Chief Executive of Land Information New Zealand v Luke

[2008] NZCA 43

IN THE COURT OF APPEAL OF NEW ZEALAND

CA503/07
[2008] NZCA 43

BETWEENCHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND

Applicant

ANDETHEL LUKE, MARY JENNIFER MEDLAND, NANCYE MOIR NISBETT AND ALAN RAYMOND CLARK

Respondents

Hearing:18 February 2008

Court:Chambers, O'Regan and Arnold JJ

Counsel:H S Hancock for Applicant

J G Miles QC and A J Le D Wedekind for Respondents

Judgment:3 March 2008 at 9.30 am

JUDGMENT OF THE COURT

A        The application for leave to appeal is dismissed.

BThe applicant must pay to the respondents costs of $1,500 plus usual disbursements. 

REASONS OF THE COURT

(Given by Chambers J)

Application for leave to appeal

[1]       The Hobsonville Air Force base in Auckland is being progressively disestablished.  Most, if not all, of the land comprising the base was originally taken under public works legislation.  When land so taken is no longer required for public works, it must first be offered back to the original owner or his or her descendants.  The respondents to the current application are descendants of the original owner of a 12 hectare lot forming part of the base land and they have indicated a wish to buy back the land.  The Crown wanted $6.45 million (exclusive of GST) for the Luke land (as we shall call it).  The respondents thought it was worth only $3 million.  When they were unable to agree on the price to be paid, the matter went before a Land Valuation Tribunal, as provided for by s 40 of the Public Works Act 1981. 

[2]       The tribunal fixed the value as at June 2003 at $4 million, exclusive of GST.  The Crown appealed.  The High Court (comprising Harrison J and Mr Peter Young, a registered valuer) upheld the tribunal’s decision: HC AK CIV-2007-404-0057 11 May 2007.  Pursuant to s 18A of the Land Valuation Proceedings Act 1948, the Crown applied to the High Court for leave to appeal to this court.  Harrison J refused leave on 27 August last year.  The Crown has now sought leave from this court, again pursuant to s 18A.  The respondents oppose the application. 

Is the application out of time?

[3]       The respondents at one stage took the point the application for leave to appeal was out of time.  The argument was, however, based on two misconceptions.  These were that Harrison J had refused leave on 16 August last year and that the Crown had to file any application for special leave in this court within 20 working days of that refusal. 

[4]       Harrison J heard the leave application on 16 August.  It may well be that His Honour indicated at the hearing that he would be refusing leave, but he did not on that date actually refuse it.  It is clear on the face of his reserved decision that the decision to refuse leave was not actually made until 27 August (at 4.45 pm, to be precise).  The Crown’s application to this court, which was filed on 21 September, was accordingly in time, even if (as the respondents supposed) the time limit imposed by r 14(2) of the Court of Appeal (Civil) Rules 2005 applies. 

[5]       This brings us on to our second point: we are not convinced in any event that time restriction applied in this case.  We shall briefly explain why we have reached this tentative view. 

[6]       Rule 14(1) and (2) provide as follows:

(1)     If an enactment provides than an appeal against a decision may not be brought to the Court [of Appeal] without leave of the Court [of Appeal], an application for that leave must be made to the Court [of Appeal] within 20 working days after the decision is given.

(2)     If an enactment provides that the Court [of Appeal] may grant leave to appeal to the Court [of Appeal] against a decision after the court appealed from refuses leave, an application for the [Court of Appeal’s] leave must be made within 20 working days after that refusal. 

[7]       The respondents have assumed this application for leave was brought under s 67 of the Judicature Act 1908, with the consequence that the application was caught by r 14(2).  In fact, the application was brought under s 18A of the Land Valuation Proceedings Act, the form of which differs from s 67.  Section 18A(1) and (2) read as follows:

(1)Notwithstanding anything in any enactment, any party to any proceedings before the [High] Court who is dissatisfied with any award or order of the [High] Court may, with the leave of the [High] Court or of the Court of Appeal, appeal to the Court of Appeal; and section 66 of the Judicature Act 1908 shall apply to any such appeal.

(2)In determining whether to grant leave to appeal under this section, the Court to which the application for leave is made shall have regard to the following matters:

(a)     Whether any question of law or general principle is involved:

(b)     The importance of the issues to the parties:

(c)     The amount of money in issue:

(d)     Such other matters as in the particular circumstances the Court thinks fit.

[8]       It is strongly arguable the phraseology in subs (1) does not come within the protasis of either subcl (1) or subcl (2) in r 14, with the consequence neither applies. There appears to be a lacuna in the rules, which the Rules Committee may well wish to plug.  If this is right, there is currently no specific time limit for making an application under s 18A.  But delay would, of course, be a factor in any determination as to whether to grant leave to appeal.  There is no question of delay in the present case. 

[9]       We make one other observation at this point.  The form of s 18A(1) is replicated in other statutes: see, for example, s 97 of the Commerce Act 1986.  Although provisions of this kind permit immediate filing of an application for leave in this court, normal practice, which we encourage, is for the application to be filed in the first instance in the High Court: Telecom Corporation of New Zealand Ltd v Commerce Commission [1991] 2 NZLR 557 at 558 (CA). This court explained the reasons why the High Court should be approached first in Salem Ltd v Top End Homes Ltd (2005) 18 PRNZ 122 at [15].  That case involved an application for stay, another situation where this court has concurrent originating jurisdiction with the High Court.  The principles expressed apply equally to applications for leave to appeal. 

What criteria should be applied on a leave application under s 18A?

[10] Harrison J, in his leave decision, quoted s 18A of the Land Valuation Proceedings Act: at [4]. He then went on to say that both ss 66 and 67 of the Judicature Act applied: at [5]. On the basis of that, he concluded that the standard s 67 test enunciated in Waller v Hider [1998] 1 NZLR 412 (CA) applied.

[11]     In fact, s 67 does not apply, as the legislative history shows.  The Land Valuation Court was established, as a court of record, by s 3 of what was then called the Land Valuation Court Act 1948 (subsequently renamed the Land Valuation Proceedings Act 1948).  The Land Valuation Court heard appeals from Land Valuation Committees.  There was no further right of appeal from decisions of the Land Valuation Court (s 17), although the judge of the court could state a case for the opinion of the Court of Appeal on any question of law arising in the proceedings (s 18).  Clearly at that time s 67 of the Judicature Act could not bite on land valuation proceedings, as there was no Supreme Court decision on appeals from an inferior court to be appealed. 

[12]     In 1968, the Land Valuation Proceedings Act 1948 was amended.  The Land Valuation Court was abolished and its powers and jurisdiction vested in the new Administrative Division of the Supreme Court, established earlier that year by the Judicature Amendment Act 1968.  Section 18A, inserted by s 8 of the Land Valuation Proceedings Amendment Act 1968, provided, for the first time, for the possibility of appeal to the Court of Appeal other than by way of case stated on a question of law.  It is clear Parliament, when enacting s 18A, did not intend these appeals to come within s 67 of the Judicature Act.  That was for good reason, as the jurisdiction for determining leave and the criteria upon which the leave decision was to be based differed from the situation pertaining under s 67, as it then was.  First, under s 18A, leave could be granted either by the Supreme Court or by the Court of Appeal.  At that time, leave under s 67 could be granted only by the Supreme Court.  The Court of Appeal had no jurisdiction to grant leave if the Supreme Court refused it: see Herdman v C Dickinson & Co Ltd [1929] NZLR 795 at 795-796 (SC) and 801 and 803 (CA) and Inspector of Mines v Onakaka Iron and Steel Company Ltd [1943] NZLR 234 at 235. Further, by s 18A(2), Parliament set out specific criteria by which the leave decision in land valuation cases was to be determined.

[13]     The exclusion of s 67 was made clear by two drafting devices.  The first was the opening words in s 18A(1), namely “Notwithstanding anything in any enactment”.  That was to override s 67, which, but for s 18A, would have bit for the first time on land valuation proceedings.  Secondly, it is noteworthy that s 66 of the Judicature Act was said to apply but not s 67. 

[14]     Later, in 1979, s 67 of the Judicature Act was amended to give the Court of Appeal jurisdiction to grant leave in s 67 cases if leave had been refused by the High Court (as the Supreme Court was by then known).  That amendment did not affect, however, the interpretation of s 18A.  Although it more closely aligned the s 67 regime with the specific s 18A regime for land valuation cases, it did not assimilate them.  For one thing, the Court of Appeal under s 67 still had no jurisdiction to consider a leave application until the High Court had refused leave, whereas s 18A permitted an immediate approach to this court if the prospective appellant so elected.

[15]     Although we consider the legislative history and the drafting techniques referred to above make clear s 67 does not apply to land valuation appeals, the same result would in any event follow from the application of standard interpretative techniques.  There is a conflict between s 67 and s 18A.  There is a general maxim of interpretation requiring general statutory provisions (here, s 67) to yield to specific ones (here, s 18A): see the discussion in Burrows Statute Law in New Zealand (3ed 2003) at 313-317. 

[16]     The criteria to be applied on this leave application are, therefore, those specified in s 18A(2).  In practice, those statutory considerations are likely to produce the same outcome in most land valuation cases as a pure application of Waller v Hider principles would produce.

Does this case meet the s 18A(2) criteria?

[17]     The four criteria specified under s 18A(2) should be evaluated as a whole.  Not every question of law which is important to one of the parties and which involves a lot of money should be given leave.  The application for leave must be considered in light of this court’s function on second appeals.  As this court said in Waller v Hider, upon a second appeal, “this Court is not engaged in the general correction of error”: at 413. And further:

It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court. 

[18]     This court also noted that the scarce time and resources of this court were not to be wasted and additional expense for parties was not to be incurred “without realistic hope of benefit”: at 413.  That first point was reiterated by this court recently in Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355 at [36]. There this court noted the trend, both here and in the United Kingdom, “to reverse the steady increase in the number of [second appeals] reaching the Court of Appeal, and so to free up valuable and expensive judicial resources to give more and more effective attention to hearing first appeals”. These general principles, relating as they do to the fundamental role of this court and the need for proportionality in civil litigation, must underlie any leave decision under s 18A.

[19]     With that background, we now turn to the three questions of law which Mr Hancock, for the Crown, wishes to run if granted leave. 

[20]     He first complains that the tribunal ignored two comparable sales in the vicinity of the Luke land. This complaint does not give rise to a question worthy of this court’s attention. The tribunal clearly explained why it did not rely on those sales: those nearby properties had been bought for a different use from that permitted or likely to be permitted for the Luke land. This finding was essentially a factual finding or, perhaps, an evaluative finding as to likely permitted use based on the evidence provided. The High Court, which, it must be remembered, had the benefit of a very experienced valuer as co-member, endorsed “the Tribunal’s factual finding” on this issue: at [18]. The High Court considered the tribunal had “applied the correct legal principles in identifying the highest and best use of the land” and considered “the factual foundation for its conclusion” to be unchallengeable: at [20]. We are not sure this first question can properly be labelled a question of law, but, even if it can, it is not a question of sufficient importance for this court’s consideration.

[21]     The second issue Mr Hancock seeks to explore in this court is whether the tribunal was justified in ignoring the price the Luke land resold for in July 2005, more than two years after the valuation date.  The High Court dealt with this argument at [21]-[27] of its substantive decision.  The court explained clearly why the latter transaction was not relevant to the June 2003 assessment.  We can see no error in the High Court’s reasoning on this issue.  The tribunal did not say later sales could never be used as sales evidence.

[22]     In particular, we note the following observation in the High Court’s decision, providing a clear explanation as to why the tribunal had not referred to the June 2005 sale.  The court said at [25]:

That is because, as Mr Miles submits, the later transaction was a side issue at the hearing.  The transcript of evidence confirms this point.  The later sale received only passing mention there; in answer to a question by the Tribunal’s chairman, Mr Hancock described its relevance as “indicat[ing] a trend” and advised the Crown was not relying on it as “the primary way to arrive at a valuation”.  Otherwise the sale did not feature in evidence or submissions. 

[23]     We are satisfied this question does not meet the statutory criteria for a further appeal. 

[24]     Mr Hancock’s third issue was at heart a complaint about the actions and intents of the Waitakere City Council.  The suggestion appears to be that the council had become so intent on making the Luke land part of its proposed “marine cluster” area that it had skewed the market and led to the Crown’s receiving an unduly low price.  The suggestion appears to be that the council had abused its power as land use regulator and acted unreasonably and unlawfully. 

[25]     This is an interesting argument, but we do not think it is one open to the Crown in this case.  If the Crown considered the council was acting unlawfully, it could have taken appropriate review proceedings: it did not.  Another possibility would have been to call expert evidence before the Land Valuation Tribunal as to the chances of successfully reviewing the council’s regulatory actions and of establishing residential use as a permitted use of this land.  (The Crown’s valuations were based on an assumption that residential use was possible and “the highest and best use” of the Luke land.)  The problem is, however, there was no such expert evidence in this case.  The Land Valuation Tribunal has no power to assess the lawfulness of the council’s actions and attitudes: only the High Court on a judicial review application has that power.  The Land Valuation Tribunal might be able to assess the chance of the notional purchaser overturning a zoning or council attitude and to factor that into its assessment of value, but there would have to be evidence on which it could assess such a chance. 

[26]     Further, Mr Hancock’s argument under this head overlooks the fact that it was not just the Waitakere City Council standing in the way of the Crown’s “residential use” argument.  A further problem for any purchaser who wanted to develop the Luke land as a residential subdivision was the fact it was outside the Metropolitan Urban Limit as defined by the Auckland Regional Council. 

[27]     This third question of law, while raising matters of interest, does not fairly arise on the evidence in this case as presented to the Land Valuation Tribunal.  Indeed, this argument is in many ways fundamentally at odds with the Crown’s case before the tribunal.  The Crown, through an expert witness, ran the case on the basis that it would be easy for any notional purchaser to get permission to subdivide the land for residential purposes.  The tribunal rejected that expert evidence, as it was entitled to do, preferring instead the respondents’ expert evidence to the effect that such a change of zoning was highly unlikely. 

[28]     In our opinion, none of the suggested questions meets the criteria.  The tribunal’s decision is very fact-specific.  It is unlikely to be of precedential value.  (In that regard, the High Court decision is in a like category.)  The amount of money in issue (the difference between $4 million and $6.45 million) is significant but not exceptional. 

[29]     Taking matters overall, we have not been persuaded this is a case in which a further appeal is justified.  Accordingly we dismiss the application for leave to appeal. 

Solicitors:
Crown Law Office, Wellington, for Applicant
Morgan Coakle, Auckland, for Respondents