Riddiford v Attorney-General

[2009] NZCA 603

IN THE COURT OF APPEAL OF NEW ZEALAND

CA353/2009
[2009] NZCA 603

BETWEENDANIEL THOMAS SPENCER RIDDIFORD AND YVONNE ADA RIDDIFORD

First Applicants

ANDDANIEL THOMAS SPENCER RIDDIFORD

Second Applicant

ANDTHE ATTORNEY-GENERAL

Respondent

Hearing:1 December 2009

Court:William Young P, Chambers and Ellen France JJ

Counsel:Applicant in person

R B Chan for Respondent

Judgment:16 December 2009 at 11 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted with respect to the following questions:

(1)      Did the Land Valuation Tribunal have jurisdiction to award costs in the sum it did? 

(2)Was the Tribunal’s award of costs excessive?

B            Costs on this application are reserved. 

REASONS OF THE COURT

(Given by Chambers J)

Application for leave to appeal

[1]        Daniel Riddiford and his mother, Yvonne Riddiford, obtained scheme plan approval in 1991 to subdivide their farm.  As a condition of the subdivision, the relevant local authority required a coastal strip of the farm to be set aside as a local purpose reserve under s 289 of the Local Government Act 1974 (“the LG Act”).  When compensation for the reserve could not be agreed, that issue was referred to the Land Valuation Tribunal under s 290 of the Act.  The Tribunal fixed the compensation at $156,200: Riddiford v Attorney-General LVT WN LVP1/00 9 December 2005.  Mr Riddiford thought that figure far too low; he had sought compensation of over $13 million.  Subsequently, on 18 May 2007, the Tribunal ordered the Riddifords to pay to the Crown a contribution of $100,000 towards its costs on the Tribunal hearing.

[2]        The Riddifords appealed to the High Court against the Tribunal’s decisions.  Ronald Young J and Mr J P Larmer in large part dismissed that appeal: HC WN CIV‑2006‑485‑833 23 June 2008.  The Riddifords were still dissatisfied.  They applied to the High Court for leave to appeal to this court, but Ronald Young J declined that application on 22 May this year.  They now seek leave to appeal from this Court. 

[3]        The criteria for leave to appeal to the Court of Appeal are set out in s 18A(2) of the Land Valuation Proceedings Act 1948 (“the LVP Act”).  The first criterion is “whether any question of law or general principle is involved”.  Mr Riddiford identified six questions which he said merited this Court’s attention.  The other criteria under subs (2) are the importance of the issues to the parties, the amount of money in issue, and such other matters as in the particular circumstances the Court thinks fit.  As to the application of these criteria, see Chief Executive of Land Information v Luke [2008] NZCA 43.

The proposed questions

Question 1

[4]        The first question was whether the Tribunal had jurisdiction to award costs against a party to the proceeding in favour of the Crown.  Mr Riddiford submitted it did not have jurisdiction.  Mr Riddiford’s argument, at least on the basis on which he presented it, is unsustainable.  There is no doubt that the Tribunal does generally have the power to award costs: see s 19(14) of the LVP Act, incorporating s 11 of the Commissions of Inquiry Act 1908 (“the 1908 Act”).  We accept there may be an issue as to whether the Tribunal has jurisdiction to order the Crown to pay costs: see Boulton v The Valuation Department LVT WN LVP74/76 3 July 1980, a decision on which Mr Riddiford relied.  Even if the reasoning of that decision is correct, however, it does not follow that the Crown cannot be the beneficiary of a costs order.  Asymmetrical costs regimes are not, after all, unknown: see, for example, Air New Zealand Limited v Commerce Commission [2007] 2 NZLR 494 (CA).

[5]        There is a question, however, as to whether it is fair and reasonable, if the Crown cannot be liable for costs, that it should be entitled to a full award in circumstances where it is successful.  Should a costs order be tempered by the fact (if it is a fact) that, if the shoe were on the other foot, no costs award at all would be made?  We consider that is a question Mr Riddiford should be able to explore on a second appeal. 

[6]        There is, however, an even more fundamental costs question, which the Bench raised with the parties at the oral hearing.  That is whether the Tribunal had jurisdiction to award costs of more than $600.  The potential argument runs as follows.  Section 12 of the Commissioners Act 1903 (“the 1903 Act”) authorised “any two or more Judges of the Supreme Court [to] make rules prescribing a scale of costs” with respect to inquiries under that Act.  Stout CJ and Cooper J did promulgate such a scale on 15 December 1903 (“the 1903 scale”).  The scale is to be found in (11 February 1904) New Zealand Gazette at 491, under the heading “Fixing Scale of Costs under the Commissioners Act 1903”.  The Gazette notice reads as follows:

In the matter of “The Commissioners Act, 1903.”

We, the undersigned Judges of the Supreme Court of New Zealand, do hereby, by virtue of section 12 of “The Commissioners Act, 1903,” make the following rules prescribing a scale of costs payable in respect of any inquiry under the said Act, namely:‑

Rule I.  The following shall be the scale of costs for an inquiry under “The Commissioners Act, 1903,” –

(1.)Preparing for the inquiry, seeing witnesses  £    s     d

and preparing brief, not exceeding ...   6    6    0

(2.)Fee for attendance of counsel at hearing,

not exceeding (per day) ...   15    15   0

(3.)Costs of argument of a special case –

Preparing case, from ...  £2.2 s. to 5    5    0

Argument of special case, from                   £10.10 s to   21    0    0

if the Court before whom the case was argued certifies that costs should be allowed.

Rule II.  Any other costs awarded shall be the same as the scale in the Supreme Court, and if there is any doubt as to what costs should be allowed pursuant to scale in any particular matter the Commissioner shall have regard to the scale, and fix such sum accordingly.

Rule III.  No costs of any inquiry shall exceed £300. 

Dated at Wellington, 15^th December 1903.

[7]        The 1903 Act was consolidated into the 1908 Act, the current statute.  Section 1(2) of the 1908 Act reads as follows:

(2)      This Act is a consolidation of the enactments mentioned in the Schedule hereto, and with respect to those enactments the following provisions shall apply:

(a)      All Commissions, appointments, rules, Orders in Council, orders, instruments, and generally all acts of authority which originated under any of the said enactments or any enactment thereby repealed, and are subsisting or in force on the coming into operation of this Act, shall enure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions of this Act, and accordingly shall, where necessary, be deemed to have so originated:

[8]        One of the enactments named in the Schedule was the 1903 Act.  Section 12 of the 1903 Act did have a “corresponding provision” in the 1908 Act, namely s 14.  Until 1986, s 14 provided:

Any three or more Judges of the Supreme Court, of whom the Chief Justice shall be one, may ... make rules prescribing a scale of costs ...

Provided that all such rules shall be subject to the approval of the Governor‑General in Council. 

[9]        So the 1903 scale enured for the purposes of the 1908 Act as if it had been made under s 14. 

[10]       Whether the 1903 scale continued to apply arose for consideration in the litigation which followed the report of the Erebus Royal Commission.  The Royal Commissioner had awarded costs against Air New Zealand in favour of the Department of Justice in the sum of $150,000.  Air New Zealand challenged that award on a number of grounds, of which one was that it was unlawful as being in excess of the 1903 scale.  The Royal Commissioner’s costs award was set aside on other grounds in this Court, a decision subsequently confirmed by the Privy Council: ReErebus Royal Commission; Air New Zealand Limited v Mahon (No 2) [1981] 1 NZLR 618 (CA); aff’d Re Erebus Royal Commission; Air New Zealand Limited v Mahon [1983] NZLR 662 (PC). This Court appeared to consider, however, that the award might have been unlawful in any event “because the amount is far greater than the maximum allowed by the long out-of-date but apparently still extant scale prescribed in 1903”: [1981] 1 NZLR 618 at 664, and see also at 623‑624. The Privy Council expressly refrained from expressing a view about the 1903 scale: [1983] NZLR 662 at 687. It is apparent, however, that an argument was addressed to them to the effect that the 1903 scale was ultra vires.

[11]       Since the Erebus decisions, s 14 of the 1908 Act has been amended.  It now reads:

Rules prescribing a scale of costs payable in respect of any inquiry under this Act may be made in the manner provided in section 51C of the Judicature Act 1908.

[12]       Did the substitution of that new s 14 impliedly revoke the 1903 scale?  Or did the scale continue to enure, either by virtue of s 1(2) of the 1908 Act, the new s 14 still being a “corresponding provision” of s 12 of the 1903 Act, or by virtue of some provision in the Interpretation Act 1999?  So far as our rudimentary researches indicate, the 1903 scale has never been expressly revoked, even after the Erebus litigation threw up the fact the scale was probably still extant, despite being obviously hopelessly out-of-date.  The Law Commission is of the view too that the 1903 scale is still in force: see Law Commission A New Inquiries Act (NZLC R102, 2008) at [7.16]. 

[13]       Even though this was not the jurisdictional costs argument Mr Riddiford planned to run, we think he should be allowed to run it, if he wishes to.  If it is right, then the award of costs, instead of being $100,000, should not have exceeded $600.  Therefore a substantial sum of money is involved.  The costs order and its extent has always been very important to the Riddifords. 

[14]       Thus, there are two different costs questions.  Logically, the second one we have been discussing based on the 1903 scale comes first, because if that question is answered in the Riddifords’ favour, the maximum permissible award would presumably have been $600.  If that argument fails, however, then the first question we discussed arises.  That question turns on the alleged asymmetry of the Tribunal’s costs regime in circumstances where the Crown is a party. 

Question 2

[15]       The second question Mr Riddiford posed was whether the High Court, on an appeal under the LVP Act, had jurisdiction to award costs against a party to the proceeding in favour of the Crown.  Again, Mr Riddiford submitted it did not have jurisdiction.  This point is unarguable.  Section 37A of the LVP Act reads as follows:

(1)On the determination of any appeal to the [High] Court (not being an appeal from a decision of a Land Valuation Tribunal on a claim for compensation under the Public Works Act 1981 or in proceedings under the Land Settlement Promotion and Land Acquisition Act 1952), the Court may make such order as to the payment and amount of costs to any party to the appeal as it thinks fit.

(2)This section shall bind the Crown.

[16]       That section is crystal clear as to the High Court’s jurisdiction to award costs.  Subsection (2) is interesting.  It makes clear that the Crown may, in the High Court, be ordered either to pay costs or to receive them.  The reasoning in Boulton, even if right so far as the Tribunal is concerned, is inapplicable once a proceeding has reached High Court level.   

[17]       Question 2 does not meet the statutory criteria. 

Question 3

[18]       The third question related to the High Court’s powers to receive fresh evidence on an appeal to the High Court under s 26 of the LVP Act.  The Riddifords had applied to the High Court for leave to adduce further evidence.  MacKenzie J heard that application and dismissed it on 31 March 2008.  The Riddifords sought to appeal MacKenzie J’s decision, but that application for special leave failed: Riddiford v The Attorney-General [2008] NZCA 542. Clearly, the Riddifords cannot now raise that topic again. Question 3 is declined on the basis that this Court has already ruled on a near identical question.

Question 4

[19]       The fourth question was whether “there are two laws of taking in New Zealand”.  Alternatively, Mr Riddiford phrased this question as follows:

In determining the amount of compensation, was the Tribunal bound to follow the approach in Russell v The Minister of Lands (1898) 17 NZLR 241 (SC)?

[20]       This question does not merit consideration by this Court.  First, compensation in this case was required by s 290 of the LG Act.  That section was repealed in 1991.  How compensation was to be calculated under that section is, therefore, now of historical interest only. 

[21] Secondly, in any event, like the High Court, we consider the Tribunal approached the valuation on the only sensible basis – what the Tribunal called the “before and after” approach: at [9]. That had been the approach of all the valuer witnesses appearing before the Tribunal.

Question 5

[22]       The fifth question was whether the Tribunal should have awarded “full compensation” as that term has been explained in cases such as Wellington City Corporation v Berger Paints NZ Limited [1975] 1 NZLR 184 (CA). Berger involved land taken under the Public Works Act 1928. Section 42(1) of that Act provided that every person whose land was taken under that Act for a public work was “entitled to full compensation”. That wording is replicated in s 60 of the Public Works Act 1981. Section 62 of that Act then goes on to make more detailed provision as to how the amount of compensation is to be assessed. The Tribunal in the present case specifically said it was adopting “the methodology described in the Public Works Act”: at [9]. By this means, it arrived at compensation of “an amount equal to the value ... of the land set aside”, as required by s 290 of the LG Act.

[23]       The Tribunal therefore followed the “full compensation” mantra of the Public Works Act and the more detailed instructions as to valuation contained in that Act.  Question 5 raises, therefore, a question which does not legitimately arise.  What Mr Riddiford does not like is the figure the Tribunal arrived at when applying the Public Works Act methodology.  Whether the figure was right has already been the subject of detailed reassessment in the High Court by Ronald Young J and Mr Larmer.  That matter is not suitable for a second appeal. 

[24]       We may add that we are not convinced that “full compensation” means anything different from the “fair compensation” to which the Supreme Court referred in Waitakere City Council v Estate Homes Ltd [2007] 2 NZLR 149 at [45].

[25]       Question 5 does not meet the statutory criteria. 

Question 6

[26]       The final question is whether Magna Carta is the authority in law for all takings.  Chapter 29 of Magna Carta, which remains part of New Zealand law under s 3(1) and the First Schedule to the Imperial Laws Application Act 1988, provides that no one “shall be dispossessed of his freehold ... but by ... the law of the land”.  That is, as the Supreme Court explained in Estate Homes, the “principal general measure of constitutional protection”: at [45]. But Magna Carta does not in itself say anything as to how “fair compensation” is to be calculated where a statute confers a power to expropriate land: see Estate Homes at [45]. In order to assess quantum of compensation, one must look to relevant statutes appropriate to the particular taking. The relevant law for fixing the compensation in this case was s 290 of the LG Act, the LVP Act by implication and relevant parts of the Public Works Act 1981.

[27]       Question 6 does not meet the statutory criteria. 

Result

[28]       We therefore grant leave to appeal on the two costs questions.  We decline leave to appeal on the remaining questions, for the reasons given.  We remind Mr Riddiford that, if he wishes to pursue the appeal, he must file and serve a notice of appeal, confined to the two questions specified in order A, within 20 working days after the date of this judgment.  “Working days” is defined in r 3 of the Court of Appeal (Civil) Rules 2005. 

[29]       We reserve costs on this application. 

Solicitors:

Crown Law Office, Wellington, for Respondent