Clements v Auckland Council - [2018] NZHC 553

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2792 [2018] NZHC 553

BETWEEN
MIRIAM CLEMENTS

Applicant

AND

AUCKLAND COUNCIL

First Respondent

COUNCILLOR RICHARD HILLS
Second Respondent

COUNCILLOR CHRIS DARBY
Third Respondent

……………….continued

Hearing: 22 March 2018

Counsel:
Appearance:

RJ Wilson for respondents

M Clements, applicant in person

Judgment:

28 March 2018

JUDGMENT OF FITZGERALD J

[As to applications for discovery and security for costs]

This judgment was delivered by me on 28 March 2018 at 10 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland

M Clements, Auckland

Clements v Auckland Council [2018] NZHC 553 [28 March 2018]

COUNCILLOR LINDA COOPER
Fourth Respondent

COUNCILLOR ROSS CLOW
Fifth Respondent

COUNCILLOR ALF FILIPAINA
Sixth Respondent

DEPUTY MAYOR BILL CASHMORE
Seventh Respondent

Introduction and summary

[1] Ms Clements has filed an application for judicial review of Auckland Council’s decision, in March 2016, to authorise Panuku Development Ltd (“Panuku”) to sell a car park located at 40 Anzac Street, Takapuna (“the Property”).

[2] The grounds upon which judicial review are sought are broad and many, but key amongst them are allegations that the Council’s decision to authorise Panuku to sell the Property:1

(a)was unlawful, as it breached reasonable expectations of certain local residents that the Property would never be sold, and unlawfully removed the “Citizens of the City of Takapuna” from the Property’s certificate of title;

(b)was made on the basis of an error of fact, namely that the Property was “superfluous to use”;

(c)was irrational, as the Property’s disposal was disproportionate to the Council’s overriding objective of raising finance and developing public value;

(d)exceeded the decision-maker’s powers in two primary ways: in that the purpose of local government is to enable democratic local decision- making, but a majority of local residents and businesses opposed the decision to sell; and because relevant law was ignored, namely citizens’ freedom of expression under the New Zealand Bill of Rights Act 1990, including to drive a car rather than utilise public transport; and

(e)was tainted by procedural impropriety, including misleading marketing of the underlying “Unlock Takapuna” policy, pre-determination and lack of consultation.

1 See “Grounds for Judicial Review” in Ms Clements’ document titled “Interlocutory Application for Stay of Execution Pending Judicial Review Proceedings” dated 19 February 2018.

[3]The Council and other respondents oppose the application.

[4] Ms Clements now applies for orders that the respondents give discovery of a range of documents. The Council and other respondents oppose that application, on the basis the documents are not relevant, and in any event, discovery in the terms sought would be unduly oppressive and disproportionate to the matters in issue.

[5] The Council applies for an order that Ms Clements give security for costs. Ms Clements is presently an undischarged bankrupt. It is not in dispute that Ms Clements will be unable to meet an order of costs if her judicial review application is unsuccessful. It is also not in dispute…

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 553
Decision Date: 28 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Miriam Clements filed an application for judicial review of the Auckland Council's decision in March 2016 to authorize Panuku Development Ltd to sell a car park located at 40 Anzac Street, Takapuna. Ms. Clements alleges that the Council's decision was unlawful, made on an error of fact, irrational, exceeded the decision-maker's powers, and was tainted by procedural impropriety. The Council and other respondents opposed the application.

Ms. Clements applied for orders that the respondents provide discovery of a range of documents. The Council and other respondents opposed that application on the basis that the documents were not relevant, and in any event, discovery in the terms sought would be unduly oppressive and disproportionate to the matters in issue. The Council also applied for an order that Ms. Clements give security for costs.

The court first considered the application for discovery. The court found that the documents sought were not relevant, or even if some had tangential relevance, ordering discovery of them would not be proportionate. The court declined to order the Council (or any of the other respondents) to give discovery of the documents.

The court then considered the application for security for costs. The court determined not to order security for costs, at least as the proceeding currently stood. The court found that ordering security in the sum sought, or in any other substantive amount, would likely bring this proceeding to an end. While the claim did not appear particularly strong, it was not possible to say at this stage that it was wholly without merit. The court concluded that there was a real risk that such an order would have the effect of stifling this proceeding.

The court dismissed Ms. Clements’ application for discovery and the Council’s application for security for costs. If any party wished to seek costs in relation to either of the applications, that party was to file a memorandum as to costs, no longer than five pages in length, within 10 working days of the date of this judgment.

Orders