Hauraki Gulf Enhancement Society Inc v Auckland Council
[2017] NZHC 1322
•15 June 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-1618 [2017] NZHC 1322
BETWEEN HAURAKI GULF ENHANCEMENT
SOCIETY INC Plaintiff
AND
AUCKLAND COUNCIL First Defendant
AND
WAIHEKE GOLF CLUB Second Defendant
AND
THE MINISTER OF CONSERVATION Third Defendant
Hearing: 17 March 2017 Appearances:
J D McBride & B M Stewart for Plaintiff
A Ross & S Wright for First Defendant
J Long & S Humphrey for Second Defendant
No appearance for the Third DefendantJudgment:
15 June 2017
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 15 June 2017 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Simpson Western, Auckland
Lee Salmon Long, Auckland
HAURAKI GULF ENHANCEMENT SOCIETY INC v AUCKLAND COUNCIL & ORS [2017] NZHC 1322 [15 June 2017]
Introduction
[1] The plaintiff, the Hauraki Gulf Enhancement Society Incorporated (“the
Society”), applies for an order rescinding an order made by Toogood J on 16 October
2016 by which the plaintiff was ordered to pay or provide security for costs of
$12,500 to the satisfaction of the Registrar of the Court by 30 October 2015. The order further provided that in the event that security was not paid or secured on or before the due date, the proceedings would be stayed until payment was made.1
[2] In the proceeding commenced by the Society by statement of claim dated 13
July 2015, it applies for judicial review of decisions of the predecessor to the first defendant Auckland Council (“the Council”) and its delegate, the Waiheke Island Local Board regarding the granting of a lease of reserve land to the second defendant, the Waiheke Golf Club Incorporated (“the Golf Club”) for the purposes of a golf course. The Golf Club has plans to use the land to expand its existing 9-hole course into an 18-hole course.
[3] The Council and the third defendant, the Minister of Conservation are both defending the substantive application for judicial review, but did not apply for security for costs.
[4] The Society has now made an application to rescind the security for costs order upon the grounds that it was improperly obtained by the Golf Club as a result of the Golf Club and Council not informing the Court of relevant material facts, resulting in the Court reaching the erroneous conclusions that the expanded golf course proposal had already been through a successful resource consent process, and that the Society’s concerns for the preservation of the wetlands adjacent to the area covered by the lease had already been addressed appropriately through a resource consent procedure.
Background to the judicial review application
[5] Before addressing the present application, it is necessary to briefly traverse the background to the proceeding and the application for judicial review.
1 Hauraki Gulf Enhancement Society Inc v Auckland Council [2015] NZHC 2545.
[6] In March 1977 the Golf Club entered into a lease with a private company, Onetangi Properties Limited (“Onetangi Properties”), the then owner of the park (“the 1977 lease”). The land so leased to the Golf Club comprised some 20 hectares and was leased for the purpose of the Club establishing a 9-hole golf course. The term of the 1977 lease was 14 years without any right of renewal. The lease contained an option for the Golf Club to lease a further 20 hectares of adjacent land for the purposes of developing an additional nine holes. That option was never exercised. The 1977 lease expired in December 1990.
[7] In March 1984 the park was sold by Onetangi Properties to the Waiheke County Council, and, in 1989, the park was gazetted as a recreation reserve pursuant to the Reserves Act 1977.
[8] The Golf Club and the Council plead that, since 1990, the Golf Club has occupied the land on a holding over basis, although since 2012 the Club’s occupation has been pursuant to a Memorandum of Understanding with the Council. The Society claims that the Golf Club occupies the reserve unlawfully.
[9] A report was prepared by the Council in 2003 which recommended that a lease be approved and granted to the Golf Club for 37 hectares of land in the reserve.2 Accordingly, in October 2007 the Council entered into a lease with the Golf Club which authorised an 18-hole course on the leased 37 hectares (“the 2007 lease”).
[10] The Society alleges that the Council approved the 2007 lease under the Reserves Act, under delegated authority from the Minister of Conservation to authorise “existing uses” of recreation reserves, without undertaking any public notification or consultation. In 2012 the Council was advised by the Department of Conservation that it could not rely on that delegated authority as there had been a significant change in the intensity and scale of the proposed activity. Furthermore, in breach of the Reserves Act, the 2007 lease had not been publically notified and there
had been no consultation with local iwi.
2 Being an area larger than the original area of the 1977 lease, but less than the original 1977 lease area and option area combined.
[11] By their pleadings, the Society and the Golf Club accept that the 2007 lease was unlawful and of no legal effect. The Council denies this allegation, but says that without accepting that the 2007 lease was not valid, the Council had decided to commence a new process to advertise the 2007 lease and to seek the consent of the Minister in accordance with the provisions of the Reserves Act 1977.
[12] In 2012 the Waiheke Local Board3 was presented with a report by the council outlining its legal options to remedy the situation with the 2007 lease. The Society claims that the report contained several material inaccuracies in relation to its description of the land to be leased as being largely the same as previously covered by the 1977 lease and generally sought to portray the 2007 lease as being a continuation of prior leasing arrangements. The report recommended that the 2007 lease be approved on the basis that the Council had already resolved to grant a lease to the Golf Club, and there was a risk of legal challenge if the Council did not proceed to take all available steps to complete the granting of a lease.
[13] The proposal to grant a lease was publicly notified by the Council in October
2012. The Society claims that the public notices were inaccurate and misleading as they referred to issuing a new lease as it currently existed when, in fact, there was no lawful lease in existence for the Golf Club at the time, and the proposed lease doubled the leased area. The Society also pleads that submission forms and information packs produced were similarly misleading.
[14] Further, the Society pleads that the public were not alerted to the fact that the
2007 lease contemplated significant excavation and land fill works, in a sensitive area, to enable the course expansion. It pleads that “The earthworks were authorised by “non-notified” resource consents and members of the public had never had the opportunity to comment on the effects of the proposed golf course expansion on the wetlands”.
[15] The Council in its statement of defence says that it was well known in the community that the Golf Club planned to expand and had obtained the required
3 The Waiheke Local Board was established on 1 November 2010 pursuant to s 10 of the Local Government (Auckland Council) Act 2009. The Waiheke Local Board does not have separate legal standing from the Council, s12.
resource consents in 2009. The Golf Club in its statement of defence pleads that it was not necessary to notify the public about the earthworks as this had already been addressed through the earlier resource consent process and resource consents had been granted.
[16] The Local Board convened a hearing panel which approved the grant of a lease to the Golf Club in February 2013 for a term of five years with a renewal term of five years. The Local Board’s decision made on or about 13 February 2013 is the subject of the Society’s application for review. The lease had conditions, including that the Golf Club would liaise with the Local Board concerning the precise boundaries of the lease and how protection of the natural environment would be ensured.
[17] Anticipating the local authority elections for the Council on 19 September
2013, the Local Board made a temporary change allowing Council officers to make business-as-usual decisions between 12 October 2013 and the first business meeting of the Local Board following the election. The Society claims that Council officers made a number of decisions which were beyond the scope of being “business-as- usual”, by accepting new boundaries to the lease and incorporating changes to the lease. The Council signed the lease on 21 October 2013 (“the 2013 lease”). The Minister subsequently advised that he would not approve the 2013 lease, leaving the Council to use its delegated power of authority. The Society pleads that the decision to give approval to the 2103 lease, now rests with the Local Board. The Golf Club and the Council plead that the decision rests with the Council.
[18] The Society advances six grounds of judicial review. These are, in brief:
(a) Procedural impropriety: the Public Notices were inaccurate and misleading.
(b)Illegality: the hearing panel took into account irrelevant considerations and failed to take into account relevant considerations.
(c) Illegality: the hearing panel made errors of law and mistakes of fact by assuming that the lease area was the same area as the 1977 lease, and that the only “new” issue related to the introduction of an all- weather helicopter pad.
(d)Illegality: the hearing panel acted for an improper purpose in that it was primarily motivated by the fact that the Golf Club had incurred significant expense in designing and consenting to an expanded course, with the risk of the Golf Club taking legal action.
(e) Unreasonableness: the decision was one that no reasonable panel could make as it placed significant reliance on submissions obtained through a flawed notification process and failed to ask the essential question under the Reserves Act, namely why the lease was necessary to give effect to the principles set out in s 17.
(f) Illegality: the Council did not have authority to sign the 2013 lease, as this was a matter for the newly elected Local Board.
[19] The Society seeks relief by way of a declaration that the 2013 lease is unlawful and void. It also seeks, in respect of the first ground, a declaration that the
2007 lease and the 2013 lease have not been publicly notified and are presently unlawful and void.
Toogood J’s decision
[20] As stated above, the Golf Club brought an application for an order that the Society provide security for costs. It did so on the grounds that there was reason to believe that the Society would be unable to meet any costs order if it is unsuccessful in the proceeding, and that it was just in all the circumstances that the order should be made. As I have noted, neither the Council nor the Minister of Conservation sought security.
[21] Toogood J considered the means available to the parties to pay for the litigation. He noted that the Society did not assert that it would be able to meet any
costs order, and that the Society’s legal costs to date have been wholly funded by Mr Ronald Walden, who is the father of Dr Adrian Walden, a biologist whose affidavit evidence was relied on by the Society to oppose the Golf Club’s application for security. Toogood J noted that although providing that financial support, neither Mr Ronald Walden or any member of the Society has given any undertaking that they will underwrite the Society’s liability in the event of any costs order being made against it. His Honour also noted that, while the Golf Club was markedly better
resourced than the Society, it cannot easily afford to meet the costs of the litigation.4
[22] Toogood J briefly discussed the merit of the claim noting:5
I expressed to counsel at the hearing my frustration with what I regard as an excessive amount of information provided by the parties in respect of this application. An application for an order for security for costs is not a vehicle for parties to litigate the substantive issues in the proceeding with a view to persuading the Court that a plaintiff's claim is either bound to succeed or inevitably destined to fail. In this case, to the extent that it was necessary to enable the Court to form an impression of the prospects the plaintiff will succeed, the parties could have summarised their respective positions far more succinctly.
[23] In considering the merits of the claim, the Judge noted that it was not necessary to address the merits in any detail, but considered that the Society’s case was arguable to the extent that a strike-out application could not succeed but that it was also arguable:6
… that the deficiencies in the process for the granting of the leases upon which the Society relies are not necessarily deficiencies which, if proved, would justify a declaration that the 2013 lease is invalid. Further, there is a credible argument that the Society's concerns for the preservation of the wetlands adjacent to the area covered by the lease, which form a substantial basis for its opposition to the 2013 lease, have been addressed appropriately through the resource consent procedure.
[24] Toogood J observed that both the Society and the Golf Club represented aspects of the public interest. He noted that the Golf Club is a recreational facility which is available for use by the Waiheke community generally, not just to its
members, and that the Club says that there is widespread public support on the Island for its plans to expand and extend the golf course. His Honour said:7
The real question to be determined was whether it would be fair, balancing the interests of both parties, to require the Society to provide security for costs in circumstances where it has at least an arguable case and is plainly unable to meet a costs award from its present resources. The Court is always reluctant to stifle a claim by a plaintiff acting out of genuine concern on a matter affecting the public interest (as the plaintiff is in this case). In a finely balanced case, access to justice considerations will often prevail over the protection of defendant’s from being forced into litigation without any prospect of recovery of costs if the claim fails.
[25] His Honour further noted that as well as the Golf Club advocating for an interested public, there was also an argument that the Society’s concerns had already been considered. He said :8
… the evidence indicates that, whatever arguments the plaintiff may have about the procedure which has been followed by the Council in getting to the stage of obtaining approval of the lease, there is a good argument that the principal issues driving the Society's opposition have been well ventilated in public forums, before the Local Board's hearing panel and in the resource consent process.
The application to rescind
[26] The Society applies to rescind the order pursuant to r 7.51 of the High Court Rules which provides that a Judge may rescind an order that has been “fraudulently or improperly obtained”. Mr McBride in his submissions for the Society said that here there is nothing to suggest fraud or any improper conduct on the part of anyone in this case and that fraud is not alleged or relied on by the Society. He submits however, that the order was “improperly obtained”.
[27] There are well-settled, but non-exhaustive principles that apply to applications under r 7.51. In Yang v Ko, Associate Judge Abbott set out the following principles in relation to r 261, the predecessor to r 7.51:9
a) The rule exists to prevent intentional or innocent misuse of the
Court's processes;
b)The focus of the enquiry is the knowledge and conduct of the party that obtained the order in question: orders are fraudulently obtained when there is intentional misuse of Court processes but improperly obtained when there is innocent misuse;
c)A key factor in an enquiry into whether the order was improperly obtained is whether the party obtaining it knowingly ignored a legal obligation, so that it would be contrary to the interests of justice to allow the order to stand;
d)The conduct of the party seeking to rescind the order is relevant only insofar as it affects the knowledge of the party who obtained the order;
e)The fact that the order would not have been granted had the alleged impropriety not occurred is a relevant fact in the exercise of the discretion.
[28] In Elvidge v ASB Bank Ltd, which also involved an application to rescind an order for security for costs, Associate Judge Bell confirmed that the principles set out by Associate Judge Abbott continue to apply to applications under r 7.51 and added “further comments”:10
[a] Finality is just as important with interlocutory decisions as with those deciding the substantive merits of a case. Applications under r
7.51 are not to be used as a chance to have a second bite. The rule is
drawn to restrict its scope to defined circumstances — where an order has been fraudulently or improperly obtained.
[b] Interlocutory decisions are subject to rights of review and appeal, but they must be exercised within fixed times. Applications under r 7.51 are not however subject to jurisdictional time limits (although delay may count in the exercise of the discretion). The time limits on review and appeal rights should be respected by not allowing applications under r 7.51 to be used as a substitute for an appeal or review.
[c] Decisions on security for costs applications may be tempting targets for applications under the rule. After all, the decisions are made at an early stage in a proceeding. The court assesses the merits of the case on limited material as a matter of impression. As the case develops and more information comes to hand, the plaintiff's case may prove to be stronger than the court had assessed at first. Indeed, in Houghton v Saunders, the Court of Appeal contemplated the possibility of further review:11
“Security for costs can be a matter for continuous
[sic] review, with a staged process for reappraisal
10 Elvidge v ASB Bank Ltd [2015] NZHC 44 at [134] (some footnotes omitted).
which might increase or reduce security as more
is learned about the case.”
In this case however Judge Osborne gave only a limited opportunity for review. He allowed for review of the second tranche of security if the time for the hearing was assessed as significantly more or less than five days. His assessment of the merits would not be up for ongoing review. In the absence of leave reserved to review that aspect of his decision, the normal considerations for upholding the finality of a decision apply.
…
[e] Applications under r 7.51 seem to be rare and successful ones even more so. Examples of cases where they have succeeded include applications to set aside without notice orders where the applicant has not made full disclosure. There is no reason to believe that r 7.51 has been underused or to encourage applications under the rule.
[f] As an exception to the finality principle, judgments and final orders may be set aside because they were fraudulently obtained.12 Rule
7.51 extends that exception by providing for interlocutory orders
also to be rescinded if they were obtained improperly. Principles developed in proceedings to set aside judgments obtained
fraudulently may also have a place in applications under the rule.
[g] When a case reaches its substantive hearing, the parties will have completed all interlocutory steps and will be expected to have assembled all the evidence required to prove their respective cases. In an interlocutory application on the other hand, the parties may not have prepared their cases fully; further steps may be required, such as discovery. They may not have all the information which would be available by the time of the substantive hearing. Unlike final decisions, which are to be permanent, interlocutory orders may apply only for a limited time, until the final hearing. These characteristics of interlocutory orders, less information available to the parties and temporary effect, go to allowing a wider ground for setting aside interlocutory orders.
[h] As the rule allows rescission of improperly obtained orders, evidence to prove impropriety would seem to be admissible. The matter may however not be quite so straightforward. There may be objections that the evidence to support the application ought to have been given in the original hearing. The Supreme Court's decision in Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd gives some support to this view. It said that where a proceeding to set aside a fraudulently obtained judgment is based on new information, it must be shown that it was not discoverable with reasonable diligence at the time of the previous proceeding. The same requirements of freshness, materiality and cogency that are imposed for admissibility of new evidence on appeal must be met. Evidence that was available at the time of trial, and could reasonably
12 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1
NZLR 804.
have been adduced then, will only be considered in special circumstances. That was obiter — the fraud alleged in that case did not turn on newly discovered evidence. It will be necessary to consider this aspect further, as the bank raises such an evidence objection in this case.
[i] The rule contemplates a connection between the alleged fraudulent or improper conduct and the court's order. “Obtained” shows the required linkage. Conduct which does not influence the court's decision is outside the rule.
[j] The rule is silent as to all the consequences of a rescission order.
While the rule allows the court to grant relief by way of costs, it does not state whether the court's powers are limited to rescission without
further order, or extend to ordering a rehearing or reassessing the original application. A flexible, discretionary response to meet the
circumstances of the particular case seems open. Rescission sets aside only the order, not the application on which it was made. A
fresh order may be made on the original application. It may therefore be open to order a rehearing or on the rescission application to make a new decision on the original application. After all, justice may be
satisfied by some adjustment of the original order. On the other hand, there may be cases where the misconduct of the party
obtaining the order is so serious that the court considers that the appropriate remedy is to rescind the order, but not to grant any relief under the original application, even if it might otherwise have been
granted but for the impropriety.
[29] The first step in determining an application under r 7.51 is to establish whether there has been improper conduct. Then, it is necessary to establish whether or not the order was “obtained” as a consequence of this improper conduct.13
[30] Mr McBride submits that there are three relevant duties in this case. First, the respondents had a duty to explain the decision-making process, the relevant factual and other circumstances and the reasons for the decision, known as the “duty of candour”.14 He cites Arnold J writing for the Supreme Court in Ririnui v Landcorp Farming Ltd:15
The courts in both New Zealand and the United Kingdom have pointed out that the fact-dependent nature of judicial review means that those whose decisions are challenged have a duty to explain the decision-making process, the relevant factual and other circumstances and the reasons for the decision
— the so-called “duty of candour”. It is not, of course, a legally enforceable duty, but rather a responsibility attaching to public decision-making. Where such evidence is not provided, a court may well draw adverse inferences…
13 M Yovich & Sons v Peters [2016] NZHC 1572 at [48].
14 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 (SC).
[31] As to the second duty identified by the Society, Associate Judge Bell in Elvidge v ASB Bank noted that in a contested interlocutory application on notice “an obligation of utmost good faith does not arise. That is because the other side has an opportunity to respond, unlike in without notice applications.”16 The relevant duty in an application for security for costs is not to mislead the court.17
[32] The third obligation that the Society claims has been breached is an obligation to ensure that the Waiheke Local Board’s position was reported to the Court.
[33] The Society claims that the Council and the Golf Club breached these obligations. It submits that the Court was misled by statements made, or the impressions left, in affidavits by Mr Collings, the Golf Club’s honorary solicitor, and the submissions made at the security for costs hearing. It submits that both the Golf Club and the Council had an obligation to inform the Court of certain information.
[34] In an affidavit dated 13 August 2015 Mr Collings deposed that:
The Plaintiff has brought these proceedings at a time when the Golf Club was finally making progress with the First Defendant towards the resolution of the underlying issues which have dragged on for a number of years (namely the need for a decision under s 54 of the Reserves Act). It appears to the Golf Club that these proceedings have been brought to interfere with that process and to further delay a decision being made by the First Defendant under its delegated powers.
In the meantime, the Golf Club continues to occupy the land on the basis of a memorandum of understanding with the First Defendant which is causing it ongoing prejudice including:
(a) The inability to develop the golf course;
(b) The inability to carry out and substantial repairs [sic] or maintenance to the golf course or its facilities;
(c) The inability to access financing to fund developments;
(d) The expiry of [sic] the 2013 lease in 2022 is drawing closer;
(e) The need to renew resource consents that have already been granted in respect of development in the golf course.
16 At [160].
[35] The Society also notes that a letter from Mr Collings to the Council, dated 1
July 2015, was exhibited to the affidavit. In the letter Mr Collings stated, “The sole issue outstanding is the exercise by Auckland Council of its delegated authority under the Reserves Act 1977 to approve or disapprove the already executed lease.” Another letter from Mr Collings to the Council, dated 2 July 2015, in which Mr Collings said that “Ngāti Paoa [sic] was extensively consulted in relation to the proposed development and consented to it. More recently seven iwi have been consulted in relation to the renewal of resource consents. No issues of concern have been raised by iwi.” was also exhibited.
[36] The Society also points to a further affidavit of Mr Collings, dated 11
September 2015, in which he stated:
Mr Walden refers to the effect of the expansion of the course on the wetlands. This matter was extensively considered in the context of both the resource consent and Reserves Act processes. Both processes resulted in conditions being placed on the nature of the expansion intended to protect wetlands near the course. A copy of the resource consent is contained in the third schedule to the 2013 Lease.
[37] The Society also refers to the submissions made by the Golf Club to
Toogood J that:
(a) decisions on resource consents were made in 2009;
(b)“the Golf Course cannot undertake its planned redevelopment of the golf course, despite resource consents having been in place since 2009 and the Hearing Panel having approved the lease to Golf Club in 2013 under the Reserves Act”; and
(c) “the Golf Club has incurred costs referable to renewal of resource consents and for applying for a new replacement consent, all of which have been necessitated by delays in finalising the lease.”
[38] Mr McBride for the Society submits that, contrary to these assertions, the
Golf Club and Auckland Council were aware at the time of hearing that:
(a) One of the resource consents referred to in the lease had expired, and that the Development Plan could not proceed without it.
(b)The Golf Club had applied for a new resource consent for the earthworks in February 2014 which the Council was still processing. No decision had been made as to whether public notification was necessary.
(c) Ngāti Paoa had submitted a Cultural Impact Assessment dated 14
September 2015, objecting to the Golf Club’s application for resource
consent.
(d)The Waiheke Local Board, as landowner, had also advised the Council that it objected to the application for resource consent and refused consent to the proposed expansion.
(e) In October 2015, the Council had asked for an ecologist’s assessment of the second defendant’s application for a new resource consent.
[39] The Society claims that both the Golf Club and the Council had a duty to inform the Court of these matters. The issue therefore is whether in presenting their evidence and submissions, the Golf Club and Council ought to have informed the Court of those matters. The Society appears to claim that the Court should have been informed of these matters for two reasons. First, it says that the additional information goes to the merits, and that the documents would show that there is no viable defence to the complaints being made by the Society because “the process just needs to begin again”. Second, it says that the Golf Club had falsely presented a picture to Toogood J that the proceeding was the final hurdle, and that everything else was in place to enable the expansion of the golf course to begin.
Submissions for the First Respondent – the Auckland Council
[40] Mr Ross, appearing for the Council filed written submissions and made oral submissions. He explained that although the Council had no direct interest in the
Golf Club’s application for security for costs, or the Society’s present application to rescind the order made, it had attended the hearing out of duty to the Court as a party, and to respond to any suggestion that the Council has breached a duty of candour to the Court or to the Society. I note however that, while the Council attended the hearing before Toogood J, it neither sought an order for security for costs itself, nor made any submissions. Mr Ross submits that for the purposes of determining whether or not an order should be rescinded under r 7.51, the obligation not to mislead relates only to the conduct of the party that has obtained the order, and that the conduct of the Council was therefore strictly irrelevant to the present application to rescind the order for security for costs.
[41] Mr Ross firmly rejected the Society’s claim that the Council had any obligation to check the contents of its records and files to determine whether any information placed before the Court by another party was correct. While noting that there may have been a duty on counsel to speak up if counsel knew that any incorrect or untrue information was being presented to the Court, nothing of that sort happened in this case. Mr Ross also noted that the application for security for costs was determined at a very early stage of the proceedings, before the parties had undertaken any discovery, and hence before the Council had itself undertaken the process of gathering together material considered relevant to the issues arising in the proceeding. Mr Ross submitted that in that early stage of the proceedings, it was quite unrealistic to expect the Council to have all the detailed information referred to by the Society already identified and assembled. Mr Ross emphasised that any suggestion that the Court was misled by reason of any omission on the part of the Council is firmly rejected. I agree with Mr Ross, and accept without hesitation that the Council has acted properly and appropriately in relation to the proceeding.
Submissions for the Second Respondent – the Waiheke Golf Club
[42] Mr Long for the Golf Club, submitted that the Society had created what he termed a “bucket of confusion” by the presentation of its argument. He emphasised that his client was not the decision maker whose decisions were being challenged and in respect of which judicial review is being sought, but a third party so far as the decision making was concerned.
[43] Mr Long says that the Golf Club accepts that most of the information referred to by the Society as being information that ought to have been brought to the attention of the Court was in the possession of the Golf Club at the relevant time, although some of it was also known to the Society and was in any event brought to the Court’s attention. He submits that some of the material only came into existence after the security for costs hearing and accordingly could not have been within the knowledge of the Golf Club at the relevant time.
[44] In any event, says Mr Long, it is clear from the evidence that prior to the Local Board Panel hearing in December 2015, Dr Adrian Walden on behalf of the Society, had sought and obtained a copy of the materials provided to the members of the panel, which material included the Club’s submissions to the panel and annexed the relevant resource consents. Moreover, by means of the affidavit of Mr Collings filed in support of its application for security for costs and the written submissions of counsel, the Golf Club had clearly stated that there was a need to renew some of the resource consents that had previously been granted and to apply for a new replacement consent.
[45] He submits that neither the Golf Club’s evidence as contained in the affidavits sworn on its behalf, nor its submissions, were in any way misleading, and they correctly described the factual position at the time they were prepared and sworn. While Mr Long accepts that the details of the Ngāti Paoa objection and concerns were not brought to the Court’s attention, he says that was because that information was not relevant to any issue in dispute between the parties in the proceedings. He emphasises that the status and progress of the resource consent application in connection with the earthworks was not an issue in the proceedings. Rather the Society’s pleading raised a narrow issue regarding the adequacy of the public notice issued in advance of the panel hearing.
[46] He submitted that an examination of the pleadings makes it clear that the statement of claim challenges the lawfulness of the decision of the hearing panel of the Local Board and its approval and grant of the 2013 lease. The pleadings do not put the resource consents at issue and, consequently, the Golf Club did not consider it necessary or relevant to include any further information relating to the resource
consent process within the materials presented to the Court in relation to the security for costs application. Mr Long says that he accepts that the Golf Club still needs to obtain resource consents and that the issues raised by Ngāti Paoa regarding the application for consent for the earthworks will also need to be addressed when the earthworks consent is sought, but those are matters that were not relevant to the application for security for costs.
[47] Mr Long submits that, assuming that the Golf Club as a party other than the decision maker had a duty of candour, it did not breach such a duty.
[48] Finally, he submits that even if the Ngāti Paoa information and material had been presented to the Court, it would have made no difference, and the outcome and result would have been the same.
Decision
[49] Firstly, I do not consider that the information referred to by the Society does show that any defence by the Golf Club or Council is in fact hopeless, and should have been shown to the Court for that reason. Furthermore, I do not consider that the order was obtained on the basis of incomplete or misleading information. The Society claims that the Golf Club persuaded the High Court that the Society’s “claim was close to hopeless, on the basis that the environmental effects had already been addressed by the resource consent process.” In my view that submission misstates the correct position. Toogood J expressly said that it was “neither necessary nor appropriate for [his Honour] to address in any detail the merits of the plaintiff's case.” His Honour then noted that neither the Society’s claim nor the defendants’ positions were clearly hopeless on their face. I consider that the Judge’s statement that:
there is a credible argument that the Society's concerns for the preservation of the wetlands adjacent to the area covered by the lease, which form a substantial basis for its opposition to the 2013 lease, have been addressed appropriately through the resource consent procedure
was simply an observation recognising the general contentions of the Golf Club, without expressing anything approaching a concluded view on the matter. While
making very broad and general observations to the effect that both parties appeared to have arguable cases, it is clear that Toogood J expressly avoided making an assessment strengths of the parties’ cases. That being so, any information bearing upon the respective plausibility and strength of either of the parties’ cases, clearly played no part in obtaining the Court’s decision.
[50] Furthermore, I do not consider that, had Toogood J had the information referred to by the Society and now before the Court, his Honour would have reached a different conclusion regarding the merits of the case. The situation remains that the respective contentions of the parties regarding the judicial review, prima facie at least, appear to be arguable. To make any other finding would require an in depth analysis of the evidence and closer consideration of the issues which, as Toogood J noted, is not appropriate in the context of a security for costs application.
[51] The next issue is whether the Society misled the Court as to the effect of the proceeding on its ability to proceed with its development. There was a submission by the Golf Club that it had been trying to resolve the legal status of the lease for a number of years. It submitted that the delays in finalising the lease were preventing the Club from developing the course. It noted that new and renewed resource consents were required and this necessitated incurring additional costs. While the Golf Club did not provide details of the earthworks consent application to the Court, or say that it was encountering issues such as the Ngāti Paoa objection, in my view there was no reason for it do so as the current status of any of the applications was not relevant in any material way to the security for costs application. The Society should, in any event, have been aware of the expiry dates of the resource consents as it had copies of the details of those consents, and it was expressly stated by the Golf Club in its submissions that new applications had had to be made. The Society was therefore in a position to raise the issue itself, although it would inevitably have been met with a challenge based on relevance.
[52] I also disagree with the Society’s submission regarding the significance of the omission of that information. In its written submissions in support of its application for an order for security for costs, the Golf Club explained the history of it attempting to resolve the legal status of its occupation of the golf course land under
the heading: “Prejudice to the Golf Club”. I consider that the overall thrust of the submissions made under that heading was that the Golf Club has been attempting to resolve issues relating to the lease for many years, and that it has suffered and continues to suffer practical and financial prejudice as a result of these delays, including uncertainty as to its long-term tenure preventing the Club from developing the golf course or undertaking substantial repairs. Toogood J adopted the same
position, noting that:18
It is of no small moment to the Golf Club, and those who support the prospect of an 18-hole course on Waiheke Island, that the present stage of the approval process has been reached after something of the order of 25 years of engagement with regulatory and bureaucratic processes.
And:19
… the Court is required in such circumstances to achieve an appropriate balance between a position which might prevent the Society from pursuing what it regards as a legitimate challenge to the way in which the Council has dealt with the lease issue and the environmental concerns related to it, and the legitimate interests of the Golf Club in pursuing a development which it has had in mind for over 25 years.
(Emphasis added)
And:20
I do not apprehend there to be any argument that the Golf Club has done anything other than adopt a proper course, over a long period of time, in pursuit of the legitimate aim of developing its facilities.
[53] Accordingly, I do not consider that the Golf Club put the current state of the resource consents in issue to an extent that required it to provide more information as regards progress of an application for resource consent or specifically the information the Society submits should have been provided to the Court.
[54] In summary, I do not consider that the order was “obtained” on the basis that
the litigation was the sole obstacle standing in the way of the Golf Club proceeding with development of the course. What is clear is that Toogood J took into account
18 At [8].
19 At [18] (footnotes omitted).
20 At [28].
that the Golf Club had been attempting to resolve matters for a number of years, and in doing so had not done anything other than adopt a proper course.
[55] For completeness, I find that, as there was no improper conduct by the Golf Club as regards the manner in which the order for security costs was obtained, there cannot have been any improper conduct by the Council which, although in possession of the further information, had not taken a position or participated in the application for security for costs. In any event, the information it held relating to the actions of the Local Board and its hearing panel was not relevant to the issues arising in connection with the application for security for costs.
Result
[56] I find that the order made by Toogood J on 16 October 2015 was not improperly obtained and therefore it will not be rescinded.
[57] The Society’s application is dismissed. The Council and the Golf Club are each entitled to costs on a 2B basis, together with any disbursements as approved and settled by the Registrar.
[58] Leave is reserved to counsel to file memoranda as to costs within 15 working days of delivery of this judgment, should any issue regarding costs arise.
Paul Davison J
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