from Ms Banks.  In that second affidavit Ms Banks confirmed her position, and also referred to correspondence she had received a copy of between Auckland Council Investments Ltd and Ports of Auckland and other material including the views of a Ngati Whatua representative.

[5]      Ms Longdill submits that the Court should engage this morning with the application for interim relief with a view to the Court making an interim order preventing   or   restraining   the   Ports   of  Auckland   from   continuing   with   the construction work for the extension of the wharfs pending further order of the Court or pending the substantive hearing of the applicant’s application for judicial review. That was opposed by Mr Farmer QC for the Ports of Auckland Ltd.   He submits there are a number of practical difficulties with proceeding with an application for interim relief at this time.  The Ports of Auckland is not in a position to respond fully this morning.  Further, the undertaking which had been given by Ports of Auckland in the Urban Auckland proceedings was available and confirmed by counsel in these proceedings.   Mr Farmer submitted that the most expeditious way forward for all parties was for these proceedings to be timetabled to a substantive fixture, either to be  heard  at  the  same  time  or  immediately  following  the  Urban  Auckland proceedings.

[6]      The Auckland Council are also represented this morning by Ms Adams.  She entered  an  appearance  because  of  the  memorandum  filed  by  counsel  for  the applicant.  The memorandum related to the dealings and discussions with Auckland Council regarding the information sought by the applicant relating to the evidence in the Urban Auckland proceedings.  Ms Adams confirmed that the Council does not oppose providing the evidence from the Urban Auckland proceeding to the applicant in this proceeding but seeks a direction from the Court confirming that it is to disclose that evidence as it was prepared for the purposes of the other proceedings. She further notes that the evidence has not yet been filed in Court because it is not yet due to be filed in accordance with the existing timetable.

[7]      Ms Adams also noted that the Council had understood, at least until the draft amended statement of claim was presented to Court this morning, that no substantive relief was sought from the Council by this applicant.  That may well not be the case if the amended statement of claim is filed in the draft form.

[8]      So the issue for the Court this morning is whether, as Ms Longdill submits, the Court should engage in a hearing on whether interim relief ought to be granted to the applicant as sought, effectively preventing Ports of Auckland from carrying on

with the extension work pending the further order of the Court or the hearing of its substantive application, or, as Mr Farmer submitted, the interim application should not be entertained by the Court as it was not ready for hearing and the matter should be timetabled through to a substantive hearing.

[9]      The application for interim relief is based on the following substantive legal matters.  In the statement of claim filed with the Court it is said that the decision by Ports of Auckland to proceed with the construction is:

(a)      invalid as it has failed to sufficiently take into account a mandatory relevant consideration, namely the directions of its shareholders;  and

(b)      Wednesbury unreasonable.

[10]     In the draft amended statement of claim it is said that the decision to proceed with the construction:

(a)       Is Wednesbury unreasonable;

(b)failed to sufficiently take into account a mandatory relevant consideration, namely the directions of its shareholders;

(c)      is invalid as it failed to take into account a mandatory relevant consideration,  namely  the  environmental  impact  of  its  proposed course of action; and

(d)is invalid as induced by a material mistake of fact, namely the Chairperson’s mistaken view that people who wished to be heard on the application were a minority.

[11]     The grounds which the applicant seeks to rely on to support the interim relief clearly raise evidentiary issues.  At present, while there is the general and limited evidence from the plaintiff applicant there is no evidence from the Ports of Auckland on those issues.   Despite Ms Longdill’s submission the Court should nevertheless proceed to deal with the application for interim relief on an interim basis I am not

prepared  to  do  so.    I  consider  the  Ports  of Auckland  are  entitled  to  have  the opportunity to  respond  to the allegations against it in these proceedings  and to provide evidence to the Court to enable the Court to deal with the matter in a reasoned and proper way after hearing from both parties.  If the Auckland Council is to remain a party, the Court should also hear from the Auckland Council if it wishes to be heard on that matter.

[12]     Shortly put, the material before the Court is insufficient for the Court to properly engage with the application for interim relief to fairly make a determination on the application at the present time.  The concerns of the applicant and the deponents, who have sworn affidavits in support of the application, I accept are genuinely  held  and  may  well  be  representative  of  a  number  of  Aucklanders. However, there are other considerations, namely the proper interests of the Ports of Auckland in relation to such an important issue as to whether work which is being carried out pursuant to a contract with third parties after resource consents were obtained ought to be stopped at this stage.   It is also particularly relevant that Mr Farmer confirmed the undertaking given in the Urban Auckland proceeding is available in this proceeding, namely that if the Court ultimately determines that one or more of the consents for B2 and/or B3 was issued unlawfully and any subsequent applications by Ports of Auckland for the necessary consents are unsuccessful, Ports of Auckland will remove the B2 and B3 wharf extensions.

[13]     As Mr Farmer acknowledged, if ultimately, following the substantive hearing the Court rules the resource consents were wrongly granted then the work will have to stop in any event or at least it would be unlawful to carry on with the work pending a further application for resource consents.

[14]     I am not prepared to deal with the matter on an interim basis today.  I have considered whether a truncated timetable should be applied to the Ports of Auckland to require it to respond to the matters raised by the applicant to then revisit the application for interim relief at some stage between now and the 2nd  June hearing. However, I consider that to be unrealistic and not an effective or efficient use of either the Court’s time nor cost effective for the parties themselves.  The application

raises major issues for consideration.  They should be considered properly and with

the benefit of full evidence and argument, which would not be possible within the next week or two.  Against the background of a substantive hearing being available in the week of 2 June I am not minded to engage on an interim hearing of one to two days  prior to that date.   Again in  coming to that view  I take into  account the undertaking given and the fact that a number of the matters of concern raised by the applicant in this case will also be raised in the Urban Auckland proceedings and are to be dealt with substantively in that proceeding.

[15]     For those reasons the application for interim relief is declined and I intend to impose a timetable with a view to readying this application for hearing at the same time as the Urban Auckland proceeding:

(a)       any further amended claim by the applicant is to be filed and served by the end of business tomorrow;

(b)      respondent’s statement of defence to be filed and served by 1 May

2015;

(c)       any further evidence by the applicant to be filed and served by 1 May; (d)           respondent’s evidence to be filed and served by 15 May 2015;

(e)       any reply evidence (and any amended claim) to be filed and served by

22 May 2015;

(f)       common bundle of documents to be filed and served by the applicant by 22 May;

(g)      applicant’s submissions to be filed and served by 22 May 2015;

(h)      respondent’s submissions to be filed and served by 27 May 2015;

[16]     I direct that this substantive application is to be heard either at the same time or immediately following the Urban Auckland proceedings.   I am conscious that

Urban Auckland has not been heard on the matter this morning.  I reserve leave for them to seek a telephone conference in the event any issues arise.

[17]     I record the Auckland Council’s position.  For the avoidance of doubt I direct that it may release to the applicant in these proceedings the evidence that it has prepared for the Urban Auckland proceedings.  It is to do so today.

[18]     I reserve the issue of costs.

[19]     For the avoidance of doubt, the current file as it stands may be searched by the media.   That is not restricted to Radio New Zealand.   In terms of any future evidence that may be filed on the proceedings I will leave it for counsel to identify any aspects of that evidence that they consider to be commercially sensitive.  I will

then make an order on the basis of the memorandum after considering it.

Venning J