Stafford v Attorney-General - [2021] NZHC 1466

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-341

[2021] NZHC 1466

UNDER the Judicial Review Procedure Act 2016; Part 30 of the High Court Rules; the Declaratory Judgments Act 1908; and the Common Law

IN THE MATTER

of an application for judicial review and/or declaratory judgments

BETWEEN

RORE PAT STAFFORD

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

ACCIDENT COMPENSATION CORPORATION

Second Respondent

FIRE AND EMERGENCY NEW ZEALAND

Third Respondent (discontinued)

KĀINGA ORA-HOMES AND COMMUNITIES

Fourth Respondent

NELSON MARLBOROUGH DISTRICT HEALTH BOARD

Fifth Respondent

HOUSING NEW ZEALAND LIMITED
Sixth Respondent

RADIO NEW ZEALAND LIMITED

Seventh Respondent (discontinued)

NELSON MARLBOROUGH INSTITUTE OF TECHNOLOGY

Eighth Respondent

STAFFORD v THE ATTORNEY-GENERAL [2021] NZHC 1466 [21 June 2021]

TRANSPOWER NEW ZEALAND LIMITED
Ninth Respondent (discontinued)

Hearing: 10-13 August 2020

Counsel:

K S Feint QC, M Smith and H Irwin-Easthope for Applicant

J R Gough, S M Kinsler and W I Gucake for First Respondent D L Laurenson QC and R L Roff for Second Respondent

V E Casey QC, R Brown and G Dawson for Fourth and Sixth Respondents

Judgment:

21 June 2021

JUDGMENT OF ELLIS J (FINAL ORDERS)

[1] In my judgment dated 2 March 2021 ([2021] NZHC 335) I asked the parties for further submissions on three matters. Memoranda were subsequently filed. There was little agreement amongst the parties on those matters, and so a further judgment is now required.

[2] To avoid the need to set out the complex background again, however, this judgment should be read in conjunction with the earlier one.

[3]The first two things about which I sought further input were:

(a)costs (as to which I had indicated a preliminary view that they should lie where they fall); and

(b)whether the Court should make declarations reflecting the observations in [185](d) and (e) of the judgment, namely that:

(d)Ministers were able to, and should have, advised Crown entities that they were expected to notify Mr Stafford in a timely way of any proposed disposals within the Spain award area; but in any event

(e)the Crown entities themselves, having been advised of the nature and history of Mr Stafford’s claim, are obliged—in Kāinga Ora’s case by dint of its own statute, but otherwise as a matter of general good faith arising in the particular and unusual circumstances of this case—to notify Mr Stafford in a timely way of any proposed land disposals within the Spain award area.

[4]I also asked for Mr Stafford’s further comment on:

(a)Why the revised Land Protection Mechanism (LPM) should include long-term (20 years or more) leases;

(b)Who should be responsible for making any further urgent application to the Court (Mr Stafford or by the Attorney-General);

(c)whether the costs of any such application should be reserved or whether Mr Stafford’s should be paid by the Crown on an indemnity basis; and

(d)whether the revised LPM should be expressly made subject to any relevant statutory requirements, powers or functions.

[5] I begin by setting out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 1466
Decision Date: 21 June 2021

CaseChat Overview and Summary

In this judicial review case, RORE PAT STAFFORD sought judicial review and/or declaratory judgments against the Attorney-General and several other respondents concerning the management and disposal of Crown-owned land within the Spain award area. The primary legal issues involved the Crown's obligations to notify Stafford of any proposed land disposals within the award area and the appropriate allocation of costs. The court also addressed the design of a revised Land Protection Mechanism (LPM) to safeguard Stafford's interests in the area.

The court first considered whether it should issue declaratory relief to reflect its findings that Ministers should have advised Crown entities to notify Stafford of any proposed disposals and that the Crown entities themselves should do so as a matter of good faith. The court concluded that while these findings were expressions of principle, they were not suitable for declaratory relief as they did not relate to the vindication of legal rights. Instead, the court believed the relationship between the Crown and Stafford was more complex than a simple declaration could capture.

Regarding costs, the court ruled that costs should lie where they fell between all parties. Although Stafford did not succeed on his primary claim, the court found that the proceeding raised an issue of considerable public importance, which justified a refusal or reduction in costs against the Crown. The court also noted that the delays in decision-making were not in the Crown's favor in terms of costs.

Lastly, the court examined the revised LPM. The court found that including long-term leases within the LPM might not impede the ultimate return of the land to Stafford and that the Crown did not need to seek court permission to sell land within the award area. However, the court noted that Stafford should be the applicant for any interim relief, and the Crown agreed to cover his filing fees and reserve the costs of any unsuccessful interim application until the conclusion of the substantive proceeding.

In summary, the court ruled that no specific declarations would be made, costs would lie where they fell, and the revised LPM was appropriate to protect Stafford's interests in the Spain award area.

Orders