Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery

[2012] NZHC 1810

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-000500 [2012] NZHC 1909

BETWEEN  INDEPENDENT FISHERIES LIMITED First Applicant

ANDR S PEEBLES Second Applicant

ANDCASTLE ROCK ESTATE LIMITED Third Applicant

ANDG F CASE, M M CASE AND MGM CASE Fourth Applicants

ANDPROGRESSIVE ENTERPRISES LIMITED

Fifth Applicant

ANDCLEARWATER LAND HOLDINGS LIMITED

Sixth Applicant

ANDTHE MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY

First Respondent

ANDCANTERBURY REGIONAL COUNCIL, CHRISTCHURCH CITY COUNCIL, WAIMAKARIRI DISTRICT COUNCIL, SELWYN DISTRICT COUNCIL AND NEW ZEALAND TRANSPORT AGENCY Second Respondents

Hearing:         Dealt with on the papers

Judgment:      1 August 2012

JUDGMENT OF CHISHOLM J AS TO STAY/INTERIM RELIEF

INDEPENDENT FISHERIES LIMITED V THE MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY HC CHCH CIV-2012-409-000500 [1 August 2012]

[1]      By judgment delivered on 24 July 2012 I set aside chapters 12A and 22 that had been inserted into the Regional Policy Statement by the first respondent.  I also set aside his decision revoking Plan Change 1 to that policy statement.

[2]      Canterbury Regional Council has appealed to the Court of Appeal and seeks an order staying execution of those orders or interim relief in the nature of a stay pending determination of that appeal.   The Council’s application is supported by Christchurch City Council, Waimakariri District Council, Christchurch International Airport Limited and Highfield Park Limited.

[3]      The applicants oppose the application, primarily on the basis that there is no jurisdiction to grant it. The first respondent abides the decision of the Court.

The application

[4]      As I understand it, the Regional Council and those supporting it, rely on any one or more of the following to confer jurisdiction:  rule 20.10 of the High Court Rules; s 8 of the Judicature Amendment Act 1972; rule 12 of the Court of Appeal (Civil) Rules; and the Court’s inherent jurisdiction.   They submit that it is a fundamental part of “our constitutional rights to have appeals heard and to have the effectiveness of that right of appeal preserved.”

[5]      The Regional Council contends that Willowford Family Trust v Christchurch City Council1  (which is relied on by the applicants to support their proposition that there is  no  jurisdiction)  is  distinguishable.    On  its  analysis  the  following cases support the proposition that there is jurisdiction:  Fullers Bay of Islands Limited v Otehei  Bay  Holdings  Limited,2   Area  One  Consortium  Ltd  v Treaty  of  Waitangi Fisheries Commission,3     Avowal Administrative Attorneys Limited v The District

Court At North Shore,4 Diver v Loktronic Industries Limited.5

1 Willowford Family Trust v Christchurch City Council [2006] 1 NZLR 791 (HC).

2 Fullers Bay of Islands Limited v Otehei Bay Holdings Limited HC Auckland CIV 2009-404-007207,

2 November 2010.

3 Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission (1993) 7 PRNZ at 200.

4 Avowal Administrative Attorneys Limited v The District Court At North Shore (2009) 24 NZTC 23 at

486.

5 Diver v Loktronic Industries Limited [2012] NZCA 272.

[6]      It is submitted that if the relief granted in the judgment remains in force pending determination of the appeal, the second respondents’ right of appeal would be rendered nugatory.  This is on the basis that during that period applications for plan changes or resource consents would be determined without the protection conferred by chapters 12A and 22 and that further steps could be taken by the Environment Court before the matter is determined by the Court of Appeal. Disruption to the planning process, the interests of third parties and the overall public interest in preserving the position pending appeal are also relied on.

Opposition to the application

[7]      The applicants contend that having set aside chapters 12A and 22 and the decision revoking Plan Change 1 on the basis of unlawfulness, it would be unconstitutional for this Court to now reverse that step and thereby require people to act unlawfully.  Willowford is applicable.  There is nothing to execute, and/or there are no proceedings to stay.   The setting aside of the Minister’s decision on the grounds of illegality became operative once this Court’s decision was delivered on

24 July 2012. There is no turning back.

[8]      There is no execution of a judgment that the Court can stay or prevent.  The judgment was non-executory.  A stay must have prospective application, applying to matters or things that must be done or attended to in the future.  Here, a stay, were one available, would  need  to  have retrospective application  back  in  time.   The respondents are seeking something in the nature of a mandatory injunction.   The cases relied on by the respondents are distinguishable.

[9]      In  relation  to  Plan Change 1  the Court  is  effectively being  asked to  do something that would be constitutionally repugnant:  namely, to repeat and do what the Minister was held to have done unlawfully.   When exercising its jurisdiction, including its inherent jurisdiction, the High Court must act lawfully and removing the jurisdiction of the Environment Court, even on a temporary basis, would be unlawful.

[10]     No compelling justification for the orders has been made out.  If the appeal to the Court of Appeal succeeded then the Minister’s decisions will be restored.  There is no evidence to support the contentions advanced by the respondents about the prejudice that would arise in the meantime.

Discussion

[11]     The issue that now confronts this Court arose in Willowford.  Having quashed bylaws concerning brothels in Christchurch, Panckhurst J was asked to grant a stay or provide relief in the nature of a stay pending determination of an appeal to the Court of Appeal. The primary opposition to such orders was jurisdictional.

[12]     Panckhurst J concluded that there was no jurisdiction to grant interim relief, even on a partial basis.  He reasoned:

[22]      ...The absence of any previous cases in which, pending appeal, a stay or interim relief has been granted in the context of a declaration of invalidity is, I think, confirmation of the fact that jurisdiction is absent.  It is one thing to stay a proceeding which is extant, or to stay an order which is executory in nature, but the present declaration became operative when it was made. To contemplate the revival at this point of a bylaw which I have found to be invalid impresses me as conceptually wrong.

Later,6 he commented that once a Court has determined that a particular provision is invalid, it is antithetical to that determination to contemplate recognition of the provision  as  lawful,  even  in  the short  term.   Thus  he found that  there was  no jurisdiction to order a  stay,  grant interim relief, or to intervene pursuant to the Court’s inherent jurisdiction.

[13]     For the Regional Council Mr Ormsby sought to distinguish Willowford on the following basis:

a.In Willowford, the Court granted a declaration of invalidity and then quashed the by-law.  The situation is one of inherent unlawfulness. The by-law was contrary to what was allowed under the statute.  It had been quashed.

b.In this instance the Court has found a misapplication of statutory power,  rather  than  the  instrument  or  regulation  which  was  the

subject of the decision being ultra vires.  Neither the Act itself nor the instrument/regulation was inherently unlawful.

I do not agree.  Both cases involved unlawfulness, and equally importantly, the Court quashed or set aside the offending instrument/decision.  The Court is being asked to effectively reinstate an instrument/decision it has found to be unlawful.

[14]     In  my  view  Willowford  cannot  be  distinguished.    Moreover,  I  find  the reasoning of Panckhurst J compelling.  Added to that it seems to me that Willowford is compatible with the other cases relied on in support of the application, and that those cases are distinguishable.

[15]     While the lease in Fullers had been declared to be unlawful, the important point is that it had not been quashed.   It was on that basis that Andrews J distinguished Willowford.   She did not consider that the decisions she had made constituted an “absolute result” of a nature that would have precluded jurisdiction to

order a stay.7   Thus Andrews J considered that she had jurisdiction to make an order

in the same manner as Area One and Avowal.8

[16]     In Area One the applicants had applied for judicial review of the respondents’ decision to allocate fishing quota and for an interim order preventing the allocation of quota from proceeding.   The latter application was dismissed and some of the applicants filed appeals against that decision.   The applicants then applied for an order in the nature of a stay to prevent the respondent from allocating quota pending the appeal.  An order was made.   In my view this was an orthodox stay situation involving an order that was executory in nature.

[17]     Avowal concerned judicial review of actions by the Commissioner of Inland Revenue for the purpose of assisting the Australian Tax Office.  The Court dismissed some of the challenges and upheld others.  After an appeal to the Court of Appeal was lodged, an order was sought preventing the Commissioner from taking further steps in relation to various documents.   A stay was granted.   Again this was an

orthodox stay situation.

7 At [38].

[18]     Finally,  Diver  was  relied  on  by  the  respondents  to  support  a  wide  and purposive approach to the ability of the Court to grant relief.   However, as the applicants have pointed out, this was not a judicial review case and it has little direct relevance.  Unfortunately the reality is that if the Court has no jurisdiction it must decline to act even though that might seem to be an extreme reaction.

[19]     For those reasons I am driven to the conclusion that I have no jurisdiction to grant the application.  I should also add that had it been necessary for me to consider whether failure to grant relief would render the appeal nugatory, I would not have been inclined to accept that proposition.

Result

[20]     The application for a stay or other form of interim relief is dismissed.

[21]     My preliminary view is that the Regional Council should pay the applicants costs on the 2B scale and that the costs of any other parties/interveners involved in the application should rest where they fall.  However, if any party/intervener wishes to advance submissions to the contrary they should file and serve a memorandum not exceeding three pages by 15 August 2012. Any responses should be filed and served by 31 August 2012.

Solicitors:

FMR Cooke QC,  [email protected]

Pru Steven,  [email protected]

Russell McVeagh,  [email protected] Anthony Hughes Johnson QC, Christchurch,  [email protected] Crown Law, Wellington,  [email protected]

Wynn Williams, Christchurch,  [email protected] Wynn Williams, Christchurch,  [email protected] Simpson, Grierson, Wellington,  [email protected] Chapman Tripp, Christchurch,  [email protected] Anderson Lloyd, Dunedin,  [email protected]

Anderson Lloyd, Christchurch,  [email protected]

Adderley Head,  [email protected]