North Eastern Investments Limited v Auckland Council

[2017] NZHC 2960

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2325 [2017] NZHC 2960

BETWEEN

NORTH EASTERN INVESTMENTS

LIMITED AND HERITAGE LAND LIMITED

Applicants

AND

AUCKLAND COUNCIL First Respondent

INDEPENDENT HEARING PANEL Second Respondent

HOUSING NEW ZEALAND CORPORATION

Third Respondent

Hearing:	On the papers
Counsel:	J W Maassen and M Riordan for Applicants A J Ash for First and Second Respondents C Ksirman and A Devine for Third Respondent
Judgment:	30 November 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 30 November 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:

Cooper Rapley Lawyers, Palmerston North
Simpson Grierson, Auckland

Ellis Gould, Auckland

NORTH EASTERN INVESTMENTS LIMITED AND HERITAGE LAND LIMITED v AUCKLAND COUNCIL [2017] NZHC 2960 [30 November 2017]

[1]      I have before me an application by the applicants for leave to cross-examine a witness for Housing New Zealand Corporation (HNZ), Mr Brendon Liggett.  As this is an application for judicial review, leave to cross-examine is required.

[2]      For reasons I will shortly explain, the application is declined.

Background

The claim

[3]      The applicants own land at 56 Fairview Avenue and 129 Oteha Valley Road, Albany. They were submitters on the Proposed Auckland Unitary Plan (PAUP), seeking  rezoning  of  their  land  to  Terraced  Housing  and  Apartment  Buildings (THAB).   The Auckland Unitary Plan Independent Hearings Panel (IHP) was assigned the task of making recommendations on the PAUP, including as it related to the applicants’ land. Unhelpfully, the pleadings do not clearly specify those parts of the recommendations that are unacceptable to the applicants, but I assume the recommendations on Topic 081 did not accord with the relief sought by them.

[4]      The applicants challenge the IHP decision on several grounds. For present purposes, one claim is in focus.   The applicants claim a decision by the IHP to summons evidence by Ms Terry Conner, on behalf of Auckland Council (Council), but to not require her for cross-examination was procedurally and substantively unfair to them. They submit the summons was invalid because:

(a)      it   did   not   comply  with   empowering   provisions   of   the   Local Government (Auckland Transitional Provisions) Act 2010 (LGATPA) and other regulations;

(b)Ms Conner’s evidence should have only been used to support HNZ’s case, but the effect of the summons was to excuse Ms Conner from attending  any  hearing  session  without  needing  to  confirm  her evidence; and

(c)      the IHP did not follow a fair and appropriate procedure as required by the LGATPA, specifically:

(i)failing to provide all affected parties with notice of the fact it was  going  to  use  Ms  Conner’s  statement  for  that  wider purpose and for all hearing sessions; and

(ii)depriving parties who had previously been granted leave to cross-examine the opportunity to do so.

[5]      They also claim it was contrary to natural justice for the IHP to rely on any statement prepared by Ms Conner when dealing with their submissions because:

(a)      the opportunity to test Ms Conner at a hearing was not possible, but considered   by   Judge   Kirkpatrick   as   an   appropriate   and   fair requirement for the applicants to be given; and

(b)the IHP did not inform the applicants that Ms Conner was part of the case they had to address, despite her not being a witness appearing before the IHP at the relevant hearing session in the usual way, and despite numerous attempts by the applicants to obtain clarity on what case they had to address before the hearing.

Mr Liggett’s evidence

[6]      Mr  Liggett  is  the  Development  Planning  Manager  at  HNZ.  He  was responsible for HNZ’s day to day involvement in the Auckland Unitary Plan process. He has prepared an affidavit to provide detailed background as to the circumstances which led to HNZ seeking to summons the Council’s witnesses and their evidence on Topic 081. He refers to, among other things, evidence of Ms Conner and how that evidence came to be produced at the IHP hearings. It is unnecessary to traverse the detail. The key observations for present purposes are:

(a)       Ms Conner’s evidence formed part of the Council’s evidence on Topic

081.

(b)On 24 February 2016, the Council resolved to withdraw its evidence in respect of matters it considered to be outside the scope of submissions, and notified the IHP accordingly on 29 February 2016, advising it was still determining the extent to which witnesses would attend the Topic 081 hearing. It noted its preferred option was for witnesses to be called only in relation to certain zoning aspects and for no questions to be asked about matters no longer forming part of its case.

(c)      On 1 March 2016, the IHP notified submitters on Topic 081, and that its response would be posted on its site. Its response was that it would proceed in accordance with existing procedures. A copy of the response is attached as an exhibit.

(d)The  same  day  HNZ  sought  leave  to  cross-examine  all  Council witnesses. The Hearing Panel Manager advised that any party would be free to adopt the Council evidence and confirmed this position directly to HNZ. A copy of the advice is attached as an exhibit.

(e)      The  hearings  on  Topic  081  then  commenced,  with  the  Council presenting its case on 8 March 2016. An issue arose as to whether the Council’s witnesses could be cross-examined. A copy of a memorandum  dealing  with  this  issue  is  attached  as  an  exhibit. A transcript of some of the exchanges between members of the IHP and submitters following the memorandum is also attached.

(f)      A number of media articles about the issue were published, copies of which are attached to the affidavit.

(g)There  were  also  further  exchanges  between  HNZ  and  the  IHP regarding   its   request   for   cross-examination;   relevant   exhibits recording the exchanges are attached.

(h)HNZ commenced its case on 10 March 2017 and the issue of cross- examination was discussed.  At this time the issue of a summons was raised, with HNZ seeking to summons the Council’s witnesses immediately after finishing presenting the first part of its case. A full transcript of the hearing day is attached. This was reported on by the media the same day.

(i)       On 14 March 2017, a draft summons was sent to the IHP and the

Council. Their responses are attached as exhibits.

(j)       On 16 March 2017, revised summonses were handed to the IHP. They

were signed, and copies were posted to the IHP’s website.

The matters and grounds for cross-examination

[7]      The applicants seek  leave to cross-examine Mr  Liggett on the following matters:

(a)       the scope of HNZ’s submission and relief sought in Topic 81;

(b)the hearing sessions allocation by the IHP in relation to HNZ’s submission in March 2016 and the division of those sessions relative to the applicants’ allocated session in April 2016;

(c)      the extent to which the evidence of HNZ in support of its submission addressed the site-specific considerations relevant to the applicants’ site;

(d)      the  fact  HNZ  did  not  submit  in  opposition  to  the  applicants’

submissions or oppose the relief sought by the applicants; and

(e)      the reasons HNZ agreed to and presented summonses to the IHP that would not require the attendance of the witness, including associated communications with the Council and the IHP on the form of the summonses.

[8]      Mr Maassen for the applicants submits all of this is relevant to understanding the context in which the summons of Ms Conner was issued and its intended scope and purpose.  Both parties’ submissions were unduly prolix; but the primary ground for the application is that without cross-examination the trial Judge will not gain an appreciation of:

(a)      the  specific  nature  of  HNZ’s  case  and  its  relationship  to  the applicants’ case;

(b)the structure  and  arrangement  of hearings  into  sessions  related to individual submissions on Topic 81;

(c)       the scope of the matters addressed in the session relating to HNZ’s

case;

(d)      the reasons for the summons of Ms Conner; and

(e)      why leave to produce the Council witnesses’ reports, as opposed to attendance of the witnesses, was permitted in relation to HNZ’s case and why the summons was framed in that way.

[9]      He submits the problem is HNZ is “putting words in the IHP’s mouth” as to its view of the source of HNZ’s  entitlement to consider Mr Conner’s  report in relation to the applicants’ submission, in circumstances where the evidence was withdrawn by the Council.

[10]     Mr Maassen also submits cross-examination is important as Mr Liggett’s evidence addresses matters concerning meetings, communications with other parties, the content of oral exchanges in certain hearings and press coverage that HNZ believes is important and which is not simply a matter of record.   He goes on to submit that precisely what HNZ did and in what context; how it used the summons to document and to pursue its case; and why should be tested to ensure the true context is known.  He says it is also important to establish HNZ did not oppose the applicants’ planning objectives for their land.

Principles guiding leave to cross-examine

[11]     It is well settled that leave to cross-examine in judicial review proceedings will rarely be granted and must be required by the interests of justice.1   It will never be in the interests of justice to permit cross-examination that does not pass the threshold tests for evidence set out at ss 7 and 8 of the Evidence Act 2006. These sections define the overarching parameters for relevant and admissible evidence. In this regard, the evidence sought to be adduced must have a tendency to prove a

relevant disputed fact. In addition, s 8(1)(b) states a judge must exclude evidence if its probative value is outweighed by the risk it will needlessly prolong the proceedings. I turn to assess the application for cross-examination considering these threshold requirements.

Assessment

[12]     I am not satisfied cross-examination of Mr Liggett will assist the Court in resolving a material issue of disputed fact, namely whether the summons process went wrong and was procedurally unfair to the applicants. I am also not satisfied the probative value of the cross-examination evidence will outweigh the risk it will needlessly prolong the proceedings. Accordingly, it is not in the interests of justice to permit cross examination of Mr Liggett.

[13]     First, the most relevant and probatively valuable evidence of the background and reasons for the summons, must come from the available public record  and affidavit evidence on behalf of the decision-maker. Indeed, as pleaded, the central problem is the issuance of the summons without requiring Ms Conner for cross- examination, despite the applicants’ request. Why the IHP took this course, if true, is plainly for the IHP to explain, not Mr Liggett.

[14]     Second, Mr Liggett’s account of what transpired is only relevant to the extent it provides an objective record of what occurred in relation to the issuing of the summons. His subjective opinion, perceptions or assumptions about the process,

together with his evidence about media coverage, has no or very limited probative

1      Geary v Psychologists’ Board [2009] NZSC 67, (2009) 19 PRNZ 415 at [1]. See also Siemer v

Official Assignee HC Auckland CIV-2010-404-1709, 4 August 20102011 at [32]-[33].

value. He was not the decision-maker.  The extent of media coverage is by definition a matter of public record.

[15]     Third, HNZ’s motivation in seeking the summons of Ms Conner will be a matter of public record and to the extent it is not, it is irrelevant. If Mr Maassen is suggesting HNZ engaged in surreptitious opposition to the applicants’ submission, then the pleadings will need substantial amendment.2  It is, in effect, a submission HNZ influenced, in a Machiavellian way, the IHP’s decision to issue a summons and that this influence had the desired effect.  Allegations of this kind are very serious and require credible evidence to support them.3 There is currently no evidence of this kind before me.

[16] Fourth, all the matters identified by the applicants, noted at [7](a)-(d) and [8](a)-(d) above, can be adequately addressed by reference to the available public record, including submissions, evidence, memoranda, IHP minutes and decisions. Whatever Mr Liggett might add via cross-examination on these matters, like his affidavit evidence, has very limited probative value. In terms of the matter identified at [7](e) above, HNZ’s reasons for the summons, not expressed publicly, are irrelevant. As to the matter noted at [8](e) above, as the Council is not the relevant decision-maker, whatever discussions took place between it and HNZ are irrelevant to the key issues in dispute.

[17]     Fifth,  given  the  limited  relevance  and  probative  value  of  Mr  Liggett’s evidence, cross-examination (which remains ill-defined in terms of its exact scope) will needlessly prolong the proceedings.

[18]     Overall, the weakness of the application for cross-examination is exemplified by the problem Mr Maassen says it is designed to address.4 Whatever words HNZ is trying to put in the IHP’s mouth are simply irrelevant to the central issue of whether the IHP acted in a procedurally unfair manner. That issue can only be resolved by reference  to  the  publicly  available  record  (including  correspondence)  and  what

evidence  the  applicants  and  the  IHP  can  produce  to  support  their  respective

2      Among other things, the pleadings allege HNZ did not oppose the applicants’ submission.

3      Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [15].

4 See above at [9].

positions. As noted, Mr Liggett’s evidence is only helpful to the extent it provides an

objective account, based on the available documentary material, of what occurred.

Outcome

[19]     The application for cross-examination is therefore declined. [20]       I reserve the question of costs on this application.