Save the Queen Street Society Incorporated v Auckland Council
[2024] NZHC 1512
•10 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-2860
[2024] NZHC 1512
UNDER the Judicial Review Procedure Act 2016 and the general law IN THE MATTER
of an application for judicial review of a decision by Auckland Council
BETWEEN
SAVE THE QUEEN STREET SOCIETY INCORPORATED
Applicant
AND
AUCKLAND COUNCIL
First Respondent
PRECINCT PROPERTIES PŪMANAWA LTD and PRECINCT PROPERTIES NEW ZEALAND LTD
Second Respondents
Hearing: 16 May 2024 Counsel:
A S Ross KC and A McDonald for Applicant
J W S Baigent and C J Ryan for First Respondent V V Kumar for Second Respondents
Judgment:
10 June 2024
JUDGMENT OF BREWER J
This judgment was delivered by me on 10 June 2024 at 4 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Lee Salmon Long (Auckland) for Applicant Simpson Grierson (Auckland) for First Respondent
Russell McVeagh (Auckland) for Second Respondents
SAVE THE QUEEN STREET SOCIETY INCORPORATED v AUCKLAND COUNCIL [2024] NZHC 1512 [10 June 2024]
Introduction
[1] This proceeding has a two-day fixture commencing at 10 am on 5 August 2024.
[2] The plaintiff (SQSS), in its statement of claim filed on 1 December 2023, seeks judicial review of the 2023 decision by the Auckland Council to (essentially) sell the Downtown Carpark. The plaintiff pleads errors of law:
(a)Failing to properly identify the objectives said to be met by the 2023 Decision;
(b)Failing to properly seek to identify all reasonably practicable options for the achievement of the objectives of the decision, including:
(i)Failing to consider or alternatively properly consider inviting expressions of interest to develop the Downtown Carpark site without the requirement to meet the development outcomes that had been removed, and whether doing so could reasonably practicably achieve the objectives;
(ii)Failing to properly consider the Alternative Proposals and whether they could reasonably practicably achieve the objectives;
(iii)Failing or refusing to properly consider the Competing Offer and whether it could reasonably practicably achieve the objectives.
(c)Failing to properly assess available options to meet the objectives in terms of their advantages and disadvantages;
(d)Proceeding on the basis that it was unable to make any decision other than to enter into a development agreement with Precinct.
[3] Issues have arisen as to the Auckland Council’s obligation to make discovery. SQSS contends that there is much more discovery to be made. Auckland Council says it has done more than it is strictly required to do.
[4]On 12 March 2024, SQSS filed an application for further and better discovery:
1.The applicant, Save the Queen Street Society Incorporated, will on apply to the court for orders:
(a)The First Respondent must provide discovery in accordance with the standard discovery order made by Venning J on 8 December 2023 (Discovery Order);
(b)Costs.
Grounds for orders sought
2.The grounds on which each order is sought are as follows:
(a)The First Respondent has taken an incorrectly restrictive approach to meeting the requirements of the Discovery Order;
(b)The First Respondent has failed to comply with the Discovery Order;
(c)Standard discovery requires each party to disclose documents that are or have been in that party’s control and that are relied on by that party or adversely affect party’s case, or that support or adversely affect another party’s case.
[5] Initially, the parties sought a half-day hearing. Justice Jagose told them that the earliest half-day hearing available was 15 August 2024. The parties then agreed to a one-hour hearing. That took place before me on 16 May 2024.
[6] Counsel used the hour well. They succinctly addressed the main points of their respective arguments. But, behind their oral presentations are nine affidavits (some lengthy), address-every-point written submissions, and bundles of authorities containing more than 30 cases.
[7] Fortunately, Mr Ross KC recognised that, given the proximity of the trial hearing, it is better to get a decision with brief reasons as soon as possible than a more comprehensive decision just before the fixture.
[8]This judgment gives my decision on the application with brief reasons.
Discussion
[9] The proceeding is for judicial review. On 8 December 2023, Venning J made this direction by consent:
First Respondent to provide discovery by 16 February 2024 (including discovery of the record, and discovery of a redacted version of the development agreement) with inspection of the redacted development agreement to be undertaken on a counsel only basis.
[10] I do not consider this to be a standard discovery order in the context of a general proceeding. That would not be appropriate in the judicial review context. The order was made by consent pursuant to s 14(h) of the Judicial Review Procedure Act 2016.
[11] The scope of discovery in a judicial review hearing is well-known. I respectfully adopt Cooke J’s discussion:1
[6] The scope of orders by way of disclosure, or discovery in judicial review proceedings is properly dealt with under s 14(h) of the Judicial Review Procedure Act 2016. Section 14 partly operates as a procedural code of its own for judicial review.2
[7] Mr Mijatov referred to this Court’s observations in New Zealand Steel Ltd v Minister of Commerce and Consumer Affairs that there was no real difference between the test for discovery in a judicial review proceeding and an ordinary proceeding. This was because discovery must still reflect the issues in the case, and context relevance and proportionality remain the touchstones.3
[8] But the requirement for relevance and proportionality are particularly important in judicial review. As Miller J said in Te Runanga O Ngati Awa v Attorney-General:4
It is common ground that discovery is available in judicial review, although it is discretionary. Mr Kos maintained however, that there is no significant difference in principle between discovery in judicial review and in regular civil proceedings, citing Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63 (CA). I prefer the view that judicial review is a relatively simple, untechnical and prompt procedure, and that Judges are responsible for narrowing issues and supervising the proceeding to ensure that the material placed before the Court is reduced to the necessary minimum: BNZ Investments Limited v CIR (CIV 2006-485-697, HC Wellington, 7 December 2006, Wild J). The material must be both relevant to the proceeding and necessary in the circumstances. In many cases, there is no room for the Peruvian Guano “train of inquiry” test.
[9] This seems to me to properly encapsulate the correct approach. As Williams J explained in Ririnui v Landcorp Farming Ltd (No 1):5
Discovery is not usually granted in judicial review proceedings, for the most part because it is unnecessary. Public authorities usually disclose relevant documentation in affidavit evidence without the need for
1 Gama Foundation v Chief Executive of the Ministry of Social Development [2021] NZHC 3146.
2 See Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353; Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 656–658; Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166, [2017] 20 ELRNZ 105, [2017] NZRMA 269 at [19].
3 New Zealand Steel Ltd v Minister of Commerce and Consumer Affairs [2017] NZHC 3232, (2017) 24 PRNZ 409 at [18]–[29].
4 Te Runanga O Ngati Awa v Attorney-General Wellington CIV-2006-485-1025, 28 March 2007 at [6].
5 Ririnui v Landcorp Farming Ltd (No 1) [2014] NZHC 732 at [5].
specific orders. And, as it is often said, judicial review is intended to be a short and simple means by which to test the legality of public sector decision-making affecting ordinary citizens. But on the face of it, such documents as are sought here are within the penumbra of the claim as put by the plaintiff. They are prima facie relevant.
[10] In the end the Court must make an assessment of what discovery is required to enable the applicant to fairly argue its case, whilst at the same time ensuring that the materials remain relevant, and the requirements are consistent with the objective of judicial review being a simple, untechnical and prompt procedure.
[12] The Auckland Council’s discovery was made by Mr Michael Lichtwark in his affidavit of documents affirmed on 19 February 2024. Mr Lichtwark is a Senior Legal Counsel at Auckland Council. He describes the steps taken:
5.In order to fulfil Auckland Council’s obligations under the Discovery Order, I have assisted with co-ordinating the search for all documents that the Council is required to discover, and I have taken the following particular steps:
(a)discussed the extent of the discovery process with Auckland Council’s external legal advisors;
(b)reviewed and collated the documents that have previously been provided to the applicant under the Local Government Official Information and Meetings Act 1987;
(c)retrieved from the Council’s website copies of the publicly available agendas and minutes of the relevant Council meetings;
(d)contacted Council officers involved with this matter and retrieved confidential material in relation to the relevant Council meetings that is not publicly available on Council’s website and other relevant material that went before elected members at meetings or workshops and any correspondence or other documents that relate to those meetings or workshops;
(e)discussed the Discovery Order with staff at Eke Panuku Development Auckland (Eke Panuku) to retrieve copies of potentially relevant documents held by Eke Panuku including copies of the materials that went before Waitemata Local Board, Auckland City Centre Advisory Board and Heart of the City following the 15 December 2020 decision by the Council’s Finance and Performance Committee;
(f)arranged for the professional services firms that advised Eke Panuku during the Expression of Interest (EOI) and Request for Development Proposal (RFDP) processes, and during the negotiation of the development agreement to provide relevant documents connected with that work; and
(g)retrieved copies of the correspondence sent by the applicant and Ninety Four Feet Limited to the Council prior to the 23 November 2023 meeting.
[13] Mr Lichtwark affirmed a second affidavit on 26 March 2024 in support of Auckland Council’s opposition to SQSS’s application. Much of the affidavit is in the nature of submissions. However, Mr Lichtwark deposes:
9.In addition to the record, and by reference to the pleadings and in light of the adverse documents test, I took the particular steps described in paragraphs 5(e) and (f) of my First Affidavit to discover documents that went beyond the record of the Council’s decision-making but were directly relevant to specific allegations in the statement of claim. I note that the Council filed its statement of defence on 30 January 2024 which admitted a number of the paragraphs of the statement of claim. The documents that were discovered by reference to matters raised in the pleadings is summarised in the table below.6
10.I recognise that this approach does not result in disclosure of every Council document from December 2020 onwards relating to the Downtown Carpark, a period during which the Downtown Carpark was being operated as a public carpark. Any further documentation would be in my view irrelevant or merely background to the matters at issue in the proceedings, and it follows that further discovery should not be required, nor would it be proportionate.
[14] SQSS’s disquiet with the Auckland Council’s discovery is set out in Ms Sara Ford’s affidavit of 12 March 2024 and elaborated by counsel in their synopsis of submissions:
What ought to have been searched, but was not
23.The Council was obliged to search and disclose all documents responding to the Discovery Order. Rule 8.14 provides that a reasonable search must be undertaken. What constitutes a reasonable search will be context specific,7 and involves consideration of the following:
(a)the nature and complexity of the proceeding;
(b)the number of documents involved;
(c)the cost of retrieving documents;
(d)the significance of any document likely to be found; and
(e)the need for discovery to be proportionate to the subject matter of the proceeding.
6 Table omitted.
7 Woolley v Marlborough District Council [2023] NZHC 3840 at [19].
24.In order to comply with its discovery obligations, the Council ought to have searched and discovered relevant documents including, for example, communications with and between (as applicable):
(a)Auckland Council (Councillors and staff);
(b)Eke Panuku;
(c)Precinct Properties Pumanawa Limited And Precinct Properties New Zealand Limited;
(d)Ngāti Whātua Ōrākei.
25.The Council says that such communications are not relevant.8 It is not clear how it can take that position without having searched for and reviewed them. It is self-evident that communications relating to the Decision at issue with and between the parties above may be relevant, as such communications may well bear on the question of what was or was not considered by the Council in deciding to sell the Downtown Car Park.
26.Further, SQS has provided affidavit evidence recording that the discovered material includes no text messages or material from other messaging platforms such as Messenger or WhatsApp.9 The Council did not search for these documents.10 Mr Lichtwark deposes that he did not ask Council staff to search those platforms because “these formats were not used to formally convey information to the Council’s Governing Body by officers in advance of the [decision subject to challenge]” (emphasis added).11
27.Whether communications are “formal” (whatever that means to Mr Lichtwark) does not bear on the relevance of documents, so long as they relate to matters in issue. Councillor Mike Lee deposes that Mayor Brown regularly communicates regarding council-related business using text messages.12
28.In any event, the Council’s failure to search for such communications is indefensible on the basis that it is a matter of public record that Mayor Brown regularly uses such channels for communications regarding Council business.13
[15] In my view, the Auckland Council’s approach to discovery is correct in the context of the claim. Mr Lichtwark has described the searches made and his awareness
8 Affidavit of Michael Lichtwark, dated 26 March 2024 at [12].
9 Affidavit of Sara Jane Ford, dated 12 March 2024 at [8].
10 Affidavit of Michael Lichtwark, dated 26 March 2024 at [11].
11 Affidavit of Michael Lichtwark, dated 26 March 2024 at [11].
12 Affidavit of Mike Lee in support of interlocutory application.
13 See for example: align="left">of, and response to, the adverse documents test. There is no breach of the duty of candour.
[16] SQSS’s application would extend discovery to a wide-ranging and not very clearly defined exercise that might uncover some communications relevant to why or how the material provided to the Auckland Council’s decisionmakers was selected. But, obviously, the legality of the 2023 decision in question will be determined by examining the decision itself against the material which was before the decisionmakers and in the light of the law which bound them. That material, and more, will be before the Court. I accept the Auckland Council’s submissions:
27.The challenged decision was made at a formal meeting of the Council’s Governing Body.14 There are statutory requirements15 and standing orders regulating Council meetings and their associated procedures, which involve the preparation of agendas (which include any relevant reports to the elected members), and the preparation of minutes recording the decisions made.
28.The Council’s Governing Body only “speaks” in a legal sense through these mechanisms. In the Council’s submission, the “record” for the challenged decision is limited to these documents, which are the record of the material before the decision-maker, the decisions made and the reasons.16 This will include any confidential content which has not been or would not normally be made publicly available through official information channels.
29.In this case, however, as explained in Mr Lichtwark’s 26 March 2024 affidavit,17 he took a more expansive view of the record and included additional correspondence which had been provided to the Governing Body in the lead-up to the 23 November 2023 meeting and decision. As such all documents that went before the Governing Body in advance of the 23 November 2023 Decision, have been discovered.
14 The Governing Body is responsible for the relevant decision making of the Auckland Council under section 15 of the Local Government (Auckland Council) Act 2009.
15 In the Local Government Official Information and Meetings Act 1987.
16 Ferguson v Chief Executive of the Department of Corrections [2022] NZHC 1430 at [11] records the approach taken to documents included in the record; also see [26]. Also refer New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 561-562: “What is desired is a record of what material was put before the Minister in the course of events and on which he made his decision…”; Taylor v Chief Executive of Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [33]: “…the general rule is that judicial review proceedings are determined on the basis of the material before the decision-maker at the time of the decision.”
17 Paragraph 7. At paragraph 11 Mr Litchwark confirms that he is not aware of any communications between officers and the Governing Body that have not been discovered.
Decision
[17] In my assessment, the discovery made enables SQSS to fairly argue its case as pleaded. It is not necessary to go wider. To do so would be of questionable relevance and inconsistent with the goal of judicial review being a simple, untechnical and prompt procedure.
[18]The application is dismissed.
Brewer J
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