Clements v Auckland Council - [2018] NZHC 2084

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002792

[2018] NZHC 2084

BETWEEN
MIRIAM CLEMENTS

Applicant

AND

AUCKLAND COUNCIL

First Respondent

COUNCILLOR RICHARD HILLS
Second Respondent

COUNCILLOR CHRIS DARBY
Third Respondent

COUNCILLOR LINDA COOPER
Fourth Respondent

COUNCILLOR ROSS CLOW
Fifth Respondent

COUNCILLOR ALF FILIPAINA
Sixth Respondent

DEPUTY MAJOR BILL CASHMORE

Seventh Respondent

Hearing: 13 August 2018

Appearances:

No appearance by or for Applicant J Wilson for Respondents

Judgment:

15 August 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 15 August 2018 at 2.00pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:…………………………

CLEMENTS v AUCKLAND COUNCIL [2018] NZHC 2084 [15 August 2018]

Introduction

[1] Ms Clements seeks judicial review of a decision it is asserted Auckland Council (the Council) has made to dispose of various properties, including a car park at 40 Anzac Avenue, Takapuna, on the North Shore (the Takapuna car park land).

Procedural background

[2]I briefly (and only partially) summarise the course of the proceedings:

(a)The proceedings were commenced by the filing of a notice of appeal against directions made by Judge Cunningham in the District Court on the North Shore on 30 October 2017. Judge Cunningham had considered a statement of claim that Ms Clements was seeking to file in the District Court. A note sent out by the Registrar recorded that the Judge had noted that the relief which Ms Clements was seeking appeared to be best obtained from the Human Rights Review Tribunal (for alleged breaches of the Human Rights Act 1993), and by way of judicial review in this Court. She noted that the District Court had no jurisdiction to entertain either.

(b)At much the same time, Ms Clements filed an interlocutory application without notice. She sought a stay of any sale of the Takapuna car park land.

(c)On 31 January 2018, the appeal and the interlocutory application came before Toogood J. He took the view that the most efficient means for addressing Ms Clements’ substantive concerns – whether the alleged decision by the Council to sell the Takapuna car park land was lawful
– was to proceed by way of judicial review. He recorded that Ms Clements agreed to this so that matters could be resolved as expeditiously as possible. Toogood J accordingly ordered that the appeal proceedings should be treated as an application for judicial review.

(d)The Council gave a formal undertaking that the Takapuna car park land would not be sold before 22 February 2018, when the matter was set down for call in the judicial review list.

(e)The matter came before Fitzgerald J on 22 February 2018. Ms Clements had by this stage made a further interlocutory application seeking interim relief. She sought to prohibit the respondents from taking steps to sell the Takapuna car park land. This application was set down for a half-day hearing on 22 March 2018, and Fitzgerald J put in place a timetable order to facilitate that…

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 2084
Decision Date: 15 August 2018

CaseChat Overview and Summary

Clements sought judicial review of a decision by the Auckland Council to dispose of various properties, including a car park. The Council had decided to sell the Takapuna car park land and had undertaken a consultation process on the proposed change of use of the car park land. Ms Clements' amended statement of claim was discursive, conclusory and in parts, vituperative. Many of the affidavits filed by Ms Clements in support of the application for review were inadmissible. Ms Clements did not appear at the hearing and her proceedings were struck out for want of prosecution. The Council was released from the undertakings it had given not to enter into agreements for sale and purchase of any of the properties the subject of the proceedings without first giving notice to Ms Clements. The Council was awarded costs on a 2B basis, together with its usual disbursements.

Wylie J gave judgment in favour of the Council and against Clements. The Court held that Ms Clements failed to appear, without any adequate explanation for her failure. Her proceedings were struck out for want of prosecution. The Council was released from the undertakings it had given not to enter into agreements for sale and purchase of any of the properties the subject of the proceedings without first giving notice to Ms Clements. The Council was awarded costs on a 2B basis, together with its usual disbursements.

Orders