Mills v Far North District Council

[2018] NZHC 2451

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2017-488-79 [2018] NZHC 2451

UNDER

the Judicial Review Procedure Act 2016 (the

“Act”)

IN THE MATTER

of the Resource Management Act 1991 (the
“RMA”)

BETWEEN

GARY EDWARD MILLS First Applicant

PAUL WAYNE FIELDMAN Second Applicants

AND

FAR NORTH DISTRICT COUNCIL First Respondent

BODGAN VITALEVICH GAN and OLESYA NIKOLAEVNA GAN Second Respondents

Hearing:	On the papers
Counsel:	MJE Williams for applicants JS Baguley for first respondent CH Prendergast for second respondents
Judgment:	18 September 2018

JUDGMENT OF FITZGERALD J [As to application for recall of judgment]

Thisjudgment was delivered by me on 18 September 2018 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar…………………………….  Date………………….…………

Solicitors:           Richard Mark, Kerikeri

Law North Ltd, Kerikeri

Henderson Reeves Lawyers, Whangarei

Mills v Far North District Council [2018] NZHC 2451 [18 September 2018]

Introduction

[1]      In Mills v Far North District Council, the applicants sought judicial review of decisions by the Far North District Council (the Council) granting resource consent to the erection of two sheds on the land of the second respondents (the Gans), and that the resource consent proceed on a non-notified basis.1  The applicants were successful on two grounds of review, but I was not persuaded it was necessary to grant relief.2

The applicants have applied for a recall of my judgment, on the basis it omitted to deal with or consider  the broader public interest in declining to grant relief.  It is argued that the public interest dimension was a relevant consideration that was directly raised and central to the applicants’ case, such that recalling the decision to take it into account would be in the interests of justice.

[2]      The Council and the Gans oppose the recall application.   Though separate memoranda have been filed, they each submit that the relevant threshold for recall has not been established.  The Council says the Court is not required to list exhaustively all issues considered in the judgment and that the applicants’ concerns are properly the subject of an appeal.   The Gans submit that matters of particular relevance were explicitly mentioned and it was not necessary to mention others in order to demonstrate that the issues were taken into account.  They also seek an extension to the time period for filing costs memoranda in light of the recall application.

Approach to recall applications

[3]      No issue is taken by the parties as to the general approach to recall applications.

[4]      A judgment may be recalled any time before it is sealed.3     The leading statement on the approach is that of Wild CJ in Horowhenua County v Nash (No 2), where the Chief Justice said:4

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the

1      Mills v Far North District Council [2017] NZHC 2082.

2      At [202]–[207].

3      High Court Rules 2016, r 11.9.

4      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

(Emphasis added)

[5]      The applicants rely on the third category in this case — “where for some other very special reason justice requires that the judgment be recalled”.   The Court of Appeal has observed that the category “is intended to be a narrow one.”5   Examples falling within that category,6 and similar to the basis of the present application, include cases in which the court failed to determine an issue properly put to it;7 misapprehended counsel’s submissions;8 overlooked a matter affecting the orders in the case;9  or gave judgment without consideration of the interests of an affected person.10

[6]      There are, conversely, recognised situations in which recall is inappropriate. In Nottingham v Real Estate Agents Authority, the Court of Appeal stated:11

[9]       The third category is not defined with particularity in any judgments. However, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments that could have been raised at the earlier hearing but were not. It does not extend to asking the Court to reverse interlocutory decisions such as adjournment decisions on the grounds they were wrongly decided.

(Footnote omitted)

Discussion

[7]      The application for recall describes the public interest dimension to the issue of relief as “central to the applicants’ case”.  The application further states that this

5      Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [23].

6      See Andrew  Beck  and  others  McGechan  on  Procedure  (online  ed,  Thomson  Reuters)  at

[HR11.9.01(5)].

7      Brake v Boote (1991) 4 PRNZ 86 (HC).

8      Cynotech Securities Ltd v People Ltd (No 2) HC Auckland CIV-2008-404-1559, 4 March 2009.

9      Matua Finance Ltd v Bank of New Zealand HC Auckland CP490/04, 4 August 1995.

10     McDonald v Simmonds (1994) 8 PRNZ 12 (HC).

11     Nottingham v Real Estate Agents Authority [2017] NZCA 145.

argument was raised, in the context of relief, in the applicants’ submissions in reply. The relevant part of those written submissions may be reproduced in full:

Relief

36.      A further purpose of the affidavit material produced by the applicants is to make out “substantial prejudice”, both to the community resident at Waimate North, and the intrinsic historical character, landscape and amenity values at stake, if the Council’s decisions are allowed to stand.

37.      There was no disqualifying conduct including by way of ‘undue’ delay,  and  the  authorities  referred to  by  counsel for  the  second respondent in this regard are again distinguishable on their facts. The reality is the shed framework was complete by the time the applicants became aware of what had been approved. That it took another month for the Council to provide the applicants with the information they had requested about the application, and to meet with them to discuss their concerns, was due to no fault on their part.

38.      The Gans may not be “wealthy people”.  They did nevertheless find sufficient resources to  spend  over  $520,000 on  two  sheds,  with substantial concrete paved and metalled areas, purportedly for the storage of personal belongings.

(Footnotes omitted, emphasis added).

[8]      Mr Williams, counsel for the applicants, made similar points in reply in his oral submissions at the hearing.

[9]      I do not consider the concept of broader public interest was “central” to the applicant’s argument on relief as is suggested.   The focus of the applicants’ submissions on relief was on the issue of alleged delay in commencing the proceedings. The aspects of public interest were those raised in [36], and the thrust of this section of the submissions was directed at prejudice to the Gans.   I therefore consider the application for recall attempts, to some degree at least, to recast this earlier argument in stronger and more direct terms.

[10]     Notwithstanding that issue, however, I consider the test for recall is not made out in any event, because it cannot be said that the argument or issue was overlooked to such a degree that a “very special reason justice requires that the judgment be recalled”.  As a preliminary point, the judgment noted that there was no prejudice to the applicants (who are community residents at Waimate North) themselves.  That issue was addressed given the applicants’ reliance on Air Nelson Ltd v Minister of

Transport, in which it was stated that if a ground for judicial review is made out, it will only be in exceptional circumstances where relief does not follow.12  As I observed in my judgment, subsequent Court of Appeal judgments have stated that a more nuanced approach is required.13

[11]     In considering the issue of relief, I noted that I had carefully considered the competing submissions.  The specific submissions in relation to broader prejudice were explicitly noted in the judgment:

[198]    Finally,  Mr Williams  notes that  there is  evidence of  widespread concern in the community about the sheds and by contrast, there are no third parties that would be prejudiced by granting relief.

[12]     The judgment also noted that the applicants were not prejudiced by the sheds, given their properties do not in fact adjoin the Gans’ property.14   It further observed that  Mr  Fieldman’s  suggestions responding  to “significant prejudice” (being the “affidavit material” referred to at [36] of counsel’s submissions, reproduced above) would result in significant additional costs to the Gans.15   And the judgment made specific reference to the impact of the sheds on the Heritage Precinct more generally, when noting that “Heritage NZ did not express concern at the time in relation to a shed of the nature and scale” of that in issue being erected in the Heritage Precinct.16   The judgment did not, therefore, confine the question of prejudice to “private” prejudice as suggested in submissions in support of the application for recall.

[13]     It follows that the relevant arguments, facts and issues were considered by me and addressed by the aspects of the judgment with which issue is taken.  It would appear that the applicants’ key grievance is that insufficient weight was given to broader community prejudice and prejudice to the Heritage Precinct itself, versus prejudice to the Gans. The appropriate way in which to deal with those concerns is by appeal.

12     Air Nelson Ltd v Ministry of Transport [2008] NZCA 26.

13     Mills v Far North District Council [2017] NZHC 2082 at [199].

14 At [203].

15 At [204].

16 At [205].

Conclusion and result

[14]     The application for recall is accordingly dismissed.

[15]     As both respondents have responded to the application, it is appropriate to extend the filing period for costs memoranda.  Any party seeking costs (including in relation to the substantive hearing and the recall application) may file a memorandum, no more than seven pages in length, within 10 working days of the date of this judgment.  Memoranda in response, also no longer than seven pages, may be filed within a further five working days.

Fitzgerald J