Stafford v Attorney-General
[2021] NZHC 1466
•21 June 2021
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 RespondentRADIO 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 and addressing the parties’ respective positions on the question of declaratory relief and costs. I then deal with the questions relating to the LPM.
Declaratory relief and costs
Mr Stafford
[6]Mr Stafford seeks declarations reflecting my findings at [185](d) and (e).
[7]He accepts that letting costs lie where they fall is appropriate.
The Attorney-General
[8] The Attorney-General opposes the making of declarations in respect of Ministers’ communications with Crown entities.
[9] He also says that costs should follow the event, which (he submits) is Mr Stafford failing on his claim for a moratorium on land sales within the Spain award area.
ACC
[10] ACC opposes declaratory relief, but apparently only on the grounds that more specificity is needed (discussed below).
[11]ACC seeks costs on a 2B basis with certification for second counsel.
Kainga Ora and HNZL
[12] Kainga Ora and HNZL oppose the making of declarations as against it but are content to let costs lie where they fall.
Discussion: declaratory relief
[13] I begin by recording that I do not understand ACC’s position on this issue. The conclusion expressed at [185](d) is essentially backward looking, and is about what the Ministers should have done. It does not affect ACC. And I struggle to see how the conclusion expressed at [185](d) (which is forward looking) could sensibly be interpreted as affecting the ACC property at all—it has already been determined by the Court of Appeal that Mr Stafford does not have a caveatable interest over the ACC property; it is not capable of being affected by my conclusion.
[14] ACC also suggests that the words “in a timely way”1 need to be the subject of some sort of definition. But as I think my judgment makes clear, those words simply mean: in a way that gives Mr Stafford a reasonable time to takes steps—if he chooses to do so—to protect any claimed interest in land falling within the Spain award area, in the event of a proposed disposal. For the reasons already given, the words do not, in any event, affect ACC (or do not do so at present, given that it only owns one property in the Spain Award area).
1 Which are used in both [185](d) and (e).
[15] In short, I can see no need to “clarify” these aspects of the judgment as suggested by ACC.
[16] In terms of the wider disagreement between Mr Stafford and the Attorney- General, I have formed the view that declaratory relief is not appropriate, although I do not agree with all the reasons advanced on the Attorney’s behalf. I consider those reasons omit to acknowledge the complexities arising from the Crown’s statutory relationship with Mr Stafford created by the Settlement Act. To demean that relationship by putting words such as “confidence” and “obligation” in inverted commas is, in my view, unhelpful. While other Courts may, of course, differ, I also do not regard my findings as simply relating to matters of “tone and emphasis”.
[17] That said, however, I accept the Crown submission that the purpose of declaratory relief is to vindicate legal rights. And as I think the tenor of my judgment makes clear, the language of “rights” is inapt when describing the present-day relationship between the Crown and Mr Stafford; it is more subtle and complex than that. The observations recorded at [185](d) and (e) reflect my view of what is properly required of the Crown and Crown agents to protect Mr Stafford’s interests. But they are not “hard” law findings or conclusions; they are expressions of principle that are not suitably recorded in declaratory form.
Discussion: costs
[18] The matter of costs as between Mr Stafford and Kainga Ora/HNZL has effectively been resolved by consent.
[19] As between Mr Stafford and the Attorney-General/ACC, I remain of the view that costs should also lie where they fall. Although I accept that Mr Stafford did not succeed on his “moratorium” argument, the reality is that Mr Stafford effectively had two out of three earlier judicial indications about that issue on his side.2 Moreover, as the Court of Appeal said in declining to transfer the application for judicial review to that Court, the proceeding raised an issue of “considerable public importance”.3 That
2 Collins and Williams JJ “for”, Courtney J “against” and Gilbert J declining to express a view.
3 Stafford v Attorney-General [2018] NZCA 490 at [37].
is a matter specifically referred to in r 14.7 as (potentially) justifying a refusal or reduction in costs.
[20] To the extent further reasons are required (which I do not think they are) the underlying merit of Mr Stafford’s substantive claim has already been determined by the Supreme Court. The ongoing legal complexities arising from that, and from the Settlement Act (of which the application for judicial review was merely a manifestation) cannot by and large fairly be sheeted home to Mr Stafford. While I do not suggest that Mr Stafford will always be immune from costs on that basis, it is a matter that falls in his favour here. As well, the delays in making the decisions relevant to these proceedings, and noted in my main judgment, do not count in the Crown’s favour in terms of costs.
[21]Costs as between all parties will lie where they fall.
The revised LPM
[22] As far as the revised LPM is concerned, I begin by acknowledging my omission to refer in my earlier judgment to the undertaking filed by the Crown 10 days after the hearing. I cannot now say with certainty whether it was merely overlooked by me or whether it was never brought to my attention. In any event, the undertaking was in materially identical terms to the “draft orders” referred to in my judgment, and which formed the basis for my request for further comment.
[23] The issue referred to at [4](d) above has effectively been resolved by consent and I do not address it further.
[24] As far as the matters referred to at [4](a) to [4](c) are concerned, I have now carefully considered the submissions made on Mr Stafford’s behalf. But my view on the other three matters remains as it was at the time of my earlier judgment. Briefly, to reiterate:
(a)While I accept that the existence of a long-term lease might constitute an unwelcome medium-term encumbrance on land that is ultimately
returned to Mr Stafford, equally, it may not.4 Pending resolution of the substantive proceeding the Crown needs to be able to deal with any land within the Spain award area in a commercially sensible manner, although I am sure that in doing so it would bear Mr Stafford’s claims in mind. Ultimately, it is the return of the land itself that is of fundamental importance to Mr Stafford and I do not consider that will be impeded by the granting of leasehold interests.
(b)In the event the Crown wishes, in future, to dispose of land within the Spain award area Mr Stafford says the Attorney-General should apply to Court for permission to do so. He says that reflects the reality that there is now effectively a moratorium on such sales as a result of my judgment. There are, however, two responses to that. The first is that, even though the Court might, in such a case, support a caveat placed by Mr Stafford on such land, as a matter of law, the Crown does not presently need to seek permission of the Court to sell. So what the Crown would be asking the Court to do were it to make an application remains unclear. And secondly, the arrangement now reflected in the Crown’s undertaking is intended to govern this kind of situation. That undertaking includes the costs arrangements noted below.
(c)On the basis that it needs to be Mr Stafford (rather than the Attorney- General) who is the applicant for any interim relief Mr Stafford has a concern both with his own potential liability for costs and also his own cost-recovery, which he says should be on a full recovery basis. While I understand that concern, I do not consider it appropriate or necessary to deal with that matter in advance; there are simply too many variables. Mr Stafford may, I think, take some comfort form the way I have dealt with costs in the present proceeding although as I have also made clear, it should be taken as any kind of binding precedent. And as noted earlier, the Crown has not only agreed to pay Mr Stafford’s filing fees but also that the costs of any unsuccessful interim application be
4 As I understand it, the land successfully caveated by Mr Stafford in 2012 is subject to leases of that kind.
reserved until the conclusion of the substantive proceeding. It is not possible to take the matter further than that, on an advance basis.
[25] Given these conclusions—and the fact that the Crown has now given an undertaking in the same form as the draft orders discussed in my earlier judgment— there is no need for formal findings or approval from the Court.
Conclusion: orders made
[26]Costs lie where they fall, as between all parties.
[27] My judgment of 2 March 2021 remains as it is. I decline to make any specific declarations consequent upon my conclusions in paragraphs [185](d) and (e), or to make the clarifications sought by ACC.
[28] The draft orders proposed by the Crown at the hearing—and subsequently recorded in the form of a formal undertaking—appropriately protect Mr Stafford’s interest in Crown-owned land within the Spain Award area.
Rebecca Ellis J
Solicitors:
Pitt & Moore, Nelson for Applicant
Crown Law, Wellington / Meredith Connell, Wellington for First Respondent Accident Compensation Corporation, Wellington for Second Respondent
Bell Gully, Wellington for Fourth and Sixth Respondents
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