Riddiford v Attorney-General

[2008] NZCA 542

IN THE COURT OF APPEAL OF NEW ZEALAND

CA632/2008
[2008] NZCA 542

BETWEENDANIEL THOMAS SPENCER RIDDIFORD AND YVONNE ADA RIDDIFORD

First Applicant

ANDDANIEL THOMAS SPENCER RIDDIFORD

Second Applicant

ANDTHE ATTORNEY-GENERAL

Respondent

CA636/2008

AND BETWEEN             DANIEL THOMAS SPENCER RIDDIFORD AND YVONNE ADA RIDDIFORD

First Applicant

ANDDANIEL THOMAS SPENCER RIDDIFORD

Second Applicant

ANDTHE ATTORNEY-GENERAL

Respondent

Hearing:2 December 2008

Court:Glazebrook, Robertson and Arnold JJ

Counsel:D T S Riddiford in person with McKenzie friend R Gunston

M T Parker for Crown

Judgment:8 December 2008 at 4 pm 

JUDGMENT OF THE COURT

AApplication for special leave to appeal interlocutory decision of MacKenzie J of 31 March 2008 is refused.

BWe refrain from considering the application for special leave in respect of the substantive judgment of 23 June 2008 as an application to the High Court for leave to appeal has not been determined.

CThe applicants must pay the respondent costs for a standard application on a Band A basis for a leave application and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]       These two matters were listed for hearing in the Miscellaneous Motions list.

[2]       Mr D T S Riddiford appeared in each of the matters for his mother and himself as trustees of the land in question, and personally as the lessee of the land in question.

[3]       The applicants sought compensation in the Land Valuation Tribunal under s 290 of the Local Government Act 1974 in respect of a 20 metre wide coastal strip that was set aside as a local purpose reserve.

[4]       There was an application to transfer the initial proceeding for first hearing in the High Court which was refused by Judge Tuohy on 5 April 2004.  Following a hearing in June and July 2005, Land Tribunal Judge Ongley and Mr G T Foster determined that the value of the land, taken as at 12 May 1999, was $156,200. 

[5]       In a decision as to interest issued on 18 May 2007, the Tribunal ordered that interest be paid at the rate of 11 per cent until 1 August 2002 and thereafter at 7.5 per cent. 

[6]       There was an appeal filed in the High Court against all determinations.

[7]       Following a hearing on 17 March 2008, in a reserved judgment of 31 March 2008, MacKenzie J refused the applicants leave to adduce further evidence at the appeal hearing.

[8]       The appeal proceeded to hearing on 5 June 2008 before Ronald Young J and J P Larmer.  In a reserved decision of 23 June 2008, the case was dismissed on all grounds.

[9]       There was a subsequent judgment as to costs that was dealt with on the papers.  The unsuccessful appellants application for costs was rejected.  Costs were allowed in favour of the respondent to a total sum of $11,865.50.

[10]     On 13 October 2008, the applicants sought leave to appeal against:

(a)MacKenzie J’s interlocutory judgment refusing the Riddifords leave to call further valuation evidence; and

(b)the High Court’s substantive judgment on the appeal from the Land Valuation Tribunal.

[11]     Ronald Young J held that, as the application for leave to appeal against the decision of MacKenzie J was out of time, it needed leave from the Court of Appeal.  The Judge also held that it was appropriate to adjourn the application for leave to appeal to the Court of Appeal against the substantive judgment until questions relating to MacKenzie J’s interlocutory judgment had been dealt with.

[12]     On 24 September 2008 the applicants filed an appeal in this Court against the High Court’s costs judgment.   There was also an application for leave to appeal out of time from the substantive judgment of Ronald Young J that had been delivered on 23 June 2008. 

[13]     Finally there was an application filed on the same day for an order for special leave to appeal to this Court against MacKenzie J’s decision refusing leave to adduce further evidence.

[14]     Although there were two matters listed before this Court, we deal only with one.

[15]     An application for leave to appeal was filed in the High Court and has been adjourned awaiting the outcome of the challenge to the decision of MacKenzie J.

[16]     Under s 18A of the LVP Act an application for leave can be made to the High Court or directly to the Court of Appeal.  In Chief Executive of LINZ v Luke [2008] NZCA 43 this Court said encouraged the practice that applicants go first to the High Court. As there is an existing application in the High Court which has been adjourned awaiting the outcome of this hearing it is inappropriate for us to consider the matter at this stage.

Special leave relating to the decision of MacKenzie J

[17]     This is expressed as being bought under s 18A of the Land Valuation Proceedings Act 1948 (LVPA) and ss 66 and 67 of the Judicature Act 1908.  The respondent contends it should be brought under r 29A of the Court of Appeal (Civil) Rules 2005, for an extension of time in which to appeal.

[18]     Mr Riddiford is adamant that he did not wish to be heard under those rules and contended that the Court had a less fettered discretion if the matter was dealt with under s 18A of the LVPA.

[19]     It is clear from a Minute of Ronald Young J of 19 May 2008 that the applicant knew of time limits with regard to appeals and the steps which he would need to take.  No explanation is provided as to why it was almost five months before he took the required steps.

[20]     The application, heard by MacKenzie J, sought leave to adduce further evidence:

(a)       By way of inspection of the subject property;

(b)Updating information on “comparable” properties;

(c)Quotable Value reduction to assessed land value having regard to the taking of the Esplanade Reserve;

(d)Failure to give effect to a Deed of Management; and

(e)As to the costs and disbursements incurred by the appellants.

[21]     The Judge was not persuaded, on an application of conventional principles, that a case had been made out and he declined leave to adduce further evidence.

[22]     The application before this Court challenges the Judge’s conclusions but the specific grounds of the proposed appeal have been expanded.  The proposed grounds now are:

(a)The LVPA prescribes a procedure outside the ordinary court structure;

(b)The applicants were entitled to a complete de novo hearing in the High Court, which could not happen without new evidence, including new valuation evidence;

(c)The legislative history is not sufficient to demonstrate that the distinction between appeals under the LVPA and Rules and other appeals which are subject to Part 10 of the High Court Rules so far as the discretion to hear further evidence is concerned no longer exists; and

(d)The usual test to be applied for the admission of further evidence under r 716 does not necessarily apply.

[23]     These grounds amount to the contention that MacKenzie J approached the application in error.

[24]     The applicants further contend that leave to adduce further evidence should be granted because of the “long established presumption of ‘full compensation’” (“equivalence”) described by a full bench of the Supreme Court in Russell (1898) XVII GLR 241 as the “spirit of Magna Carta”.  Mr Riddiford argues this principle was affirmed by the Supreme Court in Waitakere City Council v Estate Homes Ltd [2007] NZLR 149.

[25]     At a level of particularity, the applicants still refer to:

(a)The settlement by Quotable Value of an objection to the 2003 rating valuation for the property; and

(b)An alleged breach by the South Wairarapa District Council of the Deed of Management of the reserve.

Discussion

[26]     The starting point must be the nature of the appeal to which the applicants were entitled.

[27]     MacKenzie J undertook a careful analysis of the nature of that right of appeal in [2] to [6] and concluded:

[7]       I consider that that legislative history demonstrates clearly that any distinction between appeals to which the Land Valuation Tribunal Rules 1977 apply, and other appeals which are subject to Part 10 of the High Court Rules, so far as the discretion to hear further evidence is concerned, no longer exists.

[28]     We respectfully adopt his analysis and agree the usual test for the admission of further evidence under r 716 of the High Court Rules is applicable.

[29]     The substantive issue to be determined on the appeal to the High Court was whether the Land Valuation Tribunal had properly determined the current market value of the Esplanade reserve at July 1999.

[30]     At the hearing before the Tribunal, all parties had had the opportunity to call such evidence as they considered would assist the Tribunal in reaching its determination.

[31]     The applicants were represented by senior counsel throughout.

[32]     Mr Riddiford has spoken with us about evidence from Mr Jolly.  That was called, heard, assessed and weighed by the Tribunal.

[33]     Like MacKenzie J, we are not persuaded that issues which arose after July 1999 can inform the determination of a proper valuation as at that date.

[34]     In comprehensive and detailed submissions, the applicants do not identify any error in the approach adopted by MacKenzie J, nor any issue of principle.

[35]     There is no satisfactory explanation for delay in respect of an appeal against MacKenzie J’s interlocutory judgment.

[36]     The appeal to which it relates has now been heard.  There is no question of general or public interest.  This is a case of the application of well-defined principles to a particular fact situation.

Result

[37]     There is no basis upon which special leave could be justified and the application for special leave in respect of the decision of MacKenzie J of 31 March 2008 is refused.

[38]     We refrain from considering the application for special leave in respecti of the substantive judgment of 23 June 2008 as an application to the High Court for leave to appeal has not been determined.

[39]     The applicants must pay the respondent costs for a standard application on a Band A basis for a leave application and usual disbursements.

Solicitors:
Crown Law Office, Wellington for Respondent