Inder v The Commissioner of Crown Lands HC Christchurch CIV 2009-409-1219
[2010] NZHC 788
•28 May 2010
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV 2009-409-001219
BETWEEN CHARLES LAURENCE JOHN INDER, WILLIAM MURRAY SCOTT, JOHNSTONE DOUGLAS HORE, GRANT MALCOLM GEDDES, JOHN MURRAY SCOTT, ALAN KENNETH SCOTT, CHARLES LAURENCE INDER AND HARRIS INGLIS HUNTER (KNOWN AS THE MOUNT IDA SYNDICATE), AND PERPETUAL TRUST LIMITED
Plaintiffs
ANDTHE COMMISSIONER OF CROWN LANDS
Respondent
Hearing: 24 May 2010
Counsel: NRW Davidson QC and K Mouat for Plaintiffs
M T Parker for Respondent
Judgment: 28 May 2010
JUDGMENT OF FOGARTY J
Introduction
[1] This is an application for leave to cross-examine officers from Land Information New Zealand (LINZ) and Department of Conservation (DOC) who have filed affidavits in proceedings brought by way of judicial review against the Commissioner of Crown Lands. The applicants for review are a number of farmers
and farming interests who together as the Mt Ida Syndicate have grazed some
INDER AND ORS V THE COMMISSIONER OF CROWN LANDS HC CHCH CIV 2009-409-001219 28
May 2010
tussock land in the headwaters of the Otematata River below the Ida Range in North Otago. The block of land in question fills a gap between two areas of the Oteake Conservation Park. The other part of the gap is filled by another block of land that has been grazed by an overlapping group of farmers called the Soldiers Syndicate.
[2] Cross-examination is not permitted as of right in judicial review proceedings. The Court will not allow a Minister of the Crown to be cross-examined in such proceedings unless this is clearly necessary to enable the case to be disposed of fairly: Minister of Energy v Petrocorp Exploration Limited [1989] 1 NZLR 348 at
353. That test was applied by the Court of Appeal to all applications for cross- examination of makers of affidavits and applications for judicial review in Geary v Psychologists Board [2009] 19 PRNZ 409 at [23]. That was a case where there were allegations of bias and predetermination. This is the situation here. The Court of Appeal in Geary recognised that in such cases there may be issues which require particular attention so that as a matter of fairness cross-examination must be necessary to enable the allegations to be advanced. This is particularly where there are factual disputes, see paragraphs [25] and [26]. As I read the case, the ultimate test is whether or not in the particular circumstances of the case the Judge is led to the conclusion:
… that justice cannot be done between the parties in the absence of cross- examination.
(See paragraph [27])
[3] In Health Advocates Trust v Director of Health and Disability Services
Consumer Advocacy On Behalf of the Crown And Ors HC AK CIV 2006-404-
006066 18 December 2006. Asher J says:
[65] I allowed some very limited cross-examination of Ms Strid on certain specific issues. These included whether she had a pre-determined view that advocacy services had to be by a single entity, and whether Ms Strid was being truthful when she asserted that she took into account the HAT financial and budget situation when she made her decision.
[4] Whakatane District Council v Bay of Plenty Regional Council (2008)
19 PRNZ 91 was referred to in Geary and is another case where limited cross- examination was permitted of allegations about predetermination. In her discussion,
Duffy J identified the difficulty of determining cross-examination leave applications in part because the shape of the case can alter once the hearing commences, [52]. However, she was presented with a schedule setting out narrow topics for cross- examination, [54], [55], allowing cross-examination on certain matters identified in the schedule. She allowed cross-examination on whether or not certain events took place but declined questions seeking opinion type answers or which were no more than fishing.
[5] Duffy J’s approach is consistent with the guidance to be found from an examination of the Petrocorp decision where the President said at 354:
We do not consider that anything significant in the decision of the question is likely to be gained by cross-examining the Minister about his opinions, understandings or purposes.
[6] In this case some of the cross-examination sought of the witnesses is for the purpose of challenging the witness’ narrative of events with other events which are not referred to, in order to challenge the integrity of the process. I will scrutinise the need for those events to be put to a witness. Normally the integrity of the process, however characterised, is reviewed on the record, drawing inferences where appropriate.
[7] From these authorities, it seems to me that the task of the Judge at this stage is to identify the issues, consider the record, consider whether there are significant factual disputes, and consider whether justice can or cannot be done between the parties in the absence of cross-examination. As a preliminary step the Court needs to understand the decision making process prescribed by Parliament. I note that this means that the Court is embarking on an analysis also required for final disposition of the review.
The character of the administrative conduct under challenge
[8] A delegate of the Commissioner of Lands, Mr Lysaght, was conducting a review under Part 3 of the Crown Pastoral Land Act 1998 (CPLA). The land grazed
by the Mt Ida Syndicate is Crown land. They and their predecessors had been grazing it in the summer months since 1901.
[9] Since the early 1960s there had been a debate regarding the continued grazing of the land. Licences to graze the land have been granted for varying periods of time since then. A 21 year licence was issued on 1 July 1978. When that expired another licence was issued for a term of five years commencing 1 July 1999. It did not contain a right of renewal. This licence was first issued under s 83 of the Land Act 1948 but was then replaced with an occupation licence under the CPLA. On
7 February 2001, but still being for a term of five years commencing on 1 July 1999.
[10] From that point in time the land inevitably became subject to a review, for it was an unrenewable occupational licence. Section 86(1)(a) provides:
86 Commissioner to review certain Crown land
(1) The Commissioner -
(a) Must undertake reviews of all land for the time being held under an unrenewable occupation licence; and
…
[11] The review is for the Commissioner to devise a preliminary proposal to designate the land in one of five ways. Relevantly s 86(4), (5) and (6) provide:
(4) After conducting any review, the Commissioner must devise a preliminary proposal to designate the land concerned in accordance with subsection (5).
(5) The land (or various areas of it) must be designated as -
(a)Land to be retained in full Crown ownership and control - (i) As conservation area; or
(ii) As a reserve, to be held for a purpose specified in the proposal; or
(iii) For some specified Crown purpose; or
(b) Either or both of the following:
(i)Land suitable for disposal by special lease (on terms specified in the proposal):
(ii) Land suitable for disposal in fee simple under the
Land Act 1948.
(6) If a preliminary proposal designates any land as land suitable for disposal by special lease, land suitable for disposal in fee simple, or both, it may designate it subject to either or both of the following things:
(a) The creation of a sustainable management covenant: (b) The continuation in force of an existing easement.
[12] Part 3 of the CPLA does not set out criteria that the Commissioner should take into account. However, it does contain an object section. Section 83 provides:
83 Objects of Part 3
The objects of this Part are—
(a)To promote the management of Crown land in a way that is ecologically sustainable; and
(b) To enable the protection of significant inherent values of
Crown land; and
(c) Subject to paragraphs (a) and (b), to make easier—
(i) The securing of public access to and enjoyment of
Crown land; and
(ii) The freehold disposal of Crown land capable of economic use.
“Ecologically sustainable” is not defined.
“Inherent values” and “significant inherent values” (SIV) are defined:
Inherent value, in relation to any land, means a value arising from -
(a)A cultural, ecological, historical, recreational, or scientific attribute or characteristic of a natural resource in, on, forming part of, or existing by virtue of the conformation of, the land; or
(b) A cultural, historical, recreational, or scientific attribute or characteristic of a historic place on or forming part of the land:
Significant inherent value, in relation to any land, means inherent value of such importance, nature, quality, or rarity that the land deserves the protection of management under the Reserves Act 1977 or the Conservation Act 1987:
[13] Before undertaking a review the Commissioner must consult the Director- General of Conservation, s 85(1) and (3).
[14] The Director-General of Conservation is, subject to the control of the Minister of Conservation, the administrative head of the Department. This Department is established by the Conservation Act 1987. Under that Act it is given the power to advocate the conservation of natural and historic resources generally, see s 6.
[15] It follows, by way of summary to this point of the process:
(i)That Parliament has imposed a duty on the Commissioner to review the land subject to the Mt Ida occupation licence; and
(ii)To devise a preliminary proposal designating the land either to be retained in full Crown ownership and control in one of three different categories, or, as suitable for disposal by lease, or, in fee simple, in which case it may also be subject to a variety of covenants including a protective mechanism.
(iii)This exercise has to be conducted in accordance with the objects of Part 3 so as to promote the management of this land in a way which is ecologically sustainable, will protect significant inherent values (if any), and, subject to these objects make it easier to secure public access and enjoyment to it and if it is capable of economic use for its freehold disposal.
(iv)The power of decision making is not given to the Director-General of Conservation, to the Minister of Conservation, or to the Commissioner’s Minister, the Minister of Lands and Information.
(v) The Director-General must be consulted before undertaking a review.
(vi) At any time the Commissioner can consult anyone, including the
Director-General.
[16] Mr Lysaght conducted the review and devised a preliminary proposal designating the land for restoration for full Crown ownership and control.
[17] The Commissioner (by another delegate, Mr Usherwood) took the next step (after consultation on the preliminary proposal, s 88) of adopting a written substantial proposal, being substantially the same as the preliminary proposal, exercising his power under s 89.
[18] The plaintiffs then exercised their rights to apply for a rehearing of that decision to adopt a written substantive proposal. After obtaining access to the file the plaintiffs’ solicitor filed a lengthy submission in support of the application for rehearing. Nine days later, the Commissioner, Mr Gullen, decided against granting a rehearing, confining his enquiry to Mr Usherwood’s decision to adopt the substantive proposal.
The grounds for relief in the statement of claim
[19] The statement of claim separates out four grounds for relief: (a) Improper direction;
(b) Breach of natural justice by predetermination;
(c) Lack of consistency with treatment of the neighbouring Soldiers
Syndicate;
(d)Breach of a legitimate expectation that there would be a rehearing regarding the substantive proposal.
[20] As Asher J had occasion to observe in Health Advocates Trust, pleaded grounds of review tend to overlap. It is important to understand that, while it is appropriate, and helpful, for grounds of review to be separated in statements of claim, the High Court when exercising its jurisdiction of review is not confined to the parties’ definition of the issues as contained in the statements of claim and
statements of defence. The vital constitutional task of the High Court to ensure Government under law means that it is the Judges who review administrative action. In the course of oral argument I observed to counsel alternative ways of formulating the grounds, including issues that appeared to me of whether or not the decision makers took into account all the relevant factors. The characterisation of the grounds in the pleadings does not bind the Court, which can separate out an issue for separate consideration. I suggest such a separation at the end of this judgment.
[21] In summary the contentions in the statement of claim are that Mr Lysaght made the decision to recommend a preliminary proposal restoring the land to full Crown ownership and control at the request and/or direction of either the Director- General of Conservation or the Minister of Land Information. It is further contended that the Commissioner (by way of delegates’ decisions or personally) had predetermined the outcome of the review in order to pursue the creation of the Oteake High Country Park. Third, that there was no reason why the Mt Ida land should be treated any differently from the neighbouring Soldiers Syndicate land so that the different treatment was unreasonable in a reviewable sense of that word. Finally, that the plaintiffs had been led to believe, from Mr Lysaght, that they would be granted a rehearing in the event of there being a decision to make the resumption of full Crown ownership and control a substantive proposal.
The affidavits filed in defence of the claim
[22] Affidavits have been filed by the Commissioner, Mr Gullen, and his two delegates, Mr Lysaght and Mr Usherwood and an affidavit has been filed by the Otago Conservator of the Department of Conservation, Mr Connell. There is also an affidavit filed by a DOC officer working in high country tenure review, Mr Whittaker, which is largely an opinion on the comparability of the Soldiers and Mt Ida lands.
[23] The applicant wishes to cross-examine these persons, on parts of their affidavits, and has provided a schedule as follows:
Witness Area of Evidence for Cross
Examination
Reference to Affidavit
David Joseph
Gullen
(1) Predetermination of decision to decline re-hearing to ensure land was transferred to the Department of Conservation to enable the creation of the Oteake High Country Park.
(2) Plaintiffs’ legitimate expectation that they would be granted a re- hearing.
Paragraph 24
Paragraphs 8, 9, 15-19,
24 and 25 and exhibit
“DG-2”Timothy James
Whittaker
(1) Consistency of treatment between Soldiers Syndicate and Mt Ida Syndicate.
(2) Predetermination of decision to decline re-hearing to ensure land was transferred to the Department of Conservation to enable the creation of the Oteake High Country Park.
Paragraph 33
Paragraph 38
Brian John
Usherwood
(1) Predetermination of decision to decline re-hearing to ensure land was transferred to the Department of Conservation to enable the creation of the Oteake High Country Park.
(2) Consistency of treatment between Soldiers Syndicate and Mt Ida Syndicate.
(3) Mr Usherwood’s view that each review is different.
Exhibit “BC-1” Paragraph 11
Paragraphs 12-14
Exhibit “BC-3” –
paragraphs 10, 27 and 28
Jeffrey Edward
Connell
(1) Predetermination of decision to decline re-hearing to ensure land was transferred to the Department of Conservation to enable the creation of the Oteake High Country Park.
Paragraph 2, 22-29, exhibit “JC-1” (Part 4)
Robert William
Lysaght
(1) Deciding to recommend restoring the land to full Crown ownership and control at the request and/or direction of the Director-General of Conservation and/or the Minister of Land Information
(2) Predetermination of decision to decline re-hearing to ensure land was transferred to the Department of Conservation to enable the creation of the Oteake High Country Park.
(3) Consistency of treatment between Soldiers Syndicate and Mt Ida Syndicate.
(4) Plaintiffs’ legitimate expectation that they would be granted a re- hearing
Paragraphs 23 to 32, 51,
52, 55
Paragraphs 23 to 32, 34,
51, 52, 55
Paragraphs 41 to 48
Paragraphs 18 to 21, 54
[24] The Commissioner opposes the application for cross-examination. Mr Parker’s principal argument is that the application provides no reasons to justify cross-examination at all. Second, that the scope of the cross-examination was ill- defined, and not necessary.
[25] Developing the first argument, Mr Parker submitted that the criteria in s 83 are the only criteria the Commissioner has to meet; that satisfying the interests or otherwise of former occupiers of the land is not an object of the Act. The only right that a holder of an occupational licence has is to apply for a rehearing of the Commissioner’s decision to adopt the substantive proposal. Under s 86(5)(a)(iii) the land can be designated for some specific purpose and there is nothing in the CPLA which prevents that specified purpose from being identified before the review is undertaken. He concluded:
… Given that, it is difficult to see how normal administrative law, principles relating to predetermination and/or bias apply to this process.
[26] There is no doubt that the appellants have a serious argument that the Commissioner when engaged in the review has a duty to make a decision, which is his. Any submission by the Director-General or any other Government agency as to
the desirability of this land to form part of the Oteake Park, is obviously a relevant consideration. This process, however, is characterised by Parliament as a “review”. There is a substantial argument that it cannot be predetermined, that it must be conducted fairly, and that the public law principles relating to predetermination and/or bias apply to the process.
[27] The second part of Mr Parker’s argument was that cross-examination should only be allowed, in rare instances, and only after the scope of cross-examination has been defined with some particularity. He submitted that it was insufficient for the plaintiffs here to merely identify the sections of the affidavit which will be subject to cross-examination without eliciting the purpose of the cross-examination, or the type of questions, or the subject matter of the cross-examination.
[28] As the Court of Appeal observed in Geary, in cases where the allegation is that the process miscarried procedurally the Judge at first instance may well come to a conclusion that the only fair way of assessing the merits of such allegations, which are always very serious, is to have the benefit of cross-examination, rather than to be left with drawing inferences from the record. Fairness in this regard cuts both ways. It is a very serious allegation to make of an official that the official has not followed the process set by Parliament. Conversely, it is a basic requirement of the rule of law that private citizens, particularly those who are adversely affected, are entitled to test whether public officials discharged their obligations in the manner prescribed by Parliament.
[29] From this perspective then I examine Mr Parker’s arguments in two steps:
1.Is there an evidentiary threshold for these allegations that the process was derailed; and if so,
2.Is it necessary in order to do justice to all the parties, including the officials concerned, to hear them being cross-examined as to how they went about the process, rather than rely on the record?
[30] I keep in mind that the Crown is not obliged to file affidavits by the persons involved in the decision making, in any judicial review. Normally the record speaks for itself. Where the Crown does produce evidence by the persons involved it is desirable for the evidence to be full and candid. If it is not, it invites an adverse inference, and can promote an application for cross-examination. I draw the standard of “full and candid” from the judgment of the President in Petrocorp at 352.
[31] Mr Parker analysed the cross-examination issues in order of the reasons for cross-examination appearing under the column “Area of Evidence for Cross Examination”. I prefer, however, to do the analyses in chronological order of decision making, and per witness.
Mr Lysaght
[32] LINZ engaged DTZ New Zealand Limited to undertake investigations and make a report of recommendations regarding a preliminary proposal. A submission was made by Mr Taylor of DTZ in September 2002. He recommended that the land be retained in full Crown ownership and control as a conservation area, that is, that it be designated as a conservation area under s 86(5)(a)(i).
[33] After considering this report Mr Lysaght recorded in the DTZ cover letter the following handwritten note:
The discussion needs to be enlarged to deal with the options available and why this particular option has been selected as opposed to other options particularly dealing with the long period of grazing, apparent sustainability, impact of grazing on other SIVs, landscape, vegetation damage, options for control of damage etc.
[34] Mr Lysaght communicated this note verbally to Mr Taylor who advised him he would submit a more complete submission and withdraw this one.
[35] In October Mr Lysaght received a further submission from Mr Taylor of DTZ. He refers to receiving this in his affidavit, but does not record its recommendation or summarise its reasoning. This submission was a revised submission. (It came with a request that it replace the relevant pages of the
September submission.) It recommended that the entire land area contained in the current occupation licence be disposed of by special lease. That is, it was a recommendation for designation under s 86(5)(b)(i). It recorded the advice of the Director-General of Conservation delegate that the land should be restored to full Crown ownership and control which would provide an opportunity to ensure the inherent values would be protected from grazing by domestic stock. It observed:
The CPL Act appears to provide a middle ground and the opportunity to dispose of the land by special lease. This mechanism allows the Crown to establish criteria to protect inherent values and manage the land in a manner that is ecologically sustainable. This option would recognise the compatibility between grazing and the increased vegetative vigour witnessed over recent years.
[36] Mr Lysaght says in his affidavit that he subsequently proceeded on the basis that he had two (DTZ) submissions. He then says:
I consider that the recommendation in the October submission did not meet the objects of Part 3 with regard to ecological sustainable management and protection of the significant inherent values so I decided to accept the recommendation with the first [September] submission that the land be designated to be restored to Crown control as a conservation area.
[37] On about 13 June 2003 he recorded this thinking in his reasons in a three page paper headed “Mt Ida Syndicate Review Under Part 3 CPLA”. Under the heading “Decision” Mr Lysaght says:
In considering the total information available to me I am of the opinion there is proven significant damage to the SIVs on this property and this damage due to localised stock concentration of sheep is having a significant detrimental impact on the vegetation (a SIV) at the following points:
• Margins of fellfield – tussock grass lands (this is at high altitude)
• at bogs and tussock margins and
• at eastern hill slopes above the Otematata River
It goes on in a similar vein. This was his reasoned devising of a preliminary proposal.
[38] Mr Davidson QC wants to argue that he wrote this decision by direction of another. Another formulation of this proposition, to my mind, is that the reasons of
this decision did not in truth reflect Mr Lysaght’s views. Mr Davidson wants to cross-examine Mr Lysaght’s propositions in his affidavit against the whole of the record. He refers to another document written by Mr Lysaght earlier, on 10 March
2003, and to a contemporaneous decision by Mr Lysaght in respect of the Soldiers
Syndicate.
[39] The March document was a personal letter from Mr Lysaght to one of the applicants, Mr Inder, thanking him for allowing him and some friends (22 in total, eight vehicles) to pass through the Soldiers and Mt Ida Syndicate properties on Saturday, 8 February 2003. In this note he advises that he had with him information on the geology, flora and fauna, other historical information and similar from the DOC resources report on these two properties. He later says in the letter:
Laurie, I was impressed yet again with the appearance of the country and to my untrained eye it looked great. We didn’t have the time to too often walk into the tussocks so my observations were mainly from the tracks. You mentioned that a significant portion of the stock were already on the properties but these were not very visible at all and in fact we probably only saw about 200 in total and these in small groups. Of course there is those areas of depleted tussock cover particularly along parts of Long Spur and the very visible hieracium on the far side of Guffies Creek near Tailings Creek hut but overall we were all impressed with the naturalness of the place and that upland plateau is really something with its huge vista and tussock for miles …
[40] The Soldiers Syndicate was also subject to a Part 3 review, entrusted to Mr Lysaght. Here are some findings of fact made by this Court in the judgment of French J of 30 October 2008 in the case of Kyeburn Downs Limited And Ors v Commissioner of Crown Lands HC DUN CIV 2008-412-000197:
[15] After notification to the plaintiffs about the review, there followed several inspections of the land, a report called a land status and due diligence report, consultation with Fish and Game, two Department of Conservation reports, a report from local iwi, consultation with the plaintiffs, as well as reports from DTZ. In its first report, DTZ recommended the land be restored to full Crown ownership, but in its second report, having undertaken further work requested by Mr Lysaght, DTZ recommended disposal by way of special lease.
[16] On 12 February 2003, Mr Lysaght wrote an email to DTZ in the following terms:
After having explored all of the possibilities available to me and having read and re-read the various reports and submissions I have
come to the conclusion that there is really only one option for this land, that is to designate the land as suitable for disposal by special lease.
[17] The email went on to say that the terms of the special lease would need to be completed before public advertising and advice to the holders. It ended by stating:
… at this stage whilst I have made a decision as to the future of the land the final conditions are not yet in place so the matter is confidential. I note that at standard 12 clause 7.3 consultation with the DGC [Director General of Conservation] and at least the holder has to take place on the preliminary proposal and I think that will be the appropriate time to disclose the decision.
[18] The following month, on 26 March, Mr Lysaght wrote to the Department of Conservation, advising the Department of his decision and seeking their co-operation with the preparation of a special monitoring agreement. The advice as to his decision was formulated in the following terms:
I wish to advise that acting under delegated authority I have made a decision in the review under Part 3 of the Crown Pastoral Land Act
1998 of this Occupation Licence.
The decision is that the land be designated as land suitable for disposal by special lease pursuant to s86(5)(b)(ii) of the CPLA.
[19] The Department of Conservation was highly critical of the decision. Its regional manager wrote to Mr Lysaght to record the Department’s
… very strong disappointment over the decision you have made on this review. Your decision does not meet our legitimate expectations from this review and is not the outcome we were seeking, which, in my opinion does not meet the objectives of section 83 of the CPLA. It is a completely inconcruous [sic] decision…
[20] The letter concluded:
If, following public consultation, your decision remains unaltered, which at this stage I would find surprising, then I reluctantly acknowledge that it makes sense to start work now on the details of the special lease vegetation monitoring agreement.
[41] Mr Davidson argues that the hostile DOC response in May 2003 to the Soldiers Syndicate decisions, led to Mr Lysaght writing his Mt Ida syndicate decision DOC’s way. (Particulars elaborating the statement of claim are provided in the notice dated 1 August 2009.) I am satisfied that Mr Davidson has drawn my attention to material sufficient to lay the ground work for questions challenging whether or not Mr Lysaght’s affidavit is a full explanation of his conduct as decision
maker, and whether the reasons given in his decision are his. For I am not sure I can make reliable inferences from the record. It is in the interests of both the plaintiffs and the Crown that I hear from Mr Lysaght personally his explanations of the differences between his decisions on Soldiers and Mt Ida.
[42] The particulars on predetermination show that Mr Lysaght was active on the problem, and advising the plaintiffs that the review still had a long way to go in
2004. It is not clear to me whether he had any significant role after that date. It is appropriate that I hear Mr Lysaght personally on his actions and interactions with persons in respect of Mt Ida after his decision on 13 June. This goes both to the predetermination and the legitimate expectation issues.
[43] I record that I have not set out in this decision all the material that Mr Davidson considers to be part of the contemporaneous record which he wishes to put to Mr Lysaght.
[44] For these reasons I grant leave to cross-examine Mr Lysaght on the four topics in the application. Cross-examination does not have to be confined to cross- examination on the paragraphs. I am not going to attempt to define the bounds of this cross-examination, except to state the obvious, that it cannot entrench into the merits of the different options available under s 86(5) of the Act. However, it can extend to exploring similarities or not of the Mt Ida issues with the Soldiers Syndicate. This is because there is an evidential threshold on the documents suggesting that Mr Lysaght was treating, initially, both syndicates as presenting the same issues to be resolved in the same way. But the cross-examination is in the context of seeking a fuller exploration from Mr Lysaght as to how he could reason one way in respect of Soldiers land and another in respect of Mt Ida.
Mr Connell
[45] Mr Connell was at all material times the Otago Conservator of DOC. In his affidavit he records that on 10 June 2002 the Commissioner’s agent (presumably Mr Taylor of DTZ) wrote asking for comments on a draft proposal to return the
Mt Ida land to full Crown ownership and control and they replied supporting the proposal.
[46] In the next paragraph he shifts two years forward to 5 February 2004. Accordingly, he does not discuss at all whether he had any contact with Mr Lysaght during Mr Lysaght’s devising of the preliminary proposal for Soldiers and/or Mt Ida.
[47] Later in his affidavit in paragraph 11 he summarises the plaintiffs’ allegations and replies:
There was no direction of any kind by the Director-General in the review process.
[48] The schedule to the application does not identify these parts of his affidavit. Rather, it identifies the formation of DOC policy in support of returning the Mt Ida land to full Crown ownership back in 1988, (paragraph 2 in exhibit JC1), and the proposal for the creation of the Oteake conservation park.
[49] I do not need to cross-examination on these two topics. It is utterly plain from the record that DOC was behind the development of the Oteake park and wanted the Mt Ida Syndicate to be part of it. I infer that DOC never let go of that objective. Mr Lysaght records DOC wanted Mt Ida in the park.
[50] In his oral argument Mr Davidson wanted to cross-examine Mr Connell as to whether or not he was actively influencing Mr Lysaght or his associates at the time of the devising of the preliminary proposal for Mt Ida. That can be seen as fishing. The Crown, however, elected to file an affidavit by Mr Connell, and it is striking that he leaves out of his narrative the period of formation of the preliminary proposals. Again, I am not satisfied that Mr Connell’s affidavit is full and candid. I will allow cross-examination of what Mr Connell did between June 2002 down to June 2003.
Mr Whittaker
[51] Mr Whittaker is a DOC conservation officer, high country tenure review. As part of his responsibilities he took over review of the Mt Ida land in 2004. His
affidavit is written as a background piece. It is intended to be a detailed description of the Mt Ida property. It is full of expressions of opinion. It appears to be filed in respect to various affidavits filed by the applicants. I have considerable doubt as to its relevance to these proceedings.
[52] It appears to be written, ex post facto, also in support of the proposition that the Soldiers land and the Mt Ida land were significantly different properties, for the purposes of s 83. In that regard, it is of very doubtful relevance to a judicial review which is not on the merits. Paragraph 33, however, contains what appears to be an admission of fact:
We may have said that both syndicates should be dealt with in the same manner ... .
[53] I do not think that remark is full and candid. Such statements, if made, could well be very relevant to the review issues. I grant leave for Mr Whittaker to be cross-examined on this topic to elicit answers to questions designed to ascertain: when, by who, to whom, and the content of the statements.
[54] In paragraph 38 Mr Whittaker expresses the view that in internal discussions DOC creation of various parks was regarded as the natural result of tenure review and not the reason for it. This is part of an argument being run by various witnesses of the Crown that the decision of the Commissioner was not to facilitate the creation of the Oteake park. Paragraph 38 is at best an opinion and by a person who was not directly involved. I am unlikely to give it any weight, if I allow it to be read. I see no need for cross-examination of Mr Whittaker on this proposition.
Mr Usherwood
[55] Mr Usherwood chaired the Tenure Review Quality Assurance Board which had the Mt Ida review referred to it and was the delegate of the Commissioner who prepared and adopted the substantive proposal.
[56] In his affidavit he exhibits an extract from minutes of the Tenure Review
Board referring to Mt Ida. It contains a line:
Noted Mt Ida would form a key part of the Oteake Conservation Park. Noted this lease is receiving a lot of public attention.
Noted this property is at a preliminary proposal stage.
[57] In paragraph 11 of his affidavit he refers to his decision to adopt this substantive proposal and says:
The fact that we had become part of the park had no role in my decision.
[58] The step of making a preliminary proposal substantive follows public notification and consultation. It was perfectly legitimate for DOC and others to argue that the preliminary proposal should be confirmed in order for the land to become part of the park.
[59] Even if Mr Davidson were to make headway in cross-examination challenging Mr Usherwood’s statement in paragraph 11: “the fact that we had become part of the park had no role in my decision”, in my view that would not resolve the predetermination issue. Mr Usherwood in the same paragraph has already acknowledged:
I was aware throughout that once the land became a conservation area it was likely it would become part of the Oteake Park.
[60] I do not think that the minutes of the Tenure Review Board are inconsistent with paragraph 11 of the affidavit. I do not think it necessary to have cross- examination on this material.
[61] In paragraphs 12, 13 and 14 Mr Usherwood touches on the Soldiers Syndicate and makes a self-serving statement that it is his view that each review is different and should be considered on its merits. The outcome in one need not determine the outcome in another even if the properties are close by. This material is of no assistance to the Court and there is no need for cross-examination on it.
[62] Mr Usherwood does not feature in the particulars of the predetermination claim. As I read the record, he was at some distance from the process of receiving and analysing submissions following the public notification of the preliminary proposal and that his role was to a degree bureaucratic, at a sign off level on the
adoption of the preliminary proposal as the substantive proposal. (There was no change.)
[63] The application for leave to cross-examine Mr Usherwood is dismissed.
Mr Gullen
[64] He is the Commissioner of Lands. He considered the application for rehearing. His affidavit traverses his processing of the application for rehearing, which was his first involvement in the review. The steps he took on receiving the application was to contact Mr Mouat, solicitor for the plaintiffs, to find out the time he needed to consider the files. He made arrangements for him to see the files. At no stage did he review the files. His practice was to deal with the matter on the basis of material submitted to him by the applicant and any reports prepared by LINZ for the purpose of the rehearing.
[65] He says that in May (while awaiting submissions from Mr Mouat) he was aware the Minister of Lands and Information was concerned at the time being taken to deal with the rehearing. A report was sent to LINZ, written by another officer, to the Minister, on 16 May. He records receiving advice from Crown Law on the standing of the plaintiffs to apply for rehearing and the scope of the rehearing power.
[66] On 9 June he received Mr Mouat’s submission. He noted, as an important feature of Mr Mouat’s letter, that his argument arose from the two recommendations by DTZ and generally he was setting out a multitude of arguments for granting the rehearing which traversed the review process from start to finish.
[67] It would appear he did not follow his usual practice of obtaining a report prepared by LINZ for the purpose of rehearing (although he does not avert to this). The whole of his consideration appears to be set out in three paragraphs of his affidavit:
16.One important feature of Mr Mouat’s letter was his argument arising from the two recommendations on the preliminary proposal from DTZ. The first recommendation was to designate the land to be
restored to full Crown control as a conservation area. The second recommendation made shortly after was to designate the land for disposal by way of special lease. The officer in CPM who had considered the reports from DTZ had accepted the first recommendation and so the preliminary proposal which was subsequently devised was that the land be retained in full Crown ownership and control. This was confirmed in the substantive proposal. As the DTZ recommendations had no statutory basis, I concluded that it was open to LINZ to accept either recommendation and there was no fault in the process.
17.After considering Mr Mouat’s submission I came to the view that he was setting out a multitude of arguments for granting the rehearing which led into and traversed the Part 3 review process from start to finish. My conclusion was that the arguments did not cause me to rehear the case – in other words I was not able to establish a cogent argument that persuaded me to grant the rehearing.
18.My impression of the letter was that Mr Mouat wished to revisit the whole process and submit substantive legal submissions and scientific advice to revisit the considerations made in the process. I therefore decided not to hold a rehearing and that decision was communicated to Mr Mouat in my letter of 18 June, a copy of which is attached marked “DG-3”. Before sending the letter I also rang Mr Mouat to advise him that the application for a rehearing would be declined. Mr Mouat told me that my decision would be subject to a review but I was not clear whether he was talking about an appeal to the High Court under s 18 of the Land Act or judicial review proceedings.
[68] His reasons rejecting a rehearing included significantly:
The ability to seek a rehearing relates to the decision to adopt the substantive proposal, not to any other part of the review including the devising of the preliminary proposal.
Your letter claims that the decision to adopt the substantive proposal to retain the land in full Crown ownership and control was wrong in fact and law. I have analysed your letter to ascertain what the alleged errors are. I have concluded the matters you wish to raise have all been taken into account in devising the preliminary proposal.
Some reliance also appears to be placed on procedural matters given that you spend some time discussing the fact that two submissions were received from DTZ. The DTZ submissions constitute advice to the Commissioner and the fact that there were two submissions with alternative recommendations does not affect the process.
The substantive proposal did not involve any amendment or modification of the preliminary proposal. The matters that your client seeks to raise were taken into account in the preparation of the preliminary proposal and so the request for a rehearing raises nothing new. Nor does it properly relate to the decision to adopt the substantive
proposal but instead seeks to reopen the review. This is not the purpose of a rehearing.
I am satisfied that the matters you raise have been given sufficient consideration and so in the exercise of my discretion, I have decided not to rehear the decision.
(Emphasis added)
[69] It is self-evident from those reasons that the Director-General did not entertain considering the criticisms made of the process of devising the preliminary proposal. He did not engage in the merits of the proposal be it labelled preliminary or substantive. Whether or not there is any error of law in that decision making process does not require cross-examination. On the face of it the reasons are not a basis for predetermination. They are, however, the basis for an argument of error of law as to the scope of an application for rehearing. I return to this under “Particulars”.
[70] I turn to Mr Gullen’s place in the plaintiffs’ contention of legitimate expectation that they would be granted a rehearing. Any legitimate expectation that they obtained in that regard could not have come from Mr Gullen as they had no direct dealings with him. He has said twice in his affidavit that his first involvement with the review was only on the application for rehearing, paragraphs 24 and 25. Whether or not the plaintiffs have a case for legitimate expectation does not depend on Mr Gullen’s conduct, let alone state of mind. Accordingly, there is no basis for cross-examination of him on this topic. To do so would fall into the error identified by Cooke P in Petrocorp of seeking his opinions.
[71] The application to cross-examine Mr Gullen is dismissed.
Particulars on rehearing allegations
[72] Paragraph 28 pleads:
28.The Plaintiffs had a legitimate expectation that they would be granted a rehearing of the Defendant’s decision to adopt the proposal to restore the land to full Crown ownership and control.
[73] Paragraph 28 pleads for a wider expectation than paragraph 30. There is an issue of law as to the scope of a rehearing of the Commissioner’s decision to adopt the substantive proposal, because that adoption can only be adoption of the original preliminary proposal or a modified version of it. There is a question then as to whether or not Parliament intended that the preliminary proposal, and the process which led to that, be excluded from the scope of an application for rehearing. There is a question as to whether or not it would be a relevant consideration in a rehearing of the Commissioner’s decision to adopt the proposal, that there was or may have been a deficiency in the process that led to the preliminary proposal.
[74] I invite the plaintiffs to recast their contentions in respect of the rehearing decision by Mr Gullen. I think there are two aspects to this decision which should be the subject of argument. The first is whether or not the passage, that I have highlighted in bold from his reasoning, in paragraph [68] above, contains an error of law. The second, and it may not be a separate point, but rather a particular to be added to the first point, is whether or not the Commissioner should have taken account of the observation that Mr Lysaght placed at the end of his decision on 13
June 2003 that that decision was likely to invoke a rehearing application. I refer to particular 20.3(a).
[75] The point of this amended pleading is to separate out a ground of review based on the Wednesbury principle of a failure to take into account a relevant consideration.
[76] For these reasons I give leave to the plaintiffs to file either a further amended statement of claim or further particulars, by Friday, 25 June. The respondent is to file a statement of defence or response to the particulars within four working weeks of service of the amended statement of claim or particulars of the plaintiffs.
[77] The application has been successful in part. The Crown’s opposition has been successful in part. There will be no order for costs.
Solicitors:
Goodman Steven Tavendale & Reid, Christchurch, for Plaintiffs
Crown Law, Wellington, for Defendant
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