Grey District Council v Banks - [2015] NZHC 615

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2012-418-000005 [2015] NZHC 615

UNDER the Property Law Act 2007

BETWEEN

GREY DISTRICT COUNCIL Applicant

AND

DOUGLAS BANKS First Respondent

CHRISTINE SANDRA BANKS Second Respondent

Hearing: 24 March 2015

Appearances:

J Shackleton and J Pannett for the Applicant
Mrs C S Banks, in person, on behalf of the Respondents

Judgment:

31 March 2015

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] This is an application for further discovery in relation to two documents.

[2] The Court issued a judgment in this proceeding on 19 June 2013. It issued a second judgment on 5 September 2013 in relation to costs. Mr and Mrs Banks have appealed the costs judgment to the Court of Appeal. The appeal will be heard in July.

[3] For the purpose of arguing their appeal, Mr and Mrs Banks make application for discovery of two further documents:

(a) an affidavit sworn by Mr P G Pretorius, the Chief Executive of the Grey

District Council (the Council), dated 9 August 2002. This document

GREY DISTRICT COUNCIL v BANKS [2015] NZHC 615 [31 March 2015]

was sworn and filed for the purposes of a separate proceeding between the same parties; and

(b) an internal report of the Council titled “Blaketown Leases – a way

forward” dated 10 August 2009.

[4] Mr and Mrs Banks initially approached the Court of Appeal seeking an order that the Council provide these documents to them for this purpose. According to Mr and Mrs Banks, the response of the Court of Appeal, through the Registrar, was that application should be made to the High Court pursuant to a reservation of leave at the time discovery orders were made, prior to the trial in this court. Mr and Mrs Banks have applied accordingly.

[5] The Council opposes the making of the orders sought by Mr and Mrs Banks on three grounds:

(a) The affidavit of Mr Pretorius is already in the case on appeal before the

Court of Appeal.

(b)This court is functus officio having delivered final judgment on all aspects of this case.

(c) The Council report is privileged.

[6] By the time this case was argued, the differences between the Council and Mr and Mrs Banks in relation to the affidavit of Mr Pretorius had been resolved. The affidavit is in the case on appeal, though subject to an objection as to admissibility. On 26 February the solicitors for the Council advised Mr and Mrs Banks that the Council was prepared to withdraw its objection as to admissibility. Mr and Mrs Banks were invited to indicate that that would be acceptable, so this part of the application would not require preparation and presentation. That indication was not given until the beginning of the hearing before me. Leaving aside questions of costs, no further issue arises in relation to this document.

[7] Therefore, only issues (b) and (c) remain for determination.

Is this Court functus officio?

[8] Before trial of this proceeding, procedural orders were made by…

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: [2015] NZHC 615
Decision Date: 31 March 2015

CaseChat Overview and Summary

The Grey District Council sought an order for further discovery in relation to two documents. The matter was before the High Court of New Zealand in Greymouth. The respondents, Douglas Banks and Christine Sandra Banks, made an application for the discovery of two documents, which were an affidavit sworn by Mr P G Pretorius, the Chief Executive of the Grey District Council, and an internal report of the Council titled "Blaketown Leases – a way forward". The Council opposed the making of the orders sought by the respondents. The court found that it was functus officio and therefore could not make a further order by way of discovery. The report was privileged in its entirety as it was produced following the receipt of legal advice and contains specific references to that advice for consideration by the Council. The respondents' application for discovery of the entire report and disclosure of an unredacted copy was dismissed. The Council was entitled to costs.

The respondents were ordered to pay the Council's costs on a 2B basis plus disbursements fixed by the Registrar.

Orders