Rongotai Investments Ltd v Land Valuation Tribunal
[2019] NZHC 3040
•20 November 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-662
[2019] NZHC 3040
IN THE MATTER of the application for judicial review of a Land Valuation Tribunal hearing in respect of objections under the Rating Valuations Act 1998 and the Land Valuation
Proceedings Act 1948UNDER THE
Judicial Review Procedure Act 2016
BETWEEN
RONGOTAI INVESTMENTS LIMITED AND RONGOTAI ESTATES LIMITED
Applicants
AND
LAND VALUATION TRIBUNAL
First Respondent
AND
2468 LIMITED
Second Respondent
AND
BUNNINGS LIMITED
Third Respondent
AND
LYALL BAY PROPERTIES LIMITED
Fourth Respondent
AND
WELLINGTON INTERNATIONAL AIRPORT LTD
Fifth Respondent
AND
WELLINGTON CITY COUNCIL
Sixth Respondent
AND
ATTORNEY-GENERAL
Seventh Respondent
AND
NZ CASH FLOW CONTROL LIMITED
Eighth Respondent
Hearing: 19 November 2019
RONGOTAI INVESTMENTS LIMITED AND RONGOTAI ESTATES LIMITED v LAND VALUATION TRIBUNAL [2019] NZHC 3040 [20 November 2019]
Appearances: S Mills QC and M R Wolff for Applicants No appearance for the First Respondent
K P Sullivan for the Second, Fifth and Eighth Respondents S V McKechnie and J R Meager for the Third Respondent No appearance for the Fourth Respondent
No appearance for the Sixth Respondent D Jones for the Seventh Respondent
Date:
20 November 2019
JUDGMENT OF COOKE J
(Interim relief)
[1] By application dated 8 November 2019 the applicants (Rongotai) apply for interim orders under s 15 of the Judicature Review Procedure Act 2016 preventing the Land Valuation Tribunal (the Tribunal) from proceeding with hearing or determination of certain rating valuation objection hearings currently scheduled before it, including a hearing that is due to commence next week, until Rongotai’s judicial review claims are heard and determined.
[2] The judicial review proceedings concern the appropriateness of previous processes and determinations of the Tribunal, and are set out in an amended statement of claim dated 11 November 2019. Two judicial review claims are pleaded, apparent bias and pre-determination although both seem to advance the same central complaint.
[3] Mr Mills QC advanced the argument for Rongotai in support of the application. Mr Jones appeared for the Attorney-General in opposition to the order. Mr Jones explained that the Attorney-General appeared in relation to allegations concerning judicial conduct, and also in connection with the public interest in the inquiry processes. Ms McKechnie advanced the submissions in opposition on behalf of the third respondent, and Mr Sullivan on behalf of the second, fifth and eighth respondents.
Test for interim relief
[4]Section 15 of the Judicial Review Procedure Act 2016 provides:
(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2)The interim orders referred to in subsection (1) are interim orders—
(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:
(b)prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:
(c)declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.
…
(4)An order under subsection (2) or (3) may—
(a)be made subject to such terms and conditions as the court thinks fit; and
(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[5] The general approach to interim relief under the predecessor of this section, s 8 of the Judicature Amendment Act 1972, was set out by the Supreme Court in Minister of Fisheries v Antons Trawling Company Ltd,1 by reference to the judgment of Cooke J in Carlton & United Breweries Ltd v Minister of Customs.2 The Supreme Court held:
Before a Court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review and all the repercussions, public and private of granting interim relief.
[6] For the reasons more fully set out in Greer v Department of Corrections, in my view the Court should avoid an overly formalistic approach to the threshold question of whether the order sought is reasonably necessary to preserve the position of the
1 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101; (2007) 18 PRNZ 754.
2 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).
applicant, with the focus being on a consideration of the facts and circumstances of the case in the application of the discretion.3 When doing so the s 15 power should be interpreted and applied in light of its apparent purposes. These include the desirability of preserving the Court’s ability to grant effective relief if the judicial review challenge is successful, and relieving the applicant from the adverse effect of a decision until the challenge is heard and determined in deserving cases.
Background circumstances
[7] Rongotai is one of several parties participating in proceedings before the Tribunal challenging rating value assessments that have been made in relation to certain land in the area of Rongotai which is adjacent to Wellington Airport. For reasons that do not need to be elaborated upon at this stage there has been a considerable delay in relation to the hearing of objections before the Tribunal. The Tribunal is now addressing objections in relation to the same properties in a series of hearings in relation to different valuation periods. The relevant valuation periods are 2007, 2012, 2015 and 2018.4 Once the rating value is set this has a flow-on effect for the rent paid by lessees. Rongotai favours a high value as the owner of the freehold interest, and the respondents who are lessees favour a lower value.
[8] The Tribunal issued a decision in relation to the 2007 valuation period on 19 July 2019.5 It then declined an application by Rongotai to stay the hearings in relation to the further years by decision dated 19 August 2019.6 The Tribunal then proceeded with a hearing for the 2012 valuation period from 19–29 August. By an oral interim decision of the Tribunal dated 12 September 2009, the Tribunal then held that a particular transaction called the Pengelly transaction was relevant to its determination.7 It later issued its substantive decision dated 7 November 2019.8 The next hearing commencing next week is to deal with the 2015 valuation period, with the 2018 valuation period hearing scheduled for next year.
3 Greer v Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [21]–[26].
4 There were initially more years in issue but these are the remaining contested years.
5 NZ Cashflow Control Ltd v Wellington City Council [2019] NZLVT 078.
6 Rongotai Investments Ltd v Wellington City Council [2019] NZLVT 083.
7 Rongotai Investments Ltd v Wellington City Council [2019] NZLVT 093.
8 Rongotai Investments Ltd v Wellington City Council [2019] NZLVT 108.
[9] There have also been hearings before this Court. Rongotai filed an appeal from the 2007 valuation period decision of the Tribunal dated 19 July 2019 (CIV-2019-485- 430). Rongotai also commenced judicial review proceedings, including an application for what was essentially interim relief in relation to the Tribunal’s decision not to grant a stay (CIV-2019-485-495). On 26 August 2019 Justice Doogue dealt with the application for interim relief, where Rongotai sought orders staying the orders of the 2012 objections until determination of the judicial review. That application was declined. Doogue J held:9
[17] I consider there will be both private and public repercussions that militate against the granting of relief. These objections are being heard after considerable delay and the objectors and the public have a right to have proceedings resolved expeditiously and without further delay.
[10] At a hearing on 27 September 2019 Cull J dealt with Rongotai’s application for the allocation of a priority fixture to hear a separate question of law in relation to the appeal, as well as other matters. That application was declined. Cull J held that the question of law that had been formulated did not raise a discrete jurisdictional point. She then held:10
[21] Even if I am wrong about that issue, there are three reasons I consider count against a separate hearing:
(a)it will cause delay, not expedite the hearings;
(b)the parties had agreed to the four hearings being heard sequentially, with appeal issues being addressed later;
(c)the consequences of not proceeding with the scheduled hearings will cause further complications.
[11] Neither of these judgments dealt with the issue of bias and pre-determination, or the issues that have assumed prominence in connection with the present application. The hearing that gives rise to the allegations of bias and pre-determination occurred between 19–29 August, at approximately the same time as the matter was being dealt with on the papers by Doogue J. When the matter was before Cull J in September Rongotai had not yet formulated its new claims.
9 Rongotai Investments Ltd v Land Valuation Tribunal [2019] NZHC 2103. This proceeding has since been discontinued.
10 Rongotai Investments Ltd v Wellington City Council [2019] NZHC 2741.
[12] The origins of the allegations of bias and pre-determination arise from the Pengelly transaction, which involved a sale of a property. The ultimate question was whether this particular sale was relevant to assessing the market value of the properties in the area. Part of Rongotai’s arguments that it was not were based on two inter- related factual allegations. First Rongotai contended that the particular sale was effectively a forced or distressed sale. Secondly it was said the vendor had not acted prudently in achieving the best price, including because the person behind Rongotai, Mr Aharoni said that he and others had made offers to the vendors in relation to that sale for much higher amounts.
[13] Whilst these factual questions were always relevant to the valuation questions, they appeared to attain a greater prominence in the hearings than might be expected. In part that was due to a challenge to the veracity of the evidence given about the transaction, particularly from Mr Aharoni. The Tribunal permitted cross-examination of Mr Aharoni, and the expert witnesses called by Rongotai in reasonably forthright terms. The Tribunal itself, or more particularly the presiding Judge also joined in the questioning on this issue. It appears the Judge took a dim view of some of the evidence that was being given. During the evidence of the first expert witness for Rongotai he took the step of making an order excluding Rongotai’s witnesses, including not only Mr Aharoni but also the remaining expert witnesses who were going to be called in relation to the Pengelly transaction.
[14] In addition during the course of Rongotai’s evidence, and on more than one occasion, the Judge raised the question of whether he should be giving the witnesses, particularly Mr Aharoni a warning about committing perjury — in effect giving a warning that he might have to give such a warning. This last feature was slightly obscured by the Judge not using the word “perjury”, and referring to it as a “P warning”.
[15] Finally, shortly after the hearing, and in the oral interim decision of 12 September 2019, the Tribunal made adverse findings and observations about Mr Aharoni and other witnesses. Counsel for the third respondent had advanced the contention that the offers made by Mr Aharoni through a Mr Blackett were “a
construct” for Mr Aharoni to generate evidence that could later be used before the Tribunal to justify a higher value. The Tribunal held:11
[44] Mr McEntegart submitted to us very strongly that the evidence was sufficient to satisfy us that Mr Aharoni entered into this tender process and used Mr Blackett subsequently to try and argue for a higher per square metre value for the Rongotai land. His role in having Mr Blackett enquire with the Pengellys and his sending of the email after the date on which he knew the new contract were entered into are certainly highly dubious and could properly lead to that conclusion. It suggests that Mr Aharoni’s purpose in doing so was not in relation to the purchase of the property but rather for a collateral purpose.
[45] Overall it is more likely than not that these steps were to establish an arguable different per metre rate. Nevertheless, we want to be very clear that it is not necessary for us to reach that conclusion to conclude that the Pengelly transaction was entirely a market and relevant transaction.
Is there a position to preserve?
[16] I first deal with the arguments for the respondents that Rongotai does not have a position to preserve under s 15 of the Act.
[17] As I have already indicated at [6] above I do not adopt a narrow approach to this question. I accept that Rongotai does have a position to preserve. In particular it is about to engage in hearings before the same members of the Tribunal, and which will involve some time and cost for it that it wishes to avoid. Moreover as Mr Mills emphasised by reference to the decision in the Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, the right to a hearing conducted in a fair and impartial way is a fundamental right which warrants emphasis.12 It is not simply a monetary value that the applicant is seeking to preserve.
[18] But the extent of the position that the applicant is seeking to preserve also becomes relevant to the discretionary phase of the application of s 15. Whilst I accept that there is a position to preserve, I have decided that interim relief should not be
11 Other adverse comments were made that Mr Aharoni’s email relating to an offer was “suspicious” ([14]) that Ms Watson (a valuer working for QV) had given an answer on the matter that was “convenient” ([34]) that Mr Aharoni and Mr Young had discussed their evidence about whether the Pengelly transaction was distressed and that “there may be further ramifications of all this” ([36]) and that Mr Butcher’s evidence was “quite surprising” ([43]).
12 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
granted in the facts and circumstances of the present case for the reasons outlined below. These are influenced by the fact that the Court will be able to give an effective remedy should the applicants judicial review claims be made out. I explain this in more detail below.
Nature of the challenge
[19] It seems to me that a key consideration is the nature and strength of the applicants’ challenge, and what is necessary to properly assess it.
[20] The nature of the challenge Rongotai wishes to advance necessitates a careful consideration of all the evidence before the Tribunal and the circumstances of the case. That is not something that has been able to be achieved in this interim relief hearing even though I was able to read some of the more significant parts of the voluminous material filed, and the hearing of the application proceeded for most of the day. I accept that there are some features of the hearing that took place before the Tribunal between 19 and 29 August 2019, and the steps taken thereafter, that can be described as unorthodox, and give rise to a possible question relating to the fairness of the approach that was followed. I say that for the following reasons:
(a)Rongotai had put in issue factual questions relating to the Pengelly transaction. This included issues on whether it was a distressed sale, and whether Mr Aharoni’s offers were better evidence of the true value of the property. But the Tribunal’s factual inquiries appear to have gone further and included an inquiry on whether the evidence led before the Tribunal was untrue, and had been orchestrated. It is arguable that inquiring into whether the evidence had been so orchestrated was not relevant to what the Tribunal needed to decide. Indeed the Tribunal itself held that such findings were not necessary for it to reach its decision, but only after first making them.13
13 At [45]. Engaging in an inquiry as to a party’s conduct before the Tribunal can be problematic. Indeed this was part of the criticism made by the Court in Re Erebus Royal Commission (No 2) [1981] 1 NZLR 618 (CA), [1983] NZLR 662 (PC) at 686.
(b)Orders excluding witnesses can be made by a Court when there will be significant credibility issues in a case — for example when the case concerns an allegation of fraud.14 That is not something that would be normal in proceedings before the Land Valuation Tribunal, even where there were factual issues. The orders made by the Tribunal here were unusual in three further respects. First they occurred some way through the hearings, covered only the witnesses for one party, and were not made on the application of any party. Secondly, they did not exempt the representative of a party appearing before the Tribunal, and whilst there remains jurisdiction to exclude a party representative as part of such an order, this is only done in extraordinary circumstances given the fundamental rights of a party to be able to participate in their own case.15 Thirdly it is unusual for such an order to apply to expert witnesses, which again would only be necessary when there were compelling reasons.16
(c)Occasionally it as appropriate for a Judge to give a warning that a witness runs a risk of committing perjury if he or she gives dishonest evidence. That is usually when there is a fairness concern for the witness. It is something that needs to be done with some care because of the implication that the Judge is pre-judging the credibility of the evidence. There have been cases where the giving such a perjury warning has been held to be evidence of pre-determination.17 In the present case the question whether such a warning should be given was raised several times by the Judge during cross-examination. It is arguable that this theme gave the impression of pre-determination and/or unfair treatment of the witnesses.
(d)The Judge engaged in substantial questioning himself, some of which arguably had the character of cross-examination. On occasion this may
14 See generally, Matthew Downs (ed) Cross on Evidence (loose-leaf ed, Lexis Nexis) at EVA, Part 3, Subpart 4.1(e), Ordering Witnesses out of Court.
15 See Robinson Crothall Ltd v Snap On Inc (2002) 16 PRNZ 430 (HC) at [40].
16 See Maruha Corporation v Amaltal Corporation (No 5) (2004) 17 PRNZ 83 (HC).
17 Hill v New Zealand Police [2017] NZHC 2112 at [23]–[24].
have given the impression that the questions were being pursued jointly with cross-examining counsel.18 During the cross-examination of Mr Aharoni by Mr McEntegart the Judge asked counsel “do you think I’ve got to the P-word warning or not?” and Mr McEntegart responds that he has. The Judge then says that he is reluctant to give such a warning, and directs counsel for Rongotai to have a discussion with Mr Aharoni. It is unusual for a Judge to ask opposing counsel whether the Judge should give a witness for another party a perjury warning.
(e)The release of decisions by the Tribunal also seems a little unusual. The release of an oral interim decision on 12 September (after the hearings had completed on 29 August) was explained by the Tribunal on the basis that witnesses appearing for the next rounds concerning the 2015 and 2018 periods should know that the Tribunal considered the Pengelly transaction relevant. But it was also said to be because proceedings were then being taken in the High Court, and the parties were being given the benefit of the Tribunal’s views.19 It is in this decision that the adverse credibility findings were made. Arguably the purpose of the decision was to make these adverse views known to the parties and this Court. When these judicial review proceedings were then issued and served on the Tribunal, including a claim for an order that the Tribunal not to release its substantive decision, the Tribunal then released the substantive decision that afternoon. The first paragraph of the decision stated that the decision was “unlikely to be issued before the commencement of the next hearing” which suggests there had been a change of mind on the timing of release.20 The release of the decision on the afternoon of the day the proceedings were served may be a coincidence, but it is arguable that the release of both of these
18 For example at NOE 362 the Judge takes over cross-examination of Ms Christina Watson, a registered valuer employed by QV for just over a page and a half of questioning before commenting at NOE 364 “well I can only take it so far Mr McEntegart. I have to leave it to your tender care again.”
19 Rongotai Investments Ltd v Wellington City Council, above n 7, at [2].
20 Rongotai Investments Ltd v Wellington City Council, above n 8, at [2].
decisions has been influenced by the Tribunal’s adverse views of Rongotai.
[21] Other matters have been mentioned in argument but it is unnecessary to address them at this stage.21
Factors against the grant of relief
[22] Notwithstanding these points, there are several features which satisfy me that the Court should not grant the interim orders.
[23] At this interlocutory stage I only have a preliminary basis for assessing the issues and evidence before the Tribunal. Mr Sullivan emphasised that it was Rongotai that had opened up the factual contests, and argued that as the evidence emerged it was clear there was no foundation for its contentions. It may well transpire that the Tribunal had good grounds to regard Rongotai’s evidence on the distressed nature of the Pengelly transaction, and the existence of offers at higher levels, as not credible. There can also be a fine line between finding that evidence is not credible, and a finding of perjury.22 Whilst that might not fully answer all concerns about the manner in which the hearings were conducted, it may provide fuller context to the criticisms that are now made by Rongotai.
[24] Previous cases involving allegations of pre-determination arising from the conduct of hearings illustrate the importance of context. In Re Royal Commission on Thomas Case the Court of Appeal was also dealing with a situation where comments made by the presiding judicial officer of the Commission of Inquiry were said to evidence pre-determination.23 But given the circumstances of that inquiry the Court concluded that the challenge based on pre-determination should not be upheld, whilst noting that the matter was finely balanced and had caused the Court anxiety.24 Similarly in Riverside Casino Ltd v Moxon the High Court had upheld a challenge
21 A particular matter concerning a familial association between counsel for Rongotai and a member of the Tribunal was referred to. I accept that this matter raises issues, but given it has not been expressly pleaded I do not think it appropriate to address it at this stage.
22 As Lord Diplock observed in Re Erebus Royal Commission, above n 13, at p 686.
23 Re Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA).
24 At p 284.
based on alleged conduct of this kind, principally because there were “too many signs pointing in one direction” in relation to the Chair’s comments during hearings of the Casino Control Authority.25 But on appeal the Court of Appeal referred to the Chair having heard the same arguments and evidence at other hearings, and ultimately concluded that the Chair’s “unnecessary robustness at times to us reflected more his personality and background than bias”.26 A similar approach to such cases was taken in the Australia authorities referred to by Ms McKechnie.27
[25] Perhaps most relevant authority is Russell v The Taxation Review Authority where the Court of Appeal addressed an allegation of pre-determination/bias by the Taxation Review Authority in relation to a decision in relation to a J G Russell tax avoidance template, which the same Judge had previously held to be patently an arrangement for tax avoidance.28 The Court held that Mr Russell had a basis for objecting to that Judge hearing the case. But the Court emphasised that there was an appeal to the High Court by way of a re-hearing, and that that re-hearing cured any issue of pre-determination.29 In the present case there is similarly an appeal by way of re-hearing to this Court, and accordingly the same potential for any concerns in relation to the manner of the first hearing to be addressed in the appeal process.
[26] The above authorities illustrate not only the desirability of assessing allegations of pre-determination in the full circumstances of the case, but also that any orders by way of relief need to be assessed in the full circumstances. Quite robust earlier findings, or comments during hearings have been held not to warrant intervention when the full context is understood. The discretion in relation to relief in judicial review is important. For example, even if the claims were upheld, it may be that the Court could quash the comments in the oral interim decision of 12 September, or make relevant declarations, but conclude that the substantive determination should not be disturbed.30
25 Moxon v Casino Control Authority, HC Hamilton, M324/99, 24 May 2000 at [96].
26 Riverside Casino Ltd v Moxon [2001] 2 NZLR 78 at [70].
27 Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488; Zaki v Minister of Immigration and Border Protection [2019] FCA 1822.
28 Russell v The Taxation Review Authority [2011] NZCA 158.
29 At [39]–[45].
30 See, for example, the declaratory relief given in Peters v Davison [1999] 3 NZLR 744 (HC).
[27] The factual contest concerning the Pengelly transaction appears to have occupied much hearing time before the Tribunal. But although it was an important sale, the ultimate issue was whether it should be included in the basket of transactions taken into account to assess the value of land. The question to be determined by the Tribunal, and then by this Court on any appeal, is what the appropriate value of the land is. There is no doubt that the Pengelly transaction occurred, with the only factual issues relating to whether it was at market price. So the ultimate issues of relevance are confined ones.
[28] It is also of particular significance that Rongotai is not irretrievably prejudiced by the hearings continuing. If it is successful with these judicial review proceedings, the Court retains the ability to grant effective relief. Were that point reached, the Court would be able to set aside the decisions of the Tribunal for 2012, and if necessary for 2015 and 2018 as well. The main prejudice to Rongotai arises from it continuing in the hearing process before the Tribunal which has already expressed strongly adverse views of Rongotai and its experts. As Mr Mills emphasised this has more than simply financial implications. But it is equally true that any order requiring the hearings to stop now to enable Rongotai’s judicial review proceedings to be heard would significantly disadvantage the other parties who wish them to continue, and upset the pre-arranged sequential hearing process determined at the outset. It was these factors that influenced Justice Doogue in declining the interim relief on a previous occasion,31 and it is also a feature that influenced Justice Cull’s decision in relation to the preliminary issue.32
[29] It is also relevant that the hearings in relation to 2015 and 2018 will not involve any factual contest of the kind that was involved in the dispute about the Pengelly transaction. Rather it is to be focused on the more routine questions that usually arise before the Tribunal as to assessment of the value of land. Whilst Rongotai will be calling the some of the same expert witnesses, I am advised that it now has different counsel instructed to appear at the hearings.
31 Rongotai Investments Ltd v Land Valuation Tribunal, above n 9.
32 Rongotai Investments Ltd v Wellington City Council, above n 10.
[30] There is also a background factor that the two valuer members of the Tribunal will only remain members of the Tribunal through to the first half of next year. Accordingly delaying the hearings process may mean that the Tribunal membership might need to change. That is a further factor in favour of the hearings continuing and being completed by the currently composed panel of the Tribunal.
[31] I also accept that there is some relevance to delay as Ms McKechnie and other counsel emphasised. The interim decision was released on 12 September, but these proceedings not filed until 6 November. I accept Mr Mills point that some time would have been required to assemble the potential case in relation to pre-determination, and then take advice from senior counsel as to whether it was appropriate to advance it. But it has still taken some time for the challenge to be brought, and as Ms McKechnie points out steps have been taken in the meantime, including the caucusing of the expert valuers for the next round of hearings beginning next week. There is some force in the submission she makes that in these circumstances the approach adopted by Dobson J in Bradfield v Attorney-General is appropriate, and that such proceedings should be taken at the “first reasonable opportunity”.33
[32] Mr Sullivan also emphasised the parties that are affected by the ongoing hearing processes are changing, with the impacts on each party varying in terms of the significance that a particular year’s determination has for the level of their rent. By itself that is a factor against the grant of an interim order.
[33] If Rongotai’s proceedings ultimately succeed, it will potentially adversely affect all parties who may be required to go through a new hearing process. But it is significant that all the parties who have appeared on this application oppose the orders sought by Rongotai as they wish to proceed. Their hearing rights are also important.
[34] It seems to me that before the Court would make interim orders of the kind that Rongotai seeks it would have to have been convinced that the judicial review proceedings were highly likely to succeed, such that the further hearings should accordingly be curtailed. But I am well short of that point. As Mr Jones submitted the matters that have been raised do not prevent the hearing going ahead. The potential
33 Bradfield v Attorney-General [2019] NZHC 1570 at [45].
concerns that I have identified in [20] above should not be overstated. The authorities recognise a degree of latitude in terms of the manner of hearings taking place before tribunals of this kind, and ultimately the Court could conclude that the criticisms of Rongotai had a solid evidential foundation, and that any residual concerns about the manner in which the hearings proceeded are not such that warrant the intervention of the Court.
Outcome
[35]For these reasons the application for interim orders is dismissed.
[36] I reserve the question of costs. Any parties seeking costs may file memoranda, with any response to be filed and served 15 working days thereafter. My preliminary view is this should be categorised as a 2B matter, that the Attorney-General should not be awarded costs, but that the second, fifth and eighth respondents represented by Mr Sullivan, and the third respondent represented by Ms McKechnie are entitled to costs. Whether that should be two costs awards, or a single costs award to be shared between the two opposing respondent groups is a matter which should be covered in memoranda if such applications are pursued.
[37] I further direct that the appeal proceedings in CIV-2019-485-430 and this proceeding, together with any other proceeding that are filed in relation to the hearings before the Tribunal in relation to 2015 and 2018, be subject to joint case management.
Cooke J
Solicitors:
Morrison Kent, Wellington for Applicants
Port Nicholson Chambers, Wellington for Second, Fifth and Eighth Respondents Simpson Grierson, Wellington for Third Respondent
Crown Law, Wellington for Seventh Respondent
4
9
0