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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2451
Decision Date: 18 September 2018

CaseChat Overview and Summary

In Mills v Far North District Council, the applicants sought judicial review of decisions by the Far North District Council granting resource consent to the erection of two sheds on the land of the respondents. The applicants were successful on two grounds of review, but Fitzgerald J found that relief was not necessary. The applicants have applied for a recall of the judgment on the basis it omitted to deal with or consider the broader public interest in declining to grant relief. The Council and the Gans oppose the recall application, submitting that the relevant threshold for recall has not been established. The applicants relied on the third category of cases in which a judgment not perfected may be recalled, where for some other very special reason justice requires that the judgment be recalled. The applicants argued that the public interest dimension to the issue of relief was central to their case, however Fitzgerald J found that the relevant arguments, facts and issues were considered and addressed in the judgment. The court found that the appropriate way in which to deal with the applicants’ concerns was by appeal. The application for recall was accordingly dismissed.
Fitzgerald J noted that as both respondents had responded to the application, it was 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.

Orders