Gisborne District Council v Bushmere Trust
[2022] NZHC 662
•1 April 2022
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CIV-2022-416-002
[2022] NZHC 662
BETWEEN GISBORNE DISTRICT COUNCIL
Appellant
AND
BUSHMERE TRUST
Respondent
Hearing: 28 March 2022 Appearances:
H P Harwood and O J Maassen for Appellant T Mijatov and N S C Buxeda for Respondent S Connelly for Valuer-General
Judgment:
1 April 2022
JUDGMENT OF GENDALL J
This judgment was delivered by me on at
Registrar/Deputy Registrar Date:
GISBORNE DISTRICT COUNCIL v BUSHMERE TRUST [2022] NZHC 662 [1 April 2022]
Introduction
[1] Before the Court is an opposed application by the Valuer-General (who has joined this appeal proceeding as a party) to adduce further evidence.
[2] The substantive matter before this Court is an appeal by the Gisborne District Council (the Council) of a decision of the Land Valuation Tribunal (the Tribunal).1 The Valuer-General was not a party to the Land Valuation Tribunal proceeding before the Tribunal, but has exercised their statutory right to join this appeal as a party.
[3] In the substantive decision under appeal the Tribunal as I understand it held that contractual Zespri licences which permit the growing of gold “G3” kiwifruit by a grower do not form part of the capital value of land for the purposes of the Rating Valuations Act 1998. It appears on this appeal the appellant considers the Tribunal’s entire decision to be wrong in law and in fact. This substantive appeal has been set down for hearing in this Court on 7 June 2022.
[4]The Valuer-General, it seems, supports the council’s appeal.
[5] The further evidence that is the subject of the Valuer-General’s present application is an affidavit from the Valuer-General that it is said explains first, how the information prescribed in Appendices A – H to the Rating Valuations Rules 2008 (RV Rules) is used by him when performing his statutory audit functions and secondly, the purpose of the rules that prescribe the form and content of that information. The Valuer-General notes generally that the information in Appendices A – H must be included in an audit file submitted to the Valuer-General by a territorial local authority like the Gisborne District Council in order to have a general revaluation approved by the Valuer-General.
[6] So far as the Council is concerned, it supports the Valuer-General’s present application. It adopts too submissions advanced here for the Valuer-General but in addition adds, further submissions to the following effect:
1 Bushnere Trust v Gisborne District Council [2022] NZLVT 2.
(a)the Tribunal made findings as to whether the council was permitted to create sub-categories of land beyond those specified in the RV Rules, a matter seen of importance to the Tribunal’s decision;2
(b)the issue had not been raised by Council before the Tribunal but was raised for the first time by the Tribunal itself at the hearing. The issue it appears had not been mentioned in the respondent’s notice of objection, evidence or written submissions, before the Tribunal, and accordingly could not have been anticipated by the Council. The valuer for the Council in his evidence described the RV Rules in general terms but neither party addressed this issue raised by the Tribunal before the hearing;
(c)the RV Rules themselves describe what must be recorded when undertaking rating revaluations, but do not comment on how that information is utilised by the Valuer-General in the performance of his statutory function;
(d)the RV Rules, it is said, cannot be properly assessed in the absence of information about the purpose of the information and how it is to be used in practice. To do so counsel for the appellant, Mr Maassen contends would risk the Court carrying out an interpretation of those rules in a vacuum, and potentially divorced from the context in which the rules are used;
(e)if, as Mr Maassen for the appellant says, appears now to be the case, the respondent Bushmere Trust is (for the first time), intending to pursue an argument in this appeal about the effect of the RV Rules, it is in the broad interests of justice for this Court addressing the appeal to be fully informed and to receive evidence on that topic.
(f)lastly, the Council rejects any suggestion that the further evidence in question is an attempt to “bolster” its case. It notes the present
2 At [11]–12] and [108]–[109].
application is not one made by the Council but instead by the Valuer- General as an interested party to the proceeding. It is an application made on a topic that did not arise until the Tribunal hearing and one that could not reasonably have been anticipated would be raised by the Tribunal as an issue at the hearing. Consequently, criticisms from the respondent that the Valuer-General could or should have engaged with this issue early in the proceeding is simply without foundation.
The Law
[7] An appeal against a decision of the LVT like the present one, is by way of rehearing.3 The record of the evidence adduced at the trial hearing before the specialist Tribunal (which was sitting with two valuer members and a District Court Judge) therefore assumes importance on appeal.
[8] Rule 20.16(3) of the High Court Rules 2016, relating to the requirement that a party to an appeal may adduce further evidence only with the leave of the Court, provides:
“(3) The Court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.”
[9] The principles governing the test for the receipt of further evidence on appeal were set out in B v A as follows:4
(a)the Court can receive further evidence if it thinks that the interests of justice require it to do so;
(b)it is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time;
3 Land Valuation Proceedings Act 1948, s 26(1).
4 B v A [2020] NZHC 580 at [25].
(c)admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re- litigation before the appellate Court of the substantive case will count against admitting the further evidence;
(d)generally, the further evidence must be fresh, credible and cogent;
(e)evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial;
(f)the absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally be admitted until the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency;
(g)the interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it; and
(h)the standard to be met is “rightly high”.
[10] In B v A leave to adduce further evidence on appeal was granted, even though the evidence was available at the time of the lower court hearing in the Family Court. The High Court, considering the leave application, accepted that the evidence was credible, cogent and material.5 In relation to the issue of exceptional circumstances, the Court there noted that the evidence related to issues that had been raised by the Judge during the Family Court hearing rather than by the parties.6
5 At [27]–[28].
6 At [11] and [29].
[11] On these matters it is useful also to note the words of the Court of Appeal in Foundation for Anti-Aging Research v The Charities Registration Board,7 where it was noted:
“There may be other circumstances which could justify the exercise of the discretion to admit further evidence such as … where natural justice requires. [That] might arise where, for example, the Board has taken matters into account to which the appellant did not have the opportunity to respond and which the Court on appeal considers to be material to the determination of the appeal.”
Analysis
[12] Turning now to my analysis in this matter, it is clear from para 10 of the Tribunal’s decision and from an exchange with the Chair of the Tribunal at page 178 of the evidence transcript, that the major issue that arose according to the Tribunal related to the valuation of the gold “G3” kiwifruit interests and its impact on that land. The Chair of the Tribunal indeed stated that this issue represented the “crux” of the case and that the case before the Tribunal in fact turned on that issue.
[13] Importantly, as I understand it, the Valuer-General was not a party to the proceeding before the Tribunal, and only joins this proceeding at the present appeal stage.
[14] What does seem clear and accepted by all parties is that the over-arching issue on this appeal is whether the local authority, the Gisborne District Council in this case, can differentiate between kiwifruit orchards for gold kiwifruit and kiwifruit orchards for green kiwifruit in considering general re-valuations of orchards in its district. As I understand the position, the Council did so in 2020 and that differentiation has been the subject of objection by the respondent. Linked to all this, I am told, is the question whether the required licence from Zespri, as the Kiwifruit Licencing Authority to grow “gold” kiwifruit, can be seen in a sense as an improvement to the land and can be taken into account in the valuation of that land. Counsel for the Valuer-General before me confirmed that the Tribunal decided that, because the rules in question do not differentiate, therefore the Council in this case was not entitled to have regard
7 Foundation for Anti-Aging Research v The Charities Registration Board [2015] NZCA 449 at [52].
to different gold kiwifruit or green kiwifruit requirements. Mr Connelly, for the Valuer-General went on to describe the two documents in question here which are required to be submitted to the Valuer-General by the Council as:
(a)the “audit file” referring to categories in which all properties fall; and
(b)the “revaluation basis” document which specifies the method the valuer has used.
[15] In the proposed further evidence in the Valuer-General’s affidavit, as I understand it, these two documents are described and in particular, how the documents are used by their office including and in doing so how they touch on the categories in question. Mr Connelly contends the further evidence addresses an issue that was not in evidence before the Tribunal, it addresses a gap in that evidence and although it is not new, in a broad sense, primarily the evidence seeks to assist this Court in considering the appeal. It addresses, he says, an issue raised late by the Tribunal and which it described as the “crux” of the case.
[16] All parties before me accept that the evidence in question is not new or fresh. It could have been included at the hearing before the Tribunal. The Valuer-General however was not a party to that hearing and had elected not to join at that point.
[17] I accept that allowing new evidence at this point is exceptional, not routine, and the Courts have said on many occasions, needs to occur only sparingly. Special reasons clearly are needed and the bar for admitting further evidence is a high one.
[18] On the material which is before me, this further evidence in my view must be seen as relevant. Given it is from the Valuer-General, who needs to be seen as an expert in this area, it is cogent. As to the credibility of this evidence, before me this was not challenged in any real way.
[19] On balance I find that special reasons for the admission of this evidence do exist here. The Court, as I see it, would be helped to an extent if this evidence and any cross-examination of the deponent sought by the respondent was before it. The
evidence does seem to be advanced to assist the Court and to address an issue raised initially, not by the parties themselves but by the Tribunal. I am satisfied this further evidence is designed to address a gap in the evidence before the Tribunal. I note too that the Valuer-General acknowledges they would be available for cross-examination at the hearing of the appeal.
[20]The Valuer-General’s position has been that:
(a)the evidence he proposes to give is factual;
(b)the main thrust of this evidence is to address the two documents I note above and how that office uses those documents in approving valuations; and
(c)the evidence gives useful context and factual background relating to the rules and how the Valuer-General interacts with those rules.
[21] I accept here that although the Valuer-General’s evidence in this application could with reasonable diligence have been produced at trial before the Tribunal, this is a special and rare case where this evidence is cogent and material to resolution of the appeal and indeed it relates to issues raised only by the Tribunal itself during the hearing. Accordingly, it is likely to have had an element of surprise for all parties.
[22] I record too I am satisfied this further evidence is not an attempt to bolster the case of the Council. It could not be said the evidence specifically was not adduced because of a now regretted strategic decision regarding how the case was run before the Tribunal. Rather as I see it the evidence is to address the specific issue the Tribunal raised of its own motion, an issue which neither party anticipated or on which they either presented any evidence or were prepared in advance to provide detailed legal submissions.
[23] The new evidence in my view will enable this Court on appeal to fully and properly consider the reasoning of the Tribunal on the issue.
Result
[24] For all these reasons I find the interests of justice here require that leave be granted pursuant to r 20.16 of the High Court Rules.
[25]An order is made granting leave accordingly.
[26] Costs are reserved. If the parties are unable to resolve any issue of costs between themselves then they may file memoranda sequentially, which are to be referred to me and I will decide the question of costs based on the material then before the Court.
Gendall J
Solicitors:
Simpson Grierson, Wellington
Atkins Holm Majurey Limited, Auckland Crown Law Office, Wellington
Barrister:
Tihomir Mijatov, Barrister, Wellington
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