Bright v Auckland Council
[2018] NZHC 1054
•16 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-000753 [2018] NZHC 1054
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for interim relief
BETWEEN
PENELOPE MARY BRIGHT
ApplicantAND
AUCKLAND COUNCIL
Respondent
Hearing: 14 May 2018 Appearances:
Applicant in person
KF Quinn for Respondent
Judgment:
16 May 2018
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 16 May 2018 at 9 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Auckland Council, Legal Services. Copy to: Applicant
BRIGHT v AUCKLAND COUNCIL [2018] NZHC 1054 [16 May 2018]
An unfortunate case
[1] Ms Penny Bright has refused to pay her rates since May 2007. She now owes the Auckland Council approximately $69,000, or nearly $89,000 if one includes legal costs.1 Ms Bright’s objection has nothing to do with the legality of her rates; she refuses to pay until the Council is more “transparent”. Ms Bright’s position therefore reflects moral choice—not legal grievance. Her own words are illustrative:2
[I have] taken a public stance to boycott payment of the rates until such time the defendant complied with the transparency requirements of the Public Records Act 2005 ... to ensure the following details of awarded contracts were published on the websites of Auckland Council and Auckland Council controlled organisations ... thus available for public scrutiny…
[2] Forced sale of Ms Bright’s home is imminent under the Local Government (Rating) Act 2002 (the Act). Indeed, the process is well advanced. Sadly, Ms Bright is terminally ill with cancer.
[3] Ms Bright seeks to judicially review the Council’s decision to pursue sale of her home under the Act. Put broadly, judicial review involves an examination of the legality of a decision or process. No date is yet set for that hearing. Ms Bright seeks interim relief—essentially, a halt of the sale process until then. She continues to act for herself.
[4] I heard Ms Bright’s application on 14 May 2018. I said I would release my judgment by 9 am today.
Additional background
[5]Little additional background is necessary beyond the briefest of timelines.
[6] On 18 January 2016, Judge G M Harrison in the Auckland District Court held Ms Bright was liable to pay the Council $34,182.56 in unpaid rates and penalties.3
1 As at 24 April 2018, Ms Bright owed $68,915.68, the bulk of which comprises penalties for overdue payment. Ms Bright must also contribute to the Council’s legal costs in respect of this litigation. Her total indebtedness to the Council is $89,539.16.
2 Statement of Claim at [5] (emphasis added).
3 Auckland Council v Bright [2016] NZDC 486.
The Judge concluded Ms Bright’s transparency campaign did “not entitle her to decline to pay rates otherwise lawfully imposed on her as a ratepayer”.4
[7] Ms Bright appealed. The appeal was heard by Venning J, the Chief High Court Judge. The Judge dismissed the appeal on 11 July 2016.5
[8] Venning J held Ms Bright was “simply wrong” to consider the Public Records Act 2005 had anything to do with her case.6 And, there was “no connection at law between the Council’s obligations under the Public Records Act, its powers to impose and collect rates under the Local Government (Rating) Act and Ms Bright’s obligation as a ratepayer to pay rates under that Act”.7 The Judge ended:8
None of the issues that Ms Bright raise amount to a defence to the Council’s claim for rates. Ms Bright may wish to make a point about the Council’s obligations under the Public Records Act and the Local Government Act, but these proceedings are not an appropriate vehicle to do so. Ms Bright, like other ratepayers, has an obligation to pay the rates that have been validly assessed as payable by her. Her refusal to do so simply increases the administration costs of the Council.
[9] On 30 September 2016, the Council advised Ms Bright it would pursue a rating sale if she did not pay within three months or postpone her rates.
[10]On 7 March 2017, the Council applied to sell Ms Bright’s home.
[11] On 1 May 2017, the Registrar of the High Court gave Ms Bright notice her home would be sold in six months’ time. Meanwhile, the Council continued to encourage Ms Bright to make payment or engage postponement. It wrote to her on 3 May, 29 June, 2 October and 28 November 2017. And, on 22 January, 2 February, 26 February and 22 March 2018. Ms Bright did not reply.
[12] Tenders closed on 24 April 2018. Ms Bright filed this application the day before.
4 Auckland Council v Bright, above n 3, at [26].
5 Bright v Auckland Council [2016] NZHC 1560.
6 At [14].
7 At [17].
8 At [28].
[13] On 27 April, Woodhouse J held the Registrar may accept the best offer but otherwise take no steps until this application is determined.
[14] On 10 May 2018, the Council offered Ms Bright a “short” adjournment of this hearing—on the assumption Woodhouse J’s orders would endure—until a clearer picture emerged of Ms Bright’s anticipated medical treatment. Ms Bright declined that invitation. She wanted the hearing to proceed.9
Principle
[15] Interim relief is available when it is necessary to preserve the position of the person seeking it.10 As Edwards J recently observed, the word “necessary” bears its natural meaning without gloss or restriction; interim relief protects an applicant who may otherwise be unfairly prejudiced by delay in determination of their substantive case.11 If this threshold is crossed, curial assessment then looks to totality of circumstance to determine if interim relief is appropriate.12
A précis of the case for interim relief
[16] Ms Bright contends interim relief is necessary or she will lose her home of 28 years. Forced sale may attract a price appreciably below market value.13 Unsurprisingly, Ms Bright also places weight upon her recent diagnosis. Ms Bright wishes to remain “safe and secure” in her home during treatment. Or, until the end.
[17] Ms Bright considers her judicial review suit has a reasonable prospect of success. It alleges the forced sale is a product of malice on the part of the Council’s Chief Executive Officer, Mr Stephen Town, and a disproportionate reaction by a “bullying” local authority against a public watchdog.
9 See Bright v Auckland Council HC Auckland CIV-2018-404-000753, 10 May 2018 (Minute).
10 Judicial Review Procedure Act 2016, s 15(1). Ms Bright’s papers refer to an interim injunction. However, the application is properly treated as one for interim relief under this Act. In any event, the outcome would be the same.
11 Foodstuffs North Island Ltd v Alcohol Regulatory & Licensing Authority [2018] NZHC 988 at [13].
12 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).
13 Prospective purchasers have not been able to view the property, presumably because Ms Bright has not let them.
Is relief necessary?
[18] I am satisfied interim relief is unnecessary, even though a sale would be a heavy blow for Ms Bright.
[19] First, other relief is readily available. Most obviously, Ms Bright could choose to pay her rates and arrears. Or, choose to enter a postponement arrangement with the Council. As its name implies, a postponement arrangement defers payment of rates, typically until the ratepayer sells the property or dies. Ms Bright’s circumstances would satisfy the Council’s postponement policy. But either way, the rating sale of her home would not proceed. Each option may well be anathema to Ms Bright. However, this case is unusual in that alternative relief lies within reach, but remains unexercised—through choice.
[20] Second, that choice engages false linkage. Ms Bright described her stance at the hearing as a “one-person rates revolt”, but said she was prepared to “work with” the Council if it acceded to her demand to publish specified information about private contractors. However, as two Judges have already found, there is no connection in law between this species of demand and payment of rates. The point is perhaps better illustrated another way: Ms Bright could pay or postpone her rates and still exercise her right to campaign for “transparency”. Again, there is no linkage recognised by law between a ratepayer’s obligation to pay rates and obligations on a public body under the Public Records Act.
[21] Third, it is not open to an applicant—even one with acute and distressing personal circumstances—to flout the law, and then, at the eleventh hour, invoke necessity as a basis for relief against action contemplated by Parliament; long foreshadowed by the Council in the event of non-compliance; and ultimately directed at fair distribution of cost of public amenities.
[22]For completeness, I consider discretionary matters below.
Totality of circumstance
Prospect of success
[23] Contrary to Ms Bright’s submission, her judicial review suit has very little prospect of success. No evidence of malice is apparent from the record.
[24] Ms Bright placed weight upon Mr Town’s October 2014 observation: “Ms Bright has made wild and inaccurate accusations about the Council and its probity”, in relation to which Ms Bright sued Mr Town for defamation. However, that suit was dismissed by Associate Judge Smith on 13 February 2017.14 Materially, the Judge considered there was “nothing to suggest … the Council’s expressed willingness to consider other options for Ms Bright, including a rate’s postponement arrangement was in any way indicative of ill will on the part of Mr Town”.15
[25] Ms Bright also invited attention to the fact Mr Town initiated the rating sale process. However, under the Act, only the Chief Executive Officer may do so.16
[26] The balance of the suit alleges Ms Bright has been unfairly targeted by the Council. It too has very little prospect of success. Ms Bright has been repeatedly invited to pay her rates, postpone them, or enter a suitable arrangement. Ms Bright has made it clear she will not do so unless the Council first accedes to her “transparency” demand.
[27] Ms Bright invited attention to affidavits from two city councillors, Ms Catherine Casey and Mr Wayne Walker, which speak of her sincerity and utility of her advocacy. This evidence is misplaced. Even if one accepts Ms Bright’s advocacy advances the public interest, Ms Bright still has legal obligations as a ratepayer. These are not affected by the ratepayer’s idiosyncratic view of the Council or its policies; whether the ratepayer is a “good citizen”; 17 or by characterisation of the ratepayer as “public watchdog”. Any other approach would be antithetical to the rule of law.
14 Bright v Town [2017] NZHC 141.
15 At [73].
16 Local Government (Rating) Act 2002, s 67(2)(a).
17 Ms Bright noted she had won a “good citizen” award.
[28] Furthermore, the question is not whether Ms Bright believes she is being unfairly targeted by the Council, but whether there is evidence to support that contention. None is apparent from the record. Unsurprisingly, almost all recalcitrant ratepayers have settled in the face of a rating sale. That Ms Bright has not done so does not make the Council’s action unfair, disproportionate or retaliatory.
[29] Indeed, the same point was raised before Judge Harrison in the District Court in 2016. Ms Bright then described the proceedings as a “malicious and vindictive use of municipal power”.18 The Judge rejected the argument, holding: “I ... discern no improper purpose in these proceedings. The Council has a duty to collect rates in fairness to all other ratepayers within the Council’s district”.19
[30] Ms Bright submitted the Council could obtain a charging order, and the absence of one implied disproportionality. However:
(a)A charging order is not a complete remedy for the Council. Such an order is subject to the six-year time bar of the Limitation Act 2010 and does not compel payment of rates.20
(b)The Council’s rating policy—which it adduced in evidence—does not require a charging order as a prerequisite to a rating sale.21 Nor does statute.22
(c)A charging order is for the benefit of the creditor, not debtor.
18 Auckland Council v Bright, above n 3, at [24].
19 At [25].
20 Local Government (Rating) Act, s 66(2).
21 Ms Bright appended material from the Council to her (two) affidavits, but not the policy itself. The Council approved the policy on 7 March 2013. It provides a rating sale will not be conducted unless arrears are at least $5,000 or one percent of the value of the property. The policy also “contains safeguards to ensure … ratepayers with genuine payment issues are given every opportunity to address them”.
22 The Act provides for charging orders—see, for example, s 66—but does not require them.
Private and public repercussions
[31] Ms Bright’s personal circumstances favour relief. So too consequence if relief is not granted: Ms Bright will lose her home, perhaps at undervalue. The significance of this mix is obvious. And distressing.
[32] However, as observed above, there is very little prospect judicial review will succeed. Interim relief would be transitory—and illusory—unless Ms Bright pays her rates or postpones them. The Act contemplates a sale in this context; Ms Bright has long known as much; and her choice has forced the Council’s hand. To recapitulate, there is no linkage in law between Ms Bright’s position in relation to “transparency” and payment of rates, a view made clear by earlier judgments in this case.23
Overall assessment
[33] Ms Bright’s circumstances are unfortunate. However, those in relation to the Council are entirely of her own making. Interim relief would not be appropriate even if the threshold for relief had been crossed, which it has not. It is not open to a ratepayer to “boycott” rates or engage in a “rates revolt” for more than a decade and then argue statutorily envisaged consequence should not follow: no one is above the law. And, other immediate relief is at hand but unexercised through moral choice, not legal grievance.
Orders
[34]Ms Bright’s application for interim relief is dismissed.
[35]The orders made by Woodhouse J lapse. The sale may continue.
……………………………..
Downs J
23 See [6]–[8].
0
3
1