Ceramalus v New Zealand Post Limited
[2023] NZHC 325
•28 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-240
[2023] NZHC 325
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
NOBILANGELO CERAMALUS
Applicant
AND
NEW ZEALAND POST LIMITED
First Respondent
…/Cont
Hearing: 1 and 2 February 2023 Appearances:
Applicant in person
L C Sizer and B E Marriner for First and Third Respondents T M Thompson and J Barlow for Second Respondent
K Morrison and K H Lawson-Bradshaw for Fourth Respondent
Judgment:
28 February 2023
JUDGMENT OF LANG J
[on applications by respondents for strike out, summary judgment and security for costs]
This judgment was delivered by me on 28 February 2023 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
CERAMALUS v NEW ZEALAND POST LIMITED [2023] NZHC 325 [28 February 2023]
NZ STANDARDS ORGANISATION
Second Respondent
NEW ZEALAND GEOGRAPHIC BOARD NGA POU TAUNAHA O AOTEAROA
Third Respondent
AUCKLAND COUNCIL
Fourth Respondent
Solicitors:
Buddle Findlay, Wellington Auckland Council
Ministry of Business, Innovation and Employment
[1] Mr Ceramalus has owned properties situated at 2 and 4 O’Brien Road on Waiheke Island since 1997. He has lived in a dwelling constructed on 4 O’Brien Road since February 2001.
[2] Mr Ceramalus has a keen interest in local geography. In this proceeding he seeks judicial review of decisions he says were made by the four respondents, all of whom carry out public functions. The decisions subject to review relate to issues affecting streets and geographical features in the vicinity of his address.
[3] The four respondents have applied to strike out the claims on the basis that they do not disclose a tenable cause of action and/or amount to an abuse of the Court’s process. In the alternative, New Zealand Post Limited (NZ Post) seeks summary judgment on the claims against it. If these applications are not successful, the respondents ask the Court to make an order requiring Mr Ceramalus to provide security for their costs.
The claims
[4] The current version of the statement of claim represents Mr Ceremalus’ third attempt to articulate the basis on which he seeks judicial review. It is a very lengthy document that in some parts is difficult to follow. However, the flavour of the document can be gleaned from its opening paragraphs:
IN THE MATTER OF
THE CHRONIC CORRPUPTION OF MY HOME ADDRESS BY THE WILFUL FALSEHOODS OF THE FOUR RESPONDENTS
[1] Section 3(1) of the Judicial Review Procedures Act 2016, Purposes of this Act, perfectly manifest the essence of this present case:
(1)The purpose of this Act is to re-enact Part 1 of the Judicature Amendment Act 1972, which sets out procedural provisions for the judicial review of –
(a) the exercise of statutory power:
(b) the failure to exercise a statutory power:
(c) the proposed or purported exercise of a statutory power.
[2] Behind those words, as in all enactments, is the assumption that those charged with official duties will honestly make decisions, they will make them solely and wholly on the truth. They will not lie. As the Honourable Simon Upton drily remarked in his on-line forum Minister of the Environment, responding to well-grounded complaints about rampant maladministration of
the original Resource Management Act: ‘When Parliament passed the Act it assumed it would be administered by angels.’
[3] But the Respondents’ administrators in the present case were not angels. They lied; they lied chronically. They lied about the facts, they lied about the right application of statutes, they lied about the English language, they lied in the face of indisputable official documentary evidence, they lied in the face of common sense and clear duty, they lied by dereliction of duty.; and therefore they failed to exercise statutory power, because when not exercised on the truth it is not exercised at all; and when they purported to be exercising it they were only exercising mendacious opinion. Pretending to be exercising statutory power, pretending to be obeying and fulfilling the rule of law, but on lies, is only doing mischief under cover of law. The best that can be said of any of the Respondents is of the [Second] Respondent, which was so careless that it did not bother to check the English of a ‘standard’ before it published it, and therefore published a national and international lie.
…
[5] Counsel for the respondents have endeavoured to distil from the statement of claim the allegations that Mr Ceremalus makes against their respective clients. Mr Ceremalus does not suggest counsel misrepresented or were mistaken regarding the essential nature of his claims. I therefore proceed on the basis that counsel have correctly identified the claims that he advances against the respondents.
[6] Viewing the statement of claim as a whole, it is clear that Mr Ceremalus alleges the respondents engaged in a deliberate and concerted effort to harm his interests. As will be evident from the passage set out above, it includes allegations of fraud and dishonesty on the part of staff members employed by the respondents. These are serious allegations and should only be made where credible evidence exists to support them. Mr Ceremalus has not provided any such evidence to support this aspect of his claims. Furthermore, when pressed on the issue during the hearing, I took Mr Ceremalus to concede that he cannot point to evidence that the respondents colluded or conspired with each other to inflict harm upon him. To that extent the claims cannot survive in their present form. The real issue, however, is whether Mr Ceremalus can point to any tenable cause of action against the respondents.
Relevant principles
Strike out
[7]Rule 15.1 of the High Court Rules 2016 relevantly provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it
(a)discloses no reasonable arguable cause of action, defence, or case appropriate to the nature of the pleading; or
…
[8]There are established criteria for strike out:1
(a)A strike out application proceeds on the assumption the pleaded facts are true, unless those pleaded facts are entirely speculative or without foundation.
(b)The cause of action or defence must be clearly untenable.
(c)The jurisdiction is to be exercised sparingly and only in clear cases.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law.
(e)The Court should be slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation.
Summary judgment
[9]Rule 12.2 relevantly provides:
12.2 Judgement when there is no defence or when no cause of action can succeed
…
(2) The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.
[10] As a general rule in determining summary judgment applications, the Court will refrain from attempting to resolve genuine conflicts of evidence or to assess the credibility of the parties’ statements in their affidavits. But that does not mean spurious defences or contrived factual conflicts are permitted to prevent judgment
1 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267 per Richardson P, Thomas and Keith JJ; and Couch v Attorney-General [2008] NZSC 45, [2008] NZLR 725 at [33] per Elias CJ and Anderson J.
being obtained.2 A robust approach is to be taken, by which affidavits must have an aura of credibility.3
[11] The wording of r 12.2 (“may give judgment”) indicates a residual discretion in deciding whether to enter summary judgment. That approach applies equally to a defendant’s application under r 12.2(2).
[12] The relevant principles governing a summary judgment application are well established:4
The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as, for example, where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or in inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
The claim against NZ Post
[13] NZ Post is a state-owned enterprise under the State-Owned Enterprises Act 1986. It has been delegated as New Zealand’s sole legal postal operator.5 This means it is responsible for complying with this country’s obligations as a member of the Universal Postal Union (UPU) and the Asian Pacific Postal Union. However, NZ Post is by no means the only entity authorised to act as a postal operator. Other commercial organisations also undertake that function. Parts 3 and 4 of the Postal Services Act 1998 provide for the registration of postal operators and impose certain obligations on them.
2 Andrew Beck & others (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.08], citing Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC) at [14] and Pemberton v Chappell [1987] 1 NZLR 1 (CA).
3 At [HR 12.2.08], citing Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
4 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].
5 Postal Services Act 1998, s 48(1).
The claim
[14] The claim against NZ Post arises out of the fact that it operates an online research tool known as the Address and Postcode Finder (APF). This enables persons using the tool to obtain correct postal addresses and applicable postcodes.
[15] NZ Post obtains the information that is accessible using the APF from data held by Land Information New Zealand (LINZ).6 LINZ updates the information held on its database weekly and publishes all amendments, additions and removals weekly. NZ Post then updates the APF in accordance with the information published by LINZ. This enables NZ Post to align the information held on the APF with that held by local and regional territorial authorities and emergency services. The only postal information that NZ Post creates itself is the postcode used for each locality in New Zealand.
[16] Mr Ceremalus believes that the correct description of the address for his properties is 2-4 O’Brien Road. However, the APF is not programmed to display hyphenated or ranged addresses. When a person enters the address of 2-4 O’Brien Road in the APF the tool is programmed to display the correct postal address as being 2 O’Brien Road.
[17] NZ Post has also published standards and guidelines stating that mail should be addressed to a single address rather than a range of addresses. In doing so it has adopted the standards published by the second respondent, the New Zealand Standards Organisation (NZ Standards).
[18] Mr Ceremalus points out that the UPU has not prohibited the use of hyphenated addresses by member organisations. He contends that the practices NZ Post has adopted in relation to the APF mean that it has failed to meet its obligation under the UPU to store his address in a precise and complete manner. The statement of claim also alleges that the practices have resulted in NZ Post breaching its obligation under the UPU “to be vigilant and detect situations that make delivery of postal items and other deliveries subject to error, and to make sure they are corrected”.
6 LINZ recently assumed responsibility for this function from Fire and Emergency New Zealand.
[19] Mr Ceremalus also contends NZ Post has breached its obligations under instruments promulgated by the United Nations, being art 12 of the Universal Declaration of Human Rights7 and art 17 of the International Covenant on Civil and Political Rights (ICCPR).8 In addition, he contends NZ Post has breached its statutory obligations under the Privacy Act 2020, the State-Owned Enterprises Act 1986 and the New Zealand Bill of Rights Act 1990.
Decision
[20] Mr Ceremalus has issued the applications for judicial review under the Judicial Review Procedure Act 2016. This legislation prescribes the procedure to be used for any application for judicial review of the exercise of a statutory power, the failure to exercise a statutory power and the proposed or purported exercise of a statutory power.9 In this context the term “statutory power” includes a statutory power of decision. Mr Ceremalus must therefore demonstrate that NZ Post’s actions or decisions arguably constituted the exercise, purported exercise or failure to exercise a statutory power or statutory power of decision.10
[21] Mr Ceremalus acknowledges he cannot point to any statutory provision that applies directly to NZ Post’s decision to maintain the APF for the assistance of members of the public who wish to use its services. There is certainly nothing in the Postal Services Act that can be construed as referring to that issue or to any other commercial decision that postal operators may make regarding the provision of their services. Nor are those issues referred to in any other legislation. I therefore do not consider the manner in which NZ Post has chosen to programme the APF tool arguably amounts to the exercise of a statutory power or statutory power of decision. Judicial review is therefore not available. For completeness, however, I propose to deal briefly with the arguments that Mr Ceremalus has advanced.
7 Universal Declaration of Human Rights GA Res 217A (1948), art 12.
8 International Covenant on Civil and Political Rights 999 UNTS 171 (open for signature 16 December 1996, entered into force 23 March 1967), art 17.
9 Judicial Review Procedure Act 2016, s 3(1).
10 Section 5(2)(b).
Breach of obligations under UPU
[22] The claim based on alleged failure to meet obligations imposed by the UPU cannot succeed. UPU’s guidelines do not state that members should permit hyphenated or ranged addresses to be used. Rather, they are silent on the point. It follows that the approach NZ Post has taken to hyphenated or ranged addresses in the APF does not contravene anything in the UPU’s guidelines.
Breach of obligations under United Nations instruments
[23] The articles of the instruments on which Mr Ceremalus bases this aspect of his claim provide that no person shall be subject to arbitrary interference with their privacy, home or correspondence.
[24] It is axiomatic that obligations created by international instruments will not give rise to grounds for review unless they have been incorporated in or adopted by domestic legislation. As counsel for NZ Post points out, the ICCPR has been incorporated to some extent in the New Zealand Bill of Rights Act. That Act requires the principles of natural justice to be observed by any tribunal or authority having the power to make a determination that affects a person’s rights, obligations or interests.11 The manner in which NZ Post has chosen to programme the APF tool plainly does not engage these principles.
[25] It is also obvious that the APF does not interfere arbitrarily with Mr Ceremalus’ privacy or his home. Furthermore, not all persons who wish to send correspondence to Mr Ceremalus will use the APF to ascertain his correct address. Those who do will discover that his correct address for postal purposes is 2 O’Brien Road. Correspondence sent to 2 O’Brien Road will be delivered to Mr Ceremalus at that address. He will therefore not suffer interference with his correspondence.
Breach of obligations under the Privacy Act 2020
[26] The alleged breach of obligations under the Privacy Act similarly cannot succeed. Part 3 of the Privacy Act contains a series of information privacy principles.
11 New Zealand Bill of Rights Act 1990, s 27.
Mr Ceremalus contends NZ Post has breached Information Privacy Principle 6, which provides as follows:12
Information privacy principle 6
Access to personal information
(1)An individual is entitled to receive from an agency upon request–
(a)confirmation of whether the agency holds any personal information about them; and
(b)access to their personal information.
(2)If an individual concerned is given access to personal information, the individual must be advised that, under IPP 7, the individual may request the correction of that information.
(3)This IPP is subject to the provisions of Part 4.
[27] This principle plainly has no application in the present circumstances. As will be evident, it relates to requests made of agencies for personal information. It also includes the right to request correction of that information where it is erroneous. There is no evidence that Mr Ceremalus has made a request of NZ Post for any information that it holds about him or that it has declined to correct information that it holds about him. NZ Post has therefore taken no reviewable action under the Privacy Act.
Breach of obligations under the State-Owned Enterprises Act 1986
[28] Mr Ceremalus contends NZ Post has breached its obligations under s 4 of the State-Owned Enterprises Act. Section 4 sets out the objectives of state-owned enterprises, the principal of which is to operate as a successful business.13 To achieve that objective such enterprises are exhorted to be as profitable and efficient as comparable businesses,14 to be a good employer15 and to exhibit a sense of social responsibility.16
12 Privacy Act 2020, s 22.
13 State-Owned Enterprises Act 1986, s 4(1)
14 Section 4(1)(a).
15 Section 4(1)(b).
16 Section 4(1)(c).
[29] The establishment of objectives for state-owned enterprises involves a fundamentally different concept to the vesting of statutory powers and statutory powers of decision in such bodies. The fact that NZ Post may be required to strive for certain objectives obviously means that it is subject to a statutory obligation to take reasonable steps to ensure such objectives are achieved. However, it does not provide NZ Post with the ability to exercise a statutory power or a statutory power of decision.
[30] I am therefore satisfied the claim against NZ Post should be struck out because it does not disclose a tenable cause of action. It is not necessary to consider the application by NZ Post for summary judgment.
The claim against NZ Standards
[31] NZ Standards was established on 1 March 2016 under the Standards and Accreditation Act 2015 (the Standards Act). The purpose of the Standards Act is to provide for the development, approval and maintenance of New Zealand standards.17 The objective of this process is to make provision for standards and conformity assessment systems in New Zealand that are consistent with international practice, facilitate trade and protect the health, safety and well-being of individuals.18 A “standard” is a specification relating to goods, services, processes or practices approved or adopted by a standards organisation.19
[32] NZ Standards comprises collectively the New Zealand Standards Executive (the Executive) and the New Zealand Standards Approval Board (the Board).20 NZ Standards is responsible for the functions formerly undertaken by the Standards Council, which was established under the Standards Act 1988. Like its predecessor, NZ Standards develops standards in a wide variety of areas and promotes, encourages and facilitates the use of standards in New Zealand.
[33] In broad terms the Board is responsible for determining whether persons are qualified to be members of, or chair, standards development committees. The Board
17 Standards and Accreditation Act 2015, s 3(b).
18 Section 3(a).
19 Section 4(1).
20 Section 4(1).
must also determine whether standards should be approved, revised, revoked or archived.21 The Executive is required to establish and maintain a work programme for the development, maintenance and review of New Zealand standards.22 The Executive is also responsible for appointing standards development committees who review and revise existing standards.23 In addition, the Executive reports to the Minister responsible for administration of the Standards Act24 and makes arrangements for public access to standards.25
[34] The Standards Council worked closely with its Australian counterpart, the Council of Standards Australia. Many standards were published jointly by both organisations. NZ Standards has continued this practice.
[35] On 29 May 2003 the Australian and New Zealand Standards Councils jointly published a standard known as AS/NZS 4819:2003 Geographical Information – Rural and Urban Addressing (the 2003 Standard). The objective of the 2003 Standard was to provide users with a comprehensive guide that encompassed all aspects of rural and urban addressing. It was of relevance not only to local authorities but also to those involved in the subdivision and/or re-development of land in both rural and urban areas. The 2003 Standard was updated on 18 November 2011, when a standard known as AS/NZS 4819:2011 Rural and Urban Addressing was published (the 2011 Standard). This was designed to provide a more robust and succinct addressing standard to meet the evolving needs of communities in both New Zealand and Australia.
[36] The 2011 Standard differs for present purposes in one material respect from the 2003 Standard. The 2003 Standard discouraged the use of street or road number ranges for New Zealand addresses only. The 2011 Standard recommends not using a number range as an address number in both Australia and New Zealand.
21 Section 12(1).
22 Section 7(1)(e).
23 Section 7(1)(g).
24 Section 7(1)(k).
25 Section 7(1)(j).
The claim
[37] Mr Ceremalus contends the approach NZ Standards has taken to this issue amounts to a ban on the use of number ranges, and that it ignores the fact that a number range is a necessary and correct application of standard English punctuation. He says it amounts to a breach of New Zealand’s obligations under the UPU and that it breaches the First Schedule to the Imperial Laws Application Act 1988. Mr Ceremalus asks the Court to make an order that NZ Standards be required to expunge from the 2011 Standard any recommendation that bans the use of standard English punctuation.
[38] Mr Ceremalus also contends that the error he has identified means that NZ Standards breached its obligations under s 13(1) of the Standards Act. This requires the Board to ensure that members of standards development committees have skills, knowledge and experience relevant to the standard to be developed or considered. Members must also have knowledge of the sector or sectors most likely to use the standard.
Decision
[39] There can be no dispute that NZ Standards exercises a statutory power because it undertakes the functions prescribed in the Standards Act. However, in doing so it does not make any determination that affects the rights or liabilities of any person. The standards are merely a set of recommendations that may be adopted or rejected by individuals or organisations as they see fit. The adoption of a standard will only be mandatory where it is cited in an Act, regulation or bylaw by the number given to it by the Executive.26
[40] Furthermore, the Standards Act does not prescribe how standards development committees are to undertake their functions. The criteria prescribed for selection of committee members are obviously designed to ensure that they are suitably qualified to contribute to the development or revision of standards in any given area. Once a committee has been established, however, the Standards Act leaves the development
26 Sections 29 and 31.
and publication of appropriate standards to the collective experience and skills possessed by the committee members and, ultimately, the Board.
[41] I have already rejected Mr Ceremalus’ argument regarding alleged breach of New Zealand’s obligations under the UPU.27 I also fail to see how the publication of the 2011 standard can engage the Imperial Laws Application Act. The First Schedule to this Act lists the Imperial enactments that remain in force in New Zealand. The legislation that created the Standards Council and NZ Standards were not Imperial enactments and are therefore not listed in the First Schedule.
[42] Mr Ceremalus questions the skills and experience of members of the committee responsible for producing the 2011 Standard. He contends the approach taken in the standard demonstrates that they did not possess sufficient knowledge of the English language and punctuation to recognise that a ranged or hyphenated address will constitute a correct description of that address. However, the correctness of substantive decisions is rarely amenable to judicial review because judicial review is primarily concerned with process. In the absence of any procedural error the courts will proceed on the basis that substantive decisions are appropriately made by the bodies to whom they have been entrusted.
[43] In the present case Mr Ceremalus has not pointed to any error in the process that led to the publication of the 2011 Standard. I therefore do not consider the approach taken by NZ Standards to ranged or hyphenated addresses gives rise to the exercise of a statutory power or power of decision that is amenable to judicial review.
[44]The claim against NZ Standards must therefore be struck out.
The claim against New Zealand Geographic Board
Background
[45] Under s 7(1) of the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008 (the Geographic Act) the New Zealand Geographic Board Ngā Pou Taunaha o Aotearoa (the Geographic Board) assumed responsibility for the
27 Above at [22].
functions formerly carried out by the New Zealand Geographic Board. The Geographic Board is a body corporate with perpetual succession.28
[46] The principal function of the Geographic Board is to approve, assign, record, alter and discontinue the use of geographic names or recorded names.29 It may also investigate and determine the position or extent of geographical features.30 An official geographic name means the name of a geographic feature assigned, approved or altered under the Geographic Act and publicly notified under the Act.31
[47] Any person may submit a proposal to the Geographic Board to assign, alter, approve or discontinue a geographic name.32 Any such proposal must be in the form provided for the purpose by the Geographic Board, it must meet the requirements specified by the Board and it must include the evidence necessary to support the proposal.33
[48] The procedure the Geographic Board must follow when determining proposals lodged under s 15 of the Geographic Act is set out in ss 16 to 20, which provide as follow:
16Notification of proposal
(1)This section and sections 17 to 21 apply, in relation to a geographic feature within the territorial limits of New Zealand, to a proposal for an official geographic name—
(a)submitted to the Board under section 15; or
(b)made by the Board under section 10(1)(a) to (d) (unless the exceptions provided for under subpart 2 apply).
(2)Before the Board assigns, approves, or alters an official geographic name or recorded name, or discontinues the use of an official geographic name or recorded name, the Board must give public notice of the proposal—
(a)in the Gazette; and
(b)as soon as practicable after it has been gazetted, at least once—
28 New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008, s 7(2).
29 Section 10(1)(a)(d).
30 Section 10(e).
31 Section 4.
32 Sections 10(1) and 15(1).
33 Section 15(2).
(i) in a newspaper, periodical publication, or other news publication that circulates nationally, or by any other practicable means (including electronic media); and
(ii) in a publication that circulates particularly in the area relevant to the proposal.
(3)The notices must, in each case, specify—
(a)the geographic feature and the name proposed for it; and
(b)the date by which submissions must be received by the Board (which must not be sooner than 1 month after the date of the public notice given under subsection (2)(b)); and
(c)the manner in which submissions must be given; and
(d)the contact details of the Board.
17Submissions
A person making a submission on a proposal—
(a)must state, with reasons, whether that person supports or objects to the proposal; and
(b)may, if that person objects to the proposal, set out an alternative proposal or support the existing name, if any.
18Board to consider submissions and decide on objections
(1)As soon as is reasonably practicable after the closing date for submissions on a proposal, the Board must—
(a)consider any submissions; and
(b)in relation to any objections, decide whether to uphold those objections or reject them.
(2)The Board may obtain any further information necessary to enable it to decide on an objection.
19Determination by Board
(1)The Board must make a determination on a proposal if it—
(a)receives no objections on the proposal within the time notified; or
(b)receives objections on a proposal and agrees with the objections.
(2)The Board may obtain any further information necessary to enable it to determine a proposal.
(3)The Board’s determination of a proposal is final.
20Determination by Minister
(1)If the Board does not make a determination under section 19(1), it must report in writing to the Minister, setting out—
(a)a summary of submissions; and
(b)its decision on the proposal, together with its reasons for that decision.
(2)The Minister, after making any inquiry he or she thinks fit, may determine the proposal by confirming, modifying, or rejecting the decision of the Board.
(3)The Minister’s determination on a proposal is final.
The claims
[49] The claims against the Geographic Board flow from the fact that Mr Ceremalus submitted five proposals to the Board relating to the names then recorded for areas near a locality that he considers should be named “Rocky Bay”. The proposals overlap but may be summarised as follows:
(a)To discontinue the use of the recorded name “Omiha” and assign the name “Rocky Bay” as the official geographic name of that village or locality.
(b)To discontinue the use of the recorded name “Omiha Bay” and assign “Rocky Bay” as the official geographic name of that bay.
(c)To alter the recorded name “Rocky Bay (Whakanewha Bay)” to “Whakanewha Bay” and redefine its extent.
[50] One of the Geographic Board’s requirements was that an applicant must consult with any iwi who might be affected by a proposal. The Geographic Board was not satisfied Mr Ceremalus had taken this step but it waived the requirement on the basis that Council staff would undertake the necessary consultation with iwi.
[51] The Geographic Board met to consider the proposals on 18 May 2017. It agreed to consider the first proposal but declined to consider the other two. The Geographic Board then gave public notice of the first proposal in the New Zealand
Gazette on 22 June 2017. Members of the public were invited to make submissions in support of or opposition to the proposal no later than 22 September 2017. The Geographic Board subsequently received 234 submissions on the proposal, 224 of which opposed the proposal. Ten submitters supported it.
[52] During the submission process the Geographic Board received orthographic advice to the effect that the existing recorded orthography of the locality “Omiha” was incorrect and ought to be altered to “Omīha”. The Board agreed with this assessment. On 13 December 2017 it referred the proposal to the then Minister of Land Information, the Hon. Eugenie Sage, under s 20 of the Geographic Act. In its report to the Minister the Board recommended that the name be changed to Omīha. The Minister accepted the Board’s recommendation and notice of her decision to assign “Omīha” as the official name of the locality was published in the New Zealand Gazette on 18 January 2018.
[53] Mr Ceremalus challenges the manner in which the Geographic Board dealt with all three proposals. He contends the Geographic Board ignored highly relevant information that he had placed before it, including copies of maps and documents he filed in support of his proposals.
The first proposal
[54] The claim relating to the first proposal cannot succeed because the Geographic Board did not make the decision to alter the name of the locality to “Omīha”. That decision was made by the Minister. The Geographic Board provided the Minister with its recommendation and it seems that the Minister ultimately adopted it. However, s 20(2) of the Act permits the Minister to make any enquiry he or she thinks fit. There is no way of knowing whether the Minister took that course in the present case because she is not a party to the present proceeding. This aspect of Mr Ceremalus’ claim must accordingly be struck out.
The second and third proposals
Failure to take into account relevant information
[55] As I have already observed, Mr Ceremalus alleges in his statement of claim that the Geographic Board did not have in its possession, and therefore failed to take into account, the documents he filed in support of his proposals. These included historical maps dating back as far as 1857. However, the evidence adduced for the Board makes it clear that the Board was in possession of these documents when it made its decisions. Faced with this Mr Ceremalus acknowledges the error in his pleadings but advances an alternative argument that the Board failed to give the material sufficient weight when it made its decisions.
[56] Reviewable error will occur where a decision maker erroneously takes into account irrelevant information or where it fails to take into account relevant information. However, the weight to be given to relevant information is a matter for the decision maker. In any event, the Geographic Board plainly did give weight to the material Mr Ceremalus provided because it informed the Board’s decision to consider the first proposal. Judicial review is therefore not available on Mr Ceremalus’ alternative argument.
Failure to make further enquiries
[57] The Geographic Board has the power under ss 18(2) and 19(2) of the Geographic Act to seek further information. Mr Ceremalus contends the Board fell into error in the present case by failing to exercise this power.
[58] As I have already noted, however, the Geographic Board did not determine the first proposal. It referred the issue to the Minister for determination under s 20 of the Geographic Act. Putting this issue to one side, Mr Ceremalus does not say what type of additional information the Board ought to have obtained. The evidence discloses that, in addition to the information Mr Ceremalus provided, the Board received further background material obtained through research and enquiries undertaken by its Secretariat. This included Māori Land Court minutes, archaeological reports, postal and electoral records and information received from NZ Post and the police. Given
this fact Mr Ceremalus needed to point to additional relevant information the Board could have obtained if it had exercised its powers under ss 18(2) and 19(2).
[59] The insurmountable hurdle facing Mr Ceremalus’ argument in relation to the second and third proposals is that ss 18(2) and 19(2) apply only to situations where a proposal has been publicly notified so as to enable interested members of the public to file submissions supporting or objecting to the proposal. This did not occur in relation to the second and third proposals because the Board declined to consider them. Sections 18(2) and 19(2) do not apply to them.
Refusal to consider and obtain submissions for the second and third proposals
[60] Mr Ceremalus contends the Geographic Board erred in law by failing to accept and publicly notify the second and third proposals. This argument requires an analysis of the scheme created by Part 2 of the Geographic Act.34
[61] The Act does not expressly provide the Geographic Board with the power to decline a proposal without publicly notifying it. However, I consider the existence of such a power is implicit in the scheme created by Part 2.
[62] The obligation to publicly notify a proposal arises under s 16. I consider the key provision in this context to be s 16(2). Notably, s 16(2) does not require the Board to publicly notify all proposals that it receives. It only requires the Board to publicly notify a proposal “before [it] assigns, approves, or alters an official geographic name or recorded name, or discontinues the use of an official geographic name or recorded name”. I consider this confirms that public notification is only required where the Board considers there may be reason to grant the proposal. This would result in an alteration of the existing state of affairs. In that event public notification is necessary to ensure that the affected community has an opportunity to make submissions on the proposed change. Where the Board concludes there is no good reason to alter the existing state of affairs it is not required to publicly notify the proposal.
34 The relevant sections in Part 2 are set out at [47].
[63] This reflects the fact that the Geographic Act anticipates the Geographic Board may receive proposals that are frivolous, vexatious or otherwise devoid of merit. It would be wrong, and an unnecessary waste of resources, for the Board to be required to publicly notify a proposal even where it had no prospect of being adopted. The Board is therefore able to decline proposals without publicly notifying them.
[64] It follows that the Geographic Board had the power to decline the second and third proposals without publicly notifying them.
Taking into account submissions that were inadmissible
[65] Mr Ceremalus contends the Geographic Board erred in law by taking into account submissions that favoured the retention of the name “Omiha”. He says those submissions amounted to inadmissible evidence.
[66] This submission overlooks the fundamental difference between evidence given in proceedings before a court and submissions made to a statutory decision maker such as the Geographic Board. The Evidence Act 2006 governs the admissibility of evidence in all proceedings conducted by a court.35 The proposals Mr Ceremalus lodged with the Board did not constitute a proceeding before a court. Submissions that were made in opposition to his proposals were similarly not made in relation to a court proceeding. The admissibility regime under the Evidence Act has no application in the present context.
[67] Furthermore, the Board had a statutory obligation under s 18(1)(b) of the Geographic Act to decide whether to uphold or reject objections once they were lodged in accordance with s 17. It could not simply put them to one side. This ground of review is accordingly untenable.
Determining that “Omiha” was an existing recorded name
[68] Mr Ceremalus contends the Geographic Board erred in stating that the locality name “Omiha” was an existing recorded name. He says the locality was described as
35 Evidence Act 2006, s 5(3).
“Rocky Bay” in several official documents and that this overrides the fact that the name “Omiha” was an existing “recorded name” under the Geographic Act.
[69] Section 4 of the Geographic Act defines “recorded name” and “official document” as follows:
recorded name means the name of a geographic feature that
(a)is not an official geographic name; but
(b)appears in at least 2 publications or databases that are-
(i)publicly available; and
(ii)in the opinion of the Board, authoritative publications or databases
[70]The term “official document” is defined in s 4 as follows:
official document
(a)means a published document created by a public office or by a local authority in the course of business; and
(b)includes, in relation to documents published in New Zealand or prepared in New Zealand for publication outside New Zealand (whether or not created by a public office or by a local authority in the course of business),—
(i)geographic and scientific publications and manuscripts; and
(ii)publications intended for travellers or tourists
[71] The only references to the term “official document” in the Geographic Act are to be found in ss 32 and 33, which provide:
32Official geographic names must be used
(1)If there is an official geographic name for a geographic feature or Crown protected area, that name must be used in all official documents.
…
(2)However, subsection (1) does not apply if an official document containing a name other than an official geographic name states that the particular name is not the official geographic name of the geographic feature or Crown protected area to which it applies.
33Injunction may be granted by Court
(1)The High Court may, on the application of the Board, grant an injunction to prevent a person from publishing a name in an official document in breach of section 32.
(2)The High Court may rescind or vary an injunction granted under this section.
(3)If the Board applies to the High Court for the grant of an interim injunction, the Court must not,—
(a)as a condition of granting an interim injunction, require the Board to give an undertaking as to damages; or
(b)take into account the fact that the Board is not required to give an undertaking as to damages.
[72] As will be evident, s 32(1) requires public offices and local authorities to use official geographic names, as determined by the Geographic Board or Minister, in all official documents created in the course of their business. Section 4 defines “public office” as having the same meaning as in s 4 of the Public Records Act 2005 and “local authority” as having the same meaning as in s 5 of the Local Government Act 2002. Section 33 enables the High Court to grant an injunction to prevent a name being published in an official document in breach of s 32.
[73] The fact that the other documents to which Mr Ceremalus refers may describe the locality in question as “Rocky Bay” rather than “Omiha” is of no relevance to the process undertaken by the Board. Those documents may have been created before the prohibition now contained in s 32 was first enacted. Alternatively, they may not fall within the definition of “official document” in s 4. And, if they do, they may have been prepared in breach of the prohibition contained in s 32(1). None of these possibilities advances Mr Ceremalus’ argument that the Board erred in stating that “Omiha” was an existing recorded name.
Failing to act in accordance with s 11(1) of the Geographic Act
[74]Section 11 of the Geographic Act provides as follows:
11 Other functions of Board
(1)In order to carry out its principal functions under section 10, the Board may —
(a)adopt policies, rules, standards, protocols, guidelines or similar instruments for carrying out its functions, including, but not limited to, rules standards, protocols, or guidelines that it considers appropriate for the spelling and systematic designation of official geographic names:
(b)examine cases of doubtful spelling of names and determine the spelling to be adopted on official charts or official maps:
(c)investigate and determine the priority of the discovery of any geographic feature:
(d)collect original Māori names for recording on official charts and official maps:
(e)encourage the use of original Māori names on official charts and official maps:
(f)seek advice from Te Taura Whiri i te Reo Māori (the Māori Language Commission) on the correct orthography of any Māori name:
(g)undertake research into any proposal to name or alter the name of a geographic feature:
(h)undertake other functions necessary to enable it to act effectively under this Act or any other enactment.
(2)Without limiting section 260 of the Local Government Act 2002, the Board may alter the name of a district or region if, by resolution, a meeting of the relevant local authority—
(a)consents to the alteration; or
(b)requests the alteration.
(3)If the Board carries out the function provided for by subsection (2), the provisions of sections 16 to 20 apply as if the district or region affected were a geographic feature.
[75] Mr Ceremalus contends the Board acted in breach of s 11(1)(d) and (e) by collecting and encouraging a false or “fake” Māori name for his first proposal and that it ignored decisions of the Māori Land Court and the Government in declining the remaining two proposals.
[76] The answer to Mr Ceremalus’ argument relating to the first proposal lies again in the fact that the determination was made by the Minister and not the Geographic Board. The answer to his argument regarding the other two proposals is that s 11(1) is cast in permissive and not mandatory terms. In other words, the Board may
undertake the functions set out in s 11(1) but it is not required to do so in any given case.
[77] More importantly, there is no suggestion in any of the Board’s minutes that it was exercising its functions under s 11(1)(d) and (e) when it made the decisions relating to Mr Ceremalus’ proposals. Rather, it was dealing with those proposals and not undertaking any wider function. Section 11 is not engaged in the present case.
[78] As Mr Niven pointed out for the Geographic Board, Mr Ceremalus’ underlying complaint appears to be that the Board wrongly decided that the name of the locality should not be altered from Omiha to Rocky Bay. However, it is clear from the evidence that his view was not universally shared by those in the locality. This is demonstrated by the large number of submissions filed in opposition to his proposal. Mr Ceremalus may disagree with the Board’s decision but this does not mean it was wrong.
[79] There is in any event no such thing as a true or correct name in the present context because the names of localities and geographical features may be allocated by those living nearby informally and without regard for those that may be assigned by the Board or Minister. This does not alter the fact that the Board and Minister have been given the responsibility under the Geographic Act determining the official names to be assigned to geographical features and localities. In the absence of some error of law or procedure by those parties this Court has no jurisdiction to disturb those decisions.
The claim against Auckland Council
[80] In order to understand the claim Mr Ceramalus makes against Auckland Council (the Council) it is necessary to have regard to the history of the road on which Mr Ceramalus lives. A road called Hillside Road originally extended from the village known as Rocky Bay on the southwestern coastline of the island up the hill in a northerly direction to an intersection with Valley Road. A road called Bush Road then continued up the hill to what is now the intersection with Te Whau Drive. The properties that Mr Ceremalus owns are situated at the top of the hill where the road
ended. Mr Ceramalus’ properties were originally allocated the addresses 2 and 4 Bush Road.
[81] In or about 1955 the Council acquired further land from the O’Brien family. This enabled it to extend Bush Road to connect with the road between Ostend and Onetangi. Hillside Road, Bush Road and the new extension were then renamed O’Brien Road. Following this Mr Ceremalus’ properties were allocated the addresses of 2 and 4 O’Brien Road.
[82] Mr Ceremalus contends that problems subsequently arose because the owners of properties and house boats situated along and near the extension have allocated themselves street numbers that incorporate the numeral “2”. This has resulted in confusion for those delivering mail and other items to addresses in both the extension and the original road.
The claim
[83] The current version of the statement of claim alleges that the Council has engaged in a “chronic refusal to fix” duplicated street numbers on O’Brien Road. Mr Ceramalus wants the Council to resolve the present confusion by renaming the extension Rangihoa Road. He considers this name to be appropriate given the fact that Māori land in the vicinity was formerly known as the Rangihoa 1 and 2 blocks. O’Brien Road would then run from the intersection of Rangihoa Road down to the southwestern coastline.
[84] Mr Ceremalus wants the Council to erect signposts at both ends of the extension to advise motorists of the new name given to the extension. He also wants the Council to erect a sign on the intersection of the Ostend-Onetangi Road advising that Rangihoa Road leads to O’Brien Road. He seeks relief in the form of orders requiring the Council to take these steps.
[85] The Council contends the claims against it cannot succeed because it has never refused to take the steps Mr Ceremalus contends it should take. Rather, it has encouraged Mr Ceremalus to utilise the procedures it has put in place for determining
applications seeking to change street names and numbers. It therefore says the application for judicial review is premature and should be struck out at this point.
Analysis
[86] The Council has the power to name roads and allocate property numbers under ss 319(j) and 319B of the Local Government Act 1974. These provide as follows:
319 General powers of councils in respect of roads
…
(j)to name and to alter the name of any road and to place on any building or erection on or abutting on any road a plate bearing the name of the road:
…
319B Allocation of property numbers
(1)For electoral, postal, and other purposes the council may allocate a number to any area of land or building or part of a building within its district and may change the number allocated to any such area of land or building.
(2)The council shall comply with any request from a Chief Surveyor to allocate a number to or change the number of any area of land or building or part of a building in its district.
(3)The principal administrative officer shall advise the Chief Surveyor of the land district in which the land or building is situated of the numbers allocated under subsection (1) or subsection (2) of this section.
[87] In practice, decisions to allocate or change road names under s 319 are made by local boards. Road names are generally treated as enduring and good reason is needed to change the name of a street or road once it has been allocated. This reflects the fact that a change of name may have significant consequences for those affected by it. They will be required to advise those with whom they deal of their change of address and this may involve considerable time and expense.
[88] To ensure transparency and consistency in this process the Council has established principles governing the procedure to be used to determine an application to change the name of a street or road. These are set out in a publication called “Auckland Council Road Naming Guidelines” (V1, August 2019). The guidelines are
based in part on standards promulgated by the NZ Standards Organisation (the Address Standards).36
[89] The guidelines require the applicant to lodge a formal application supported by specified information including the reason why a change of name is justified. The application must provide three proposed name options together with a description of the meaning of those names and an explanation as to how they are linked to the local area. The applicant must also provide a summary of the consultation undertaken with the local community in the vicinity of the road that is the subject of the application.
[90] Where the application seeks to alter or rename an existing road it is necessary for the applicant to have consulted with the owners of all properties that will be affected by the application and to have obtained support for the proposed change from most of those persons.
[91] Once a compliant application has been received, Council staff will assess the proposed names and the information provided in support of the application. Council staff will also engage with mana whenua, particularly where the proposed name is a Māori word or term. They will then provide the local board with a report summarising the application.
[92] Once the local board has determined the application the applicant will be notified and the decision will be published in the board’s meeting minutes. If the application is approved, Council staff will arrange for new street signs to be manufactured and installed. Street numbers will then be assigned by the Council’s property data team.
[93] The process adopted for renumbering roads is less complicated because it does not require a formal application and may be initiated either by Council staff or members of the public. In allocating street numbers the Council uses both the Address Standards and guidelines for addressing in-fill developments promulgated by LINZ.
36 Australian/New Zealand Standard: Rural and urban addressing, 2011 AS/NZS 4819:2011.
[94] In the present case there is no dispute that Mr Ceremalus has sought to persuade the Council to address the issues he has encountered with the numbering of properties on O’Brien Road. He has also asked it to change the name of the extension to Rangihou Road. Mr Ceremalus contacted the Council on 27 July 2020, 15 and 22 February 2021 and 8 June 2021 regarding these issues. He also attended a meeting of the local board on 23 June 2021 where he addressed board members about the problems he was encountering.
[95] However, Mr Ceremalus does not dispute the Council’s evidence that he has never filed a formal application seeking the renaming of the extension or the renumbering of properties on O’Brien Road. This is despite the fact that Council staff wrote to him on 17 June and 6 July 2021 advising him what he needed to do. They also provided him with an application form and a copy of the Council’s guidelines.
[96] The evidence makes it clear that the Council has never refused to rename the extension. Rather, the local board staff have asked Mr Ceremalus to comply with Council processes by lodging an application that complies with its guidelines. Once he takes this step the Council will deal with the application in the usual way. It follows that the Council has not exercised any statutory power or made any decision that affects his rights or liabilities. The application for review is accordingly premature and cannot succeed.
[97] It is also noteworthy that Mr Ceremalus seeks relief of a type that the Court would not be likely to grant. Where the Court identifies an error in the process by which a reviewable decision is made it will not generally substitute its own decision for that of the decision maker. Rather, it will set the decision aside and remit the issue back to the decision maker for a new decision to be made using the correct procedure. Mr Ceremalus seeks orders that go much further than this because he asks the Court to make an order requiring the Council to rename the extension Rangihou Road. The Court would not lightly take that step because it does not know whether those who are likely to be affected by the proposed change of name support or oppose it. Nor does it know whether mana whenua agree that the proposed change of name is appropriate.
[98] For the reasons I have already given, however, the issue of relief does not arise. I am satisfied the claim against the Council has no prospect of success and it would be an abuse of the Court’s procedure to permit it to continue. It must therefore be struck out.
Result
[99] The claims against all four respondents are struck out on the basis that they do not disclose an arguable cause of action. It is therefore not necessary to determine the application for summary judgment by NZ Post.
Costs
[100] The respondents have succeeded and are entitled to awards of costs against Mr Ceremalus. They should endeavour to reach agreement with him regarding that issue. Should this not prove successful they have leave to file and serve concise memoranda dealing with costs. Mr Ceremalus will have 14 days within which to respond to those memoranda. I will then determine costs on the papers.
Lang J