Bright v Auckland Council - [2018] NZHC 1054

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
Applicant

AND

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 1054
Decision Date: 16 May 2018

CaseChat Overview and Summary

Penelope Bright has refused to pay her rates to the Auckland Council since May 2007. She now owes approximately $69,000, or nearly $89,000 if one includes legal costs. Ms Bright’s objection has nothing to do with the legality of her rates; she refuses to pay until the Council is more “transparent”. Her own words are illustrative: she has 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. The forced sale of Ms Bright’s home is imminent under the Local Government (Rating) Act 2002. Ms Bright seeks to judicially review the Council’s decision to pursue sale of her home under the Act. She also seeks interim relief—essentially, a halt of the sale process until the substantive hearing. The interim relief application was heard on 14 May 2018.

Ms Bright’s application raises two legal issues. The first is whether interim relief is necessary to preserve the position of the applicant. The second is whether interim relief is appropriate having regard to the totality of circumstance. In answering the first, the court considered that interim relief is unnecessary, even though a sale would be a heavy blow for Ms Bright. Other relief was readily available. The court also considered Ms Bright’s choice engaged false linkage. In answering the second, the court found Ms Bright’s judicial review suit has very little prospect of success. There is no evidence of malice, or that Ms Bright has been unfairly targeted by the Council. The court also considered Ms Bright’s personal circumstances and the consequence if relief is not granted: Ms Bright will lose her home, perhaps at undervalue. However, the court found interim relief would not be appropriate even if the threshold for relief had been crossed, which it has not.

Ms Bright’s application for interim relief is dismissed. The orders made by Woodhouse J lapse. The sale may continue.

Orders