Hugh Green Limited v Auckland Council
[2019] NZHC 635
•29 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV2016-404-3209
[2019] NZHC 635
UNDER the Judicature Amendment Act 1972 BETWEEN
HUGH GREEN LIMITED
First Plaintiff
GREERTON HOLDINGS LIMITED
Second PlaintiffAND
AUCKLAND COUNCIL
Defendant
Hearing: On the papers Counsel:
ME Casey QC and AJ Casey for plaintiffs NMH Whittington and RJ Wilson for defendant
Judgment:
29 March 2019
JUDGMENT OF FITZGERALD J
[As to application to recall]
This judgment was delivered by me on 29 March 2019 at 11:30 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Kemps Weir, Auckland (S Weir)
Meredith Connell, Wellington
Hugh Green Limited v Auckland Council [2019] NZHC 635 [29 March 2019]
[1] By judgment dated 9 November 2018 (the Judgment), I granted Hugh Green Ltd’s (HGL’s) application for judicial review.1 This was on the basis that Auckland Council (the Council) failed to take into account certain mandatory relevant considerations in deciding whether or not to acquire land from HGL.2 I dismissed HGL’s remaining grounds for judicial review, its claim of breach of substantive legitimate expectation, and a cause of action in breach of contract.
[2]HGL applies for recall of the Judgment on that basis that:
(a)despite being raised in submissions, the Judgment did not address HGL’s argument that there was a procedural legitimate expectation;
(b)despite being raised in submissions and being referred to in the Judgment, the Judgment did not make a finding as to the effect of s 78 of the Local Government Act 2002 on the Council’s decision; and
(c)the Judgment explicitly directs the Council to reconsider its decision only with reference to particular policies and Plan provisions, which gives rise to a lack of clarity as to what is to be taken into account on reconsideration (particularly relating to HGL’s expectation and/or the Council’s dealings with HGL and the history of the land’s development).
[3]The Council opposes the application for recall.
Factual background
[4] I do not propose to traverse or summarise the underlying factual background to HGL’s claims, which is set out in some detail at [6] to [43] of the Judgment. As will become evident from the balance of this judgment, however, it is necessary to address HGL’s pleaded case and the submissions it made before me at the substantive
1 Hugh Green Ltd v Auckland Council [2018] NZHC 2916.
2 Namely relevant provisions of the (then) Manukau District Plan (Plan), and in particular those contained in Chapters 16.15.9.3 and 17.10.4 of that Plan.
hearing. This is because a key issue raised on the recall application is whether the Judgment failed to determine matters properly before the Court.
[5] The pleading immediately before trial was HGL’s amended statement of claim and application for review dated 27 October 2017. At paragraphs 1 to 29 of that document, HGL referenced the key factual chronology preceding the Council’s decision not to acquire the relevant land from HGL. Peppered throughout those paragraphs were allegations that HGL had an expectation that the Council would acquire the land in question.3 At paragraph 30 of the amended statement of claim, HGL then pleaded that the Council, in making its decision on land acquisition, failed to take into account certain matters,4 took into account an irrelevant consideration,5 and gave no or insufficient weight to other matters.6
[6] HGL pleaded as its first cause of action “legitimate expectation”. The pleading in relation to this first cause of action is set out in full below:
For the reasons set out at paragraphs 11 to 31 the plaintiffs had a legitimate expectation that Lots 800 and 801 would be acquired by the defendant and reasonably relied on that expectation when developing the Stage 7 Land and in particular Lots 800 and 801.
Relief sought
(a)A declaration that the defendant give effect to the plaintiffs’ legitimate expectation by acquiring Lots 800 and 801 under the terms of the settlement agreement;
(b)Costs.
[7] The claim then went on to plead a “first alternative cause of action: judicial review”, which was in the following terms:
The decision was made in the exercise of a statutory power in terms of the Judicature Amendment Act 1972. For the reasons set out in paragraphs 11 to 31, the decision was unlawful.
Relief sought
(a)The review and quashing of the decision;
3 See, for example, paragraphs 14, 20, 21, 22, 26, 27, 28.
4 See paragraphs 30(a), (b), (c) and (d).
5 See paragraph 30(e).
6 See paragraphs 30(f) and (g).
(b)A declaration that the defendant acquire Lots 800 and 801 under the terms of the settlement agreement;
(c)Alternatively, a declaration that the defendant reconsider its decision including giving appropriate weight to the settlement agreement and the plaintiff’s legitimate expectation;
(d)Costs.
[8] HGL’s second alternative cause of action, breach of contract, is not relevant to the present application and I say nothing further on it.
[9] In its written opening submissions, HGL raised additional grounds for judicial review. It also filed an application for leave to amend the statement of claim. The application set out, in mark-up form, the proposed amendments, the effect of which was to introduce into the judicial review cause of action grounds of irrationality, unreasonableness, substantive unfairness, predetermination, as well as an allegation that the Council did not give HGL the opportunity to respond to matters that the Council intended to rely on when making its decision.
[10] In the event, the Council did not object to the claim being amended to include additional grounds of unreasonableness and breach of natural justice, but did object to the proposed addition of predetermination (which would have required additional evidence). HGL accordingly did not pursue the predetermination claim.
[11] In the Judgment, I expressly noted that HGL’s written closing submissions delivered “somewhat more of an ‘omnibus’ attack” on the Council’s decision-making than its pleaded case. I observed:7
It is important, however, to tie its claim back to its pleaded case, as that is the case the Council was on notice it was to meet and on the basis of which it prepared its evidence.
[12] I accordingly addressed and determined the claim of legitimate expectation,8 failure to take into account or give sufficient weight to relevant considerations,9 the
7 Hugh Green Ltd v Auckland Council, above n 1, at [212].
8 At [150]–[181].
9 At [213]–[244].
alleged taking into account of an irrelevant consideration,10 breach of natural justice,11 and Wednesbury unreasonableness.12
Approach to applications for recall
[13] The legal principles governing applications for recall are well-settled and are not in dispute.
[14]There are three categories of cases in which a judgment may be recalled:13
(a)first, where since the hearing, there has been an amendment to a relevant statute or regulation or new judicial decision of relevance and high authority;
(b)second, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and
(c)third, where for some other very special reason, justice requires that the judgment be recalled.
[15] Reflecting the finality of judgments, the Court of Appeal has observed that the categories set out in Horowhenua County are strictly limited.14
[16] HGL relies on the third category of cases addressed in Horowhenua County, namely there is some other very special reason for the Judgment to be recalled. This category includes where the Court has failed to determine an issue properly put to it.15 The Court of Appeal in Unison Networks Ltd v Commerce Commission stated that the “basis for recall as articulated in Brake v Boot [sic] is intended to be a narrow one”.16 The Court further stated that:17
10 At [250] – [254].
11 At [255] – [261].
12 At [262] – [264].
13 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
14 Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [3].
15 Brake v Boote (1991) 4 PRNZ 86 (HC).
16 Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [23].
17 At [34].
… the Court's reasons and the issues it chooses to address are within the discretion of the Court. It will often be unnecessary to deal with all of the submissions presented because of the way in which a case is finally resolved. The Court plainly is able to address submissions in the manner it chooses. While a decision may be recalled where a material issue properly put before the Court is not addressed, excluding a slip or minor error, the cases in which justice will require a recall on this basis are likely to be rare.
[Emphasis added]
[17] The Court of Appeal has also endorsed High Court authority to the effect that the discretion to recall under the third category in Horowhenua County must be exercised with circumspection and must not in any way be seen as a substitute for an appeal.18 The authors of McGechan on Procedure, by reference to a number of authorities, further record that the recall jurisdiction does not extend to:
(a)a challenge to any substantive findings of fact and law in the judgment;
(b)a party recasting argument previously given, and representing them in a new form;
(c)putting forward further arguments that could have been raised at the earlier hearing but were not.19
The parties’ submissions
HGL’s submissions
[18] HGL acknowledges that much of the argument at the hearing focussed on substantive legitimate expectation. HGL submits, however, that it also argued “the more traditional ground” of legitimate expectation that “usually sits within judicial review and is subject to a far less stringent test than substantive legitimate expectation”. HGL states “it is frequently referred to as ‘procedural legitimate expectation’ but is not a cause of action in its own right”. On this basis, HGL submits “it does not, therefore, need to be separately pleaded.” 20
18 Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [5], with reference to Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC).
19 McGechan on Procedure (looseleaf ed, Thomson Reuters), at [HCR11.9.01(6)].
20 Referring to Fowler & Roderique v Attorney-General [1987] 2 NZLR 56 at 74.
[19] HGL says it argued two different procedural legitimate expectations in its closing submissions, namely that:
(a)the recommendation by Council officials to be put to the decision- making Acquisition Committee would recommend the acquisition of the land in question;21 and
(b)its expectations regarding the land would be taken into account as a mandatory relevant consideration.22
[20] HGL submits the former was not directly addressed in the Judgment. It says the latter was dismissed in the Judgment,23 but in the context of whether plaintiffs had a substantive legitimate expectation. It therefore submits the issue should have also been considered within the context of HGL’s application for judicial review, namely an alleged failure to take into account HGL’s legitimate expectation.
[21] In relation to s 78 of the Local Government Act, HGL notes this legislative provision was raised in HGL’s closing submissions as giving rise to a mandatory relevant consideration,24 but the Judgment did not make any finding as to the effect of s 78 on the Council’s decision-making process.
[22] Finally, HGL submits the manner in which the Court’s direction to the Council to reconsider its decision has been framed may be interpreted to mean that none of the background to the development of the land, or the dealings between the parties, needs to be taken into account when the decision is reconsidered. HGL submits that:
Whether or not these come under legitimate expectation, s 78 LGA or stand as [mandatory] relevant considerations in their own right, there should be clarity in the judgment that they are to be taken into account.
Council’s submissions
[23]As noted, the Council opposes the application for recall.
21 Referring to paragraph 45(d) of its closing submissions.
22 Referring to paragraph 54(c) of its closing submissions.
23 Hugh Green Ltd v Auckland Council, above n 1, at [240].
24 Referring to paragraph 57(c) of its closing submissions.
[24] The Council says the issue of procedural rather than substantive legitimate expectation was not properly put before the Court. The Council says HGL’s amended statement of claim pleaded a substantive legitimate expectation and at no point did HGL’s pleadings refer to a procedural legitimate expectation.
[25] The Council also notes that HGL relies on certain paragraphs of its closing submissions in its submission on the present application that procedural legitimate expectation was properly before the Court. It says, however, that those paragraphs were directed to HGL’s claim of substantive legitimate expectation only, and did not address any suggested obligation as to process, or a breach of process.
[26] To the extent that procedural legitimate expectation was properly before the Court, the Council notes the Judgment did not find any unambiguous policy, practice or representation that might have given rise to any procedural legitimate expectation in any event. The Council therefore submits “it is clear that the issue was addressed, even if not on the same basis that it was argued”.
[27] As to the suggested failure to address s 78 of the Local Government Act, the Council submits that the naming and effect of s 78 was not an issue before the Court that required comment in the Judgment. It submits there was no reference to s 78 in the pleadings and two “fleeting” references to it in HGL’s closing submissions were by way of descriptive background only, rather than reflecting a dispute between the parties requiring resolution. The Council also submits that neither HGL’s pleadings nor its submissions referred to the views or interests of the “local community or nearby homeowners” in any event, as now referenced in the submissions in support of the application to recall.
[28] On the framing of the direction to reconsider, the Council says that not giving a comprehensive list of considerations which it must take into account on its reconsideration of the decision is not a ground justifying recall. It submits the Judgment rightly does not purport to circumscribe the matters that ought to be taken into account by the Council when reconsidering its decision. It refers to observations of Cooke P in Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd, cautioning that the jurisdiction to give directions when ordering that a decision be
remade “must of course be exercised so as not to usurp the true statutory functions of the administrative authority”.25 The Council also refers to observations of Wylie J in Tasti Products Ltd v Auckland Council, that it was “preferable that I do not express a view on the matters the Council will be required to consider in [revisiting a notification decision]”.26
[29] The Council notes HGL’s application for recall seeks directions that the Council take into account five matters, and the submissions on recall include a further three matters. The Council says the overall effect of the recall application, now arguing that these are mandatory relevant considerations, is either an attempt to relitigate matters in the Judgment with which it is dissatisfied, or to introduce new matters not properly before the Court.
Discussion
[30] I am clear in my view that the application to recall either attempts to introduce new matters not properly before the Court or attempts to relitigate or reamplify matters with which HGL is dissatisfied. In my view, the proper course for HGL is to appeal the Judgment, should it wish to do so.
[31] As to procedural legitimate expectation, this was not raised in HGL’s pleaded case. Its pleaded case, as set out at [6] above, was firmly grounded in substantive legitimate expectation. This is evident, for example, by the relief sought on the legitimate expectation cause of action, which was to order the substantive outcome sought by HGL. I also do not accept that procedural legitimate expectation need not be pleaded. At the very least, the respondent decision-maker ought to know the claim being made against it. This would include the conduct, representations or other matters said to give rise to a legitimate expectation as to a certain process or procedure to be followed, how it is said that the applicant relied on that promised process or procedure, and how it is said that the decision-maker breached the promised process or procedure. Nor do I read Fowler & Roderique v Attorney-General as authority for the proposition that a claim of procedural legitimate expectation need not be pleaded.
25 Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd [1994] 2 NZLR 641 (CA) at 648.
26 Tasti Products Ltd v Auckland Council [2016] NZHC 1673, [2017] ELRNZ 555 at [89].
Indeed, the Court in Fowler & Roderique v Attorney-General was not considering the requirements of pleading of applications for judicial review.
[32] Further, HGL’s opening submissions, outlining its case, were clear that its claim was grounded in substantive legitimate expectation only. It referenced the doctrine of “substantive legitimate expectation”; acknowledged that a successful set of facts had not yet been presented in New Zealand; set out the elements of substantive legitimate expectation; and why HGL’s case was said to be a “paradigm case”.27
[33] Nor am I persuaded that the content of paragraphs 45(d) and 54(c) of HGL’s closing submissions gave rise to a claim of procedural legitimate expectation, either at all, or as a material issue properly before the Court. As noted, procedural legitimate expectation was not pleaded by HGL or referenced in opening. It would be unusual for a “material issue” properly before the Court to not feature at all in the pleaded case, given the very purpose of pleadings is to inform the Court and the defendant/respondent of the case that is to be met and determined. There was no application by HGL during the hearing to further amend its claim to include procedural legitimate expectation.
[34] Paragraph 45(d) of HGL’s closing submissions was a response to an anticipated closing submission to be made on behalf of the Council, namely that the Council officers involved in discussions with HGL did not have the authority to bind the decision-making committee on whether to acquire the land in question. The paragraph states that the Council officials told HGL that they believed the land would be acquired. This does not raise, squarely or otherwise, procedural legitimate expectation as a material issue properly before the Court.
[35] Further, the Judgment did address HGL’s claim that its legitimate expectation was a mandatory relevant consideration which ought to have been but was not taken into account, in the context of HGL’s application for judicial review. Paragraph 54(c) of HGL’s closing submissions, on which HGL relies in this context, states that “a legitimate expectation is a mandatory consideration in decisions affecting that expectation”, citing Paponette v Attorney General of Trinidad & Tobago as authority
27 HGL’s opening submissions at paragraphs 26-28.
for that proposition.28 Paponette is a case concerning substantive legitimate expectation.29 Further, while it may the case that a procedural legitimate expectation is a mandatory relevant consideration,30 the fact remains that that was not the legitimate expectation pleaded or argued for by HGL. Its claim that its substantive legitimate expectation ought to have been but was not taken into account as a mandatory relevant consideration was addressed and dismissed in the Judgment at [240].
[36] I arrive at a similar conclusion in relation to s 78 of the Local Government Act. There was no reference to this provision in HGL’s pleaded claim, either by way of being a mandatory relevant consideration which the Council ought to have but failed to take into account, or otherwise. Nor was it referenced in HGL’s opening submissions.
[37] The Judgment expressly addressed and made findings on those mandatory relevant considerations which HGL pleaded ought to be taken into account but were not.31 I noted s 78 of the Local Government Act was a relevant part of the broader statutory framework, in the context of which the underlying provisions of the Plan concerning open space in the Flat Bush area were mandatory relevant considerations to be taken into account.32 I also expressly turned my mind to and focussed the Judgment on the application for judicial review as pleaded by HGL, rather than some of the broader submissions raised in closing.33 As noted, HGL did not apply during the hearing to further amend its claim. HGL’s remedy, if it considers I was wrong in focussing the Judgment on its pleaded case, is to appeal.
[38] Finally, I am not satisfied the formulation of the direction to reconsider is unclear, or sufficiently unclear, to warrant recall.
[39] First, s 4(5) of the Judicature Amendment Act 1972 (now s 17 of the Judicial Review Procedure Act 2016) empowers the Court to direct reconsideration of a
28 Paponette v Attorney General of Trinidad & Tobago [2010] UKPC 32 at [46].
29 See, for example, the discussion at [27]-[35].
30 See, for example, R (Bibi) v Newham London Borough Council [2002] 1 WLR 237 at [51].
31 Hugh Green Ltd v Auckland Council, above n 1, at [216]-[249].
32 At [221] and [223].
33 At [212].
decision, either generally or in respect of any specified matters, and to give such directions as it thinks just. Accordingly, a comprehensive list of matters to be taken into account on a reconsideration is not required. The formulation of the direction to reconsider in this case is orthodox.
[40] Second, the Judgment is clear that other than the failure to take into account certain mandatory relevant considerations, HGL’s claims were dismissed. In reconsidering its decision, the Council will need to take into account the mandatory relevant considerations it failed to take into account. The formulation of the aspects of the Plan which ought to have been taken into account reflects the contents of HGL’s statement of claim.34
[41] Third, it is of course open to the Council to take into account a range of other matters when reconsidering its decision, so long as they are relevant (and thus not irrelevant) considerations. It is not necessary or appropriate for the Court to direct the Council on what it should take into account in this regard.
[42] Finally, other aspects of the statutory framework, such as ss 77 to 80 of the Local Government Act expressly require a local authority to consider or take into account certain matters in its decision-making process. It is unnecessary for the Court to direct the Council on those matters.
Result
[43] For the above reasons, the application to recall the Judgment is dismissed. The proper course is for HGL to appeal the Judgment.
Costs
[44] Auckland Council, having been successful in opposing the application for recall, is entitled to costs in the ordinary way. On the materials before the Court, I can see no reason why costs on scale 2B basis ought not to be awarded, and I can see no basis for increased or indemnity costs.
34 See paragraph 30(a) of HGL’s statement of claim.
[45]Should the parties not agree costs, the following timetable orders apply:
(a)Auckland Council may file a costs memorandum within 10 working days of this judgment; and
(b)HGL may file a memorandum in reply within a further 5 working days.
[46] No memorandum is to exceed 5 pages in length. I will then determine costs on the papers.
Fitzgerald J
0
5
0