Norman v Tupuna Maunga O Tamaki Makaurau Authority
[2021] NZHC 201
•18 February 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2682
[2021] NZHC 201
UNDER the Judicial Review Procedure Act 2016 BETWEEN
AVERIL ROSEMARY NORMAN AND WARWICK BRUCE NORMAN
Applicants
AND
TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY
First Respondent
AUCKLAND COUNCIL
Second Respondent
Hearing: 10 February 2020 Appearances:
R J Hollyman QC and J K Grimmer for Applicants S M Bisley and P T Beverley for First Respondent PMS McNamara for Second Respondent
Judgment:
18 February 2021
JUDGMENT OF GORDON J
This judgment was delivered by me
on 18 February 2021 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Duncan King Law, Auckland
Buddle Findlay, Auckland Simpson Grierson, Auckland
Counsel: R J Hollyman QC, Auckland
NORMAN v TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY [2021] NZHC 201 [18 February 2021]
[1] This is an application by Averil and Warwick Norman (the Normans) for an interim injunction pending the determination of their appeal to the Court of Appeal against a judgment of Gwyn J (the judgment).1
[2] The judgment concerned a judicial review application by the Normans challenging the decision of the first respondent, Tūpuna Maunga o Tāmaki Makaurau Authority (Maunga Authority), to remove 345 exotic trees from Ōwairaka or Mt Albert (Ōwairaka). The Normans also challenged actions of the second respondent, Auckland Council (the Council), in relation to the Maunga Authority’s decision.
Background
[3] The factual background to the proceeding is summarised by Gwyn J in the introductory section of the judgment:
[1] Ōwairaka, or Mt Albert (Ōwairaka), is one of fourteen Tūpuna Maunga, or ancestral mountains, of Tāmaki Makaurau, or Auckland (Tāmaki Makaurau), which were transferred from Crown ownership to the 13 iwi and hapū of Ngā Mana Whenua o Tāmaki Makaurau (Nga Mana Whenua) under the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (Collective Redress Act).
[2] Under the Collective Redress Act, the fee simple estate in the 14 Tūpuna Maunga, including Ōwairaka, is vested in Ngā Mana Whenua’s collective legal entity, the Tūpuna Taonga o Tāmaki Makaurau Trust (Tūpuna Taonga Trust) for the common benefit of the iwi and hapū of Ngā Mana Whenua and the other people of Auckland.
[3] The Tūpuna Maunga o Tāmaki Makaurau Authority (Maunga Authority) is the governance and administering body of Ōwairaka, as it is for most of the transferred Tūpuna Maunga, for the purposes of the Reserves Act 1977 (Reserves Act). This statutory co-governance authority has equal representation from Ngā Mana Whenua and Auckland Council, with one (non- voting) Crown representative.
[4] The Tūpuna Maunga are classified as reserves under the Reserves Act and that classification was maintained by the Collective Redress Act. Ōwairaka is a recreation reserve, located in the suburb of Mt Albert, Tāmaki Makaurau. It comprises approximately 9.5 hectares.
[5] In the period between 9 August 2018 and 11 October 2018, the Maunga Authority made a decision to remove 345 exotic trees from Ōwairaka and to replant 13,000 native plants.
1 Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2020] NZHC 3425.
[6] It is that decision, or part of it, that Mr and Ms Norman seek to review in this Court. The applicants are Averil Norman and Warwick Norman. Ms Norman’s evidence is that she is a frequent visitor to Ōwairaka. In her evidence she describes the beauty of the Maunga and the close connection she feels to it. There is other evidence before the Court that indicates that Ōwairaka is enjoyed and well-used by local residents and visitors from further afield. Various personal and historical connections are described in the evidence.
[7] The applicants also challenge the actions of Auckland Council, to the extent the Council is to implement the challenged decision and, separately, the Council’s decision that it was not necessary to publicly notify or give limited notification of the Maunga Authority/Council’s application to carry out the tree felling and planting work under ss 95A to 95E of the Resource Management Act 1991 (RMA).
[4] The Normans filed their judicial review application in December 2019 immediately upon learning of the imminent implementation by the Maunga Authority of its decision to fell the 345 non-native trees on Ōwairaka. At that time the Normans also filed an application for interim relief. The parties cooperated to obtain an urgent fixture and the application was set down to be heard in late March 2020. The Maunga Authority agreed to defer the proposed tree removal until the substantive review was determined, on the basis that the application would be heard on 20 March 2020.
[5] In late January 2020, the Normans sought leave to amend their pleading to also challenge the Council’s decision to grant resource consent for the decision on a non-notified basis. The application for leave was opposed by the Maunga Authority on the basis that the amended pleading would require an amended hearing date and so would cause further delay. Leave was granted and the new hearing date was 8 and 9 June 2020.
[6] On 22 December 2020, the Court issued the judgment dismissing all the grounds of review. The application for interim relief pending appeal was filed the following day.
[7] Also, on 23 December 2020, the Normans and the Maunga Authority filed a joint memorandum recording their agreement on an interim position pending the hearing of the application for interim relief. The Maunga Authority committed to not felling any trees on Ōwairaka before 4 pm on 29 January 2021 on the condition that
the Normans advised by that date whether they intended to appeal the judgment. That commitment was subject to any urgent work required to address health and safety concerns and also without prejudice to the Maunga Authority’s position, including that an injunction would be inappropriate in all the circumstances.
[8] On 20 January 2020, the Normans confirmed to both respondents that they would appeal the judgment to the Court of Appeal. The following day the Maunga Authority advised the Normans that it did not agree to extend its commitment not to fell the trees until the determination of an appeal. But it agreed to extend its commitment until the determination of the application for an injunction, as long as the application was heard before 26 February 2021.
[9]The Council abides the decision of the Court.
The case for each party
[10]In summary, the Normans say:
(a)that the injunction is necessary to preserve the status quo and their position, and that, conversely, if the Maunga Authority’s decision were implemented, the damage to the 345 trees and the reserve would be irreversible and would render their appeal nugatory;
(b)there is a strong public interest in the legality of the decision and the appeal will affect not just Ōwairaka but other maunga under the Maunga Authority’s management; and
(c)the judicial review application and now the appeal raise difficult and important legal issues.
[11] The Maunga Authority’s opposition is based principally on delay. It submits that the effect of the delay is serious, in summary, because:
(a)delay undermines the intention and effect of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (Collective Redress
Act) and the hard-fought Treaty settlement arrangements that underpin that Act and deferring reforestation prevents cultural and spiritual issues such as exercising kaitiakitanga and mana whenua over the Maunga from being resolved;
(b)exotic trees scheduled for removal are causing ongoing damage to archaeological sites;
(c)the exotic trees pose a health and safety risk; and
(d)pest species on Ōwairaka will continue to proliferate.
Relevant legal principles
[12] The application is made under r 12(3)(b) of the Court of Appeal (Civil) Rules 2005 or alternatively the inherent jurisdiction of the Court. Under r 12(3)(b), the High Court has the power to grant interim relief as it sees fit:
(3)Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on an interlocutory application,—
(a)order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or
(b)grant any interim relief.
[13] Mr Hollyman QC for the Normans notes that as the High Court judgment is non-executory, the Normans seek an interim injunction rather than a stay. In Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust,2 the Court of Appeal recognised that r 12(3) gives jurisdiction to grant not only a stay of execution but also interim relief:3
… There is explicit jurisdiction for the Court of Appeal to make an affirmative order in the nature of an interim injunction holding or protecting a position pending an appeal.
2 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZCA 377, (2017) 23 PRNZ 598.
3 At [9].
[14] Mr Hollyman emphasises the approach of the Court of Appeal in New Zealand Insulators Ltd v ABB Ltd where the Court said: 4
[19] The proper starting point for the exercise was enunciated by Cotton LJ in Polini v Gray (1879) 12 Ch D 438 at 446 (CA) when he said:
… when there is an appeal about to be prosecuted the litigation is to be considered as not at an end, and that being so, if there is a reasonable ground of appeal, and if not making the order to stay the execution of the decree or the distribution of the fund would make the appeal nugatory, that is to say, would deprive the Appellant, if successful, of the results of the appeal, then it is the duty of the Court to interfere and suspend the right of a party who, so far as the litigation has gone, has established his rights.
[20] There has been no deviation from that fundamental principle in subsequent cases over the years.
[15] However, Mr Hollyman also accepts that the fact that an appeal may be rendered nugatory is not determinative.5
[16] Mr Bisley for the Maunga Authority refers the Court to the statement by the Court of Appeal in Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust,6 where the Court said:
[10] … As a starting point, the successful party is entitled to the fruits of its judgment. An appellant who seeks to stop this must make an application and show why the usual consequences of a judgment should not follow. …
[17] I do not consider that there is any real difference in approach in the two cases. As was recognised in New Zealand Insulators Ltd, the ultimate object must be to ensure that the appellate court is able to do justice between the parties whatever the outcome of the appeal may be. Or, as it was put in Brook Valley Community Group Inc:
[10] … The Court will need to balance the competing rights of the party who has obtained judgment against the need to preserve the appellant’s position in the event of the appeal succeeding.
(citation omitted)
4 NZ Insulators Ltd v ABB Ltd (2006) 18 PRNZ 459 (CA).
5 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [20], citing Cousins v Heslop
[2007] NZCA 377, (2007) 18 PRNZ 677.
6 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust, above n 2.
[18] The same approach is apparent in Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd where Hammond J stated:7
[8] … It is routinely said that, at the end of the day, the test for a stay of execution is one of the justice of the given case. In the broadest sense, that must be so. But a formula which, with respect, more accurately indicates the essential nature of the balancing approach which must be adopted, is set out in the decision of Gault J in Duncan v Osborne Buildings Ltd (1992) 6 PRNZ
85. His Honour said (at p 87):
“In applications of this kind it is necessary carefully to weigh all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful. Often it is possible to secure an intermediate position by conditions or undertakings and each case must be determined on its own circumstances.”
[19] Factors which Courts have conventionally addressed to find the appropriate balance in any given case were listed by Hammond J in Dymocks Franchise Systems as follows:8
(a)Whether the appeal may be rendered nugatory by the lack of a stay;
(b)The bona fides of the appellant as to the prosecution of the appeal;
(c)Whether the successful party will be injuriously affected by the stay;
(d)The effect on third parties;
(e)The novelty and importance of questions involved;
(f)The public interest in the proceeding; and
(g)The overall balance of convenience.
[20] Although the above list does not include the apparent strength of the appeal, that has been treated as an additional factor.9
[21]I turn now to a consideration of relevant factors.
7 Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC).
8 At [9](1)-(7).
9 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].
Will the appeal be rendered nugatory?
[22] This is the key argument for the Normans. Mr Hollyman submits that the relief sought is necessary because if the Maunga Authority fells the trees on Ōwairaka before the appeal is determined, it will render the appeal nugatory. He submits that in practical terms this would be decisive of the whole case. He says that is obviously the reason for the primacy of this point.
[23] Mr Bisley likens the position of the Normans to the position of the Community Group in the Brook Valley case where the refusal of the High Court to grant a stay was upheld on appeal. Mr Bisley submits that case is a more appropriate comparison to the position here, rather than cases involving competing trade interests. I do not consider that distinction in itself is a useful one. In the Brook Valley case there were a number of factors which weighed against a stay.
[24] On the issue of whether the refusal of a stay would render the appeal nugatory, the Court of Appeal accepted that if no interim relief were granted, the aerial drop of the poison brodifacoum (which is designed to exterminate mammalian pests) was likely to proceed within a short timeframe. The aerial drop that the Community Group sought to stop would have taken place by the time the substantive appeal was determined.10 But the Court of Appeal went on to say that this did not mean the proceeding would be rendered nugatory if no relief were given. The proceeding involved a general challenge to the validity of the regulations governing the aerial drop. This was to be the first of a number of proposed aerial drops and success on appeal would mean that the respondent would not be able to proceed with further action using poisons without obtaining some new form of legal authorisation.
[25] These circumstances can be contrasted with the situation in this case. If the injunction is not granted, the 345 identified trees will be cut down. The felling is not part of an ongoing and repeated process as was the case in Brook Valley.
[26] Mr Bisley also submits that the Normans do not have a direct interest in the preservation of the exotic trees. Their interest in the decision is little, if at all, greater
10 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust, above n 2 at [15].
than any other member of the public of Auckland. He says that this cannot be compared to the deep spiritual, ancestral, cultural, customary and historical significance of Ōwairaka to Ngā Mana Whenua o Tāmaki Makaurau. He also submits that many native trees will remain on the part of Ōwairaka administered by the Maunga Authority (approximately 9.5 hectares) and many other exotic trees will remain on the area of the Maunga owned by Watercare (approximately one hectare). Finally, he submits the Normans will still be able to advance their argument regarding decision-making in relation to other maunga of Auckland administered by the Maunga Authority.
[27] In considering whether the appeal might be rendered nugatory, I put to one side any submissions as to the relative weight of ancestral connections to the Maunga as opposed to the Normans connections to the trees. I also note that the standing of the Normans to bring the review has not been in issue and Ōwairaka is held for the common benefit of Ngā Mana Whenua o Tāmaki Makaurau and the other people of Auckland.11 As to the point that many native trees will remain (and there will be replacement planting of native species) and that other exotic trees will remain on the Watercare land, I come back to the point that it is the position of these specific 345 trees that is the concern. The fact that there are exotic trees on another part of Ōwairaka and that there will be replanting of native species, does not address the Normans’ key concern on appeal.
[28] Finally, although the Normans will still be able to make submissions that have application to decision-making in relation to other maunga of Auckland, and while they say it is an important point, for them it is a secondary issue. The Court was told the Normans would be unlikely to proceed with their appeal if an injunction was not granted.
Bona fides as to the prosecution of the appeal
[29] I accept the Normans bona fides in filing the appeal and that they intend to prosecute it diligently. The notice of appeal was filed well before the end of the 20 working day appeal deadline. Mr Norman says in his affidavit of 4 February 2021
11 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 41(2).
that he understands the case on appeal bundle is well advanced and they hope to have that filed “in the next week or so” along with payment of security for costs. They will then make an application for a fixture.
[30] At the hearing the Court was advised that security for costs had been paid and that the aim was to file the case on appeal by the end of the week. Mr Hollyman has since filed an updating memorandum advising that the case on appeal was filed on 11 February 2021 and on 12 February 2021 the Normans applied for a fixture and paid the scheduling fee. They have requested that a fixture be allocated as a matter of priority. I note that Mr Bisley did not take issue with the Normans’ bona fides as regards their appeal.
Whether the successful party will be injuriously affected by an injunction
[31] Mr Bisley says that the Maunga Authority has been ready to implement the decision since October 2019. He submits that further delay prevents the iwi and hapū of the Tāmaki Collective from exercising mana whenua and kaitiakitanga over Ōwairaka. The ability for the Maunga Authority to continue with its work in accordance with tikanga is critical. Tikanga is part of the values of New Zealand common law.12 In the context of the Conservation Act 198713 the Courts must construe legislation in conformity with Treaty obligations.14 Delay infringes the ability to act in accordance with the tikanga of the iwi and hapū of the Tāmaki Collective.
[32] In response, Mr Hollyman submits that the appeal is not a challenge to the Treaty settlement process, but rather involves a challenge to the decision of a public, co-governance entity established as a result of a Treaty settlement. He submits the Maunga Authority represents an attempted rapprochement between the interests of the 13 iwi involved in the settlement and the other people of Auckland. Its activities in relation to Ōwairaka are constrained by both the Collective Redress Act and the Reserves Act 1977 and it is in that legal and factual matrix that the appeal is firmly based.
12 Takamore v Clarke [2012] NZSC 116 [2013] 2 NZLR 733 at [94].
13 Conservation Act 1987, sch 1. The Reserves Act is subject to the Conservation Act.
14 Section 4.
[33] I acknowledge that the delay will impact on the Maunga Authority’s ability to continue to work in accordance with tikanga. However, while tikanga is recognised in our law, in an application such as this, the Court is concerned to do justice between the parties. I will address the balancing of the respective interests later in this judgment.
[34] I will deal with health and safety, the matter of pest species and damage to archaeological sites under this factor. As to health and safety, there have been four incidents relating to damaged trees since 2020. There are also other trees said to be in poor condition. However as against that there is no evidence as to the imminence of any health and safety risk or harm to people. There is similarly no evidence of any sudden and major decline in the quality of the trees over the last year since the proceedings were issued. I consider this issue could satisfactorily be addressed by a condition that the Maunga Authority be able to undertake urgent work required to address health and safety concerns. Mr Hollyman says the Normans would accept such a condition, noting that the Normans have never opposed removing trees that pose a substantial health and safety risk to users of Ōwairaka.
[35] There is debate in the affidavits filed in the substantive proceeding as to what constitutes a pest species. However, the Normans filed an affidavit from an arboricultural expert which in short was to the effect that none of the trees is in the “pest” category that requires immediate eradication.
[36] As for damage to archaeological sites, Mr Hollyman refers to the evidence of the archaeologist consulted by the Maunga Authority whose evidence was that not all of the trees raise archaeological concerns and, secondly, that the archaeology rationale would also apply to some of the native trees which are not being removed. Mr Bisley refers to an affidavit filed in the substantive proceeding and submits there is potential ongoing damage from tree roots and, if a tree should fall over, as the roots are uplifted from the ground, that could result in the uprooting of or at least damage to an archaeological site. Despite Mr Hollyman’s submissions, I accept there is some substance in the Maunga Authority’s position on this issue.
The effect on third parties/public interest in the proceeding
[37] I will deal with these two factors together, noting that there is a distinction between what the public is interested in and what is in the public interest.
[38] Mr Hollyman refers to an affidavit of Anna Radford, the leader and spokesperson of the Honour the Maunga community campaign. She says that more than 10,000 people have signed a petition in opposition to the felling. For 422 days the Honour the Maunga group (the Normans are not members) has maintained a community presence on Ōwairaka protesting against the felling of the trees. That presence continues. Ms Radford says that the support for the Honour the Maunga group is diverse. It has two patrons, Sir Harold Marshall, KNZM (a local resident) and Mr Pouroto Ngaropō, MNZEM (of Ngāti Awa ki Te Awa o Te Atua). Mr Ngaropō has deep ancestral, spiritual and cultural connections to Ōwairaka.
[39] However, on the other hand, the Ecological Restoration Project is supported by public interest groups such as Forest and Bird, the Independent Māori Statutory Board, the Tree Council and Generation Zero.
[40] As far as heritage implications, Mr Hollyman notes there is also European heritage which needs to be considered under this factor. A number of the non-native trees proposed to be removed are of significance to the “other people of Auckland”.15 These include the olive grove planted with seeds sent home from Palestine during World War II, the Macrocarpa planted by one of Mt Albert’s early settlers which is said to be probably the oldest tree on the Maunga and cherry trees planted in memory of a soldier who died in the Great War.
[41]In the end there are arguments going both ways. I see this factor as neutral.
The novelty and importance of questions involved
[42] I accept that the questions of law are not restricted to the Maunga Authority’s conduct in relation to Ōwairaka but have relevance to other maunga administered by
15 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 41(2).
the Maunga Authority across Auckland. This is apparent from two points in the notice of appeal:
(a)Whether the Maunga Authority discharged its obligation to consult on its decision to fell all the trees; and
(b)Whether the decision to fell the trees was lawful in terms of the Reserves Act. This raises the proper interpretation of the Collective Redress Act and its interaction with the Reserves Act.
[43]These are important questions.
Apparent strength of the appeal
[44] The appeal raises important issues of interpretation relating to the interaction between the Collective Redress Act and the Reserves Act. Mr Hollyman submits that the appeal is clearly and genuinely arguable.
[45] Mr Bisley does not submit the appeal has no prospect of success but says the prospect of the appeal succeeding is low.
[46] I did not hear any detailed argument on the substantive issues. I am therefore unable to express any view on the strengths of the arguments on appeal. I do note that the grounds of appeal are a repetition of arguments made in the High Court; and the High Court judgment is both careful and comprehensive. But as I have said, I am unable to express any view on the strengths of the arguments. I do however accept that it cannot be said that appeal has no prospects of success.
Balance of convenience
[47] I return to the Brook Valley case. There were important factors regarding the position of the respondent which the Court took into account in balancing the respective interests of the parties. The Court found that:
(a)if the respondent was unable to make the aerial drop in winter when conditions were suited to an effective drop, there would be direct costs of $127,000 plus GST to the respondent;
(b)there would be the delay in the development of the sanctuary and loss of the anticipated revenue stream which would otherwise offset annual operational costs of $590,000;
(c)interest in and financial support for the project might wane if the drop were delayed and it was possible that this loss of support would make the delayed drop financially unfeasible;
(d)all the above factors may have had the consequence of improving the Community Group’s position rather than merely preserving it; and
(e)it seemed that conditions at the time were suited to a poison drop. It was not certain that in the following winter, conditions would be the same.
[48]The balance of convenience clearly favoured the respondent in that case.
[49] In this case, on the one hand there is the public interest in Treaty redress being respected and enabled (the Maunga is a taonga of great importance) and the risk of damage to archaeological sites. There is also the weight of ancestral connections of the Tāmaki Collective to the Maunga, which Mr Bisley raised in the context of his submissions on whether the appeal would be rendered nugatory by the refusal of an injunction. I put it to one side in that context, but it is a relevant consideration at this point. On the other hand, the Normans’ right to appeal would be rendered nugatory if the 345 trees were cut down now before their appeal is heard.
[50] In a memorandum filed after the hearing, Mr Bisley advises that the Court of Appeal indicated on 16 February 2021 that the next available hearing dates for a one- and-a-half-day hearing in the Permanent Court are in October 2021. He notes that counsel agreed a two-day hearing would be required. Mr Bisley further says that
counsel are investigating whether an earlier fixture date for a two-day hearing is available. For present purposes, I will proceed on the basis that there will be a hearing in October 2021 (rather than at an earlier date). The length of time until the hearing is unfortunate, but in my view, a balancing of the interests favours the granting of an interim injunction. I consider the fact the appeal will otherwise be rendered nugatory is decisive.
Result
[51] The Normans’ application is granted. The respondents are restrained from implementing the decision to fell the identified 345 non-native trees on the recreation reserve at Ōwairaka until the final determination of the Normans’ appeal to the Court of Appeal against the judgment subject to:
(a)any urgent work that the Maunga Authority, in good faith, considers may be required to address health and safety concerns, and in that case the Maunga Authority will advise the Normans (by their counsel/solicitors) of the need to undertake those works as soon as is practicable in the circumstances; and
(b)the Normans prosecuting their appeal expeditiously.
Costs
[52] Mr Hollyman made an application for leave to amend the application for an interim injunction by adding that the Normans seek costs. There was no objection to that application to amend and I granted leave at the hearing. However, I did not hear submissions on costs. Costs are accordingly reserved.
[53] In the normal course, the Normans being the successful party, they would be entitled to costs. If the parties are able to agree costs, a joint memorandum should be filed within 15 working days of the date of this judgment.
[54] If costs cannot be agreed, the Normans may file and serve an application for costs within five working days of the date for the joint memorandum. The Maunga
Authority must then file and serve its memorandum within a further five working days. In the event that any costs issue arises in relation to the Council, it may file and serve a memorandum on the same date as I have directed in relation to the Maunga Authority.
[55] Costs memoranda should not exceed four pages, excluding any attachments. I will determine costs on the papers.
Gordon J
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