Te Runanga O Ngati Awa v Attorney-General HC Wellington CIV 2006-485-1025

[2007] NZHC 2098

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2006-485-1025

UNDER  Judicature Amendment Act 1972

IN THE MATTER OF     the Public Works Act 1981

BETWEEN  TE RUNANGA O NGATI AWA Plaintiff

ANDATTORNEY-GENERAL First Defendant

ANDWHAKATANE DISTRICT COUNCIL Second Defendant

Hearing:         5 September 2007

Counsel:         J S Kos QC for Plaintiff

No Appearance for First Defendant
D J Neutze for Second Defendant

Judgment:      5 September 2007

ORAL JUDGMENT OF RANDERSON J

Solicitors:           Hornabrook Macdonald Lawyers, PO Box 91845, Auckland

Crown Law Office, PO Box 2858, Wellington

Brookfields, PO Box 240, Auckland

Counsel:            J S Kos QC, Stout Street Chambers, Wellington

TE RUNANGA O NGATI AWA V ATTORNEY-GENERAL AND ANOR HC WN CIV 2006-485-1025 5

September 2007

[1]      The  plaintiff  seeks  an  order  for  further  and  better  discovery  against  the second defendant in relation to this proceeding for judicial review.  The plaintiff says there have been difficulties over the discovery process following orders made by Miller J on 28 March 2007.

[2]      The plaintiff also seeks an order that, in the circumstances, an independent barrister be appointed to report to the Court and an order that the second defendant furnish all reasonable assistance to the barrister so appointed.   It is proposed the reasonable costs of the barrister be paid by the plaintiff in the first instance, subject to the outcome of the proceedings.

The Background in Brief

[3]      There has been a long history of dispute between the plaintiff, the Crown and the Whakatane District  Council in relation to a property known as the Army Hall in Whakatane.  There has already been one set of judicial review proceedings which culminated with a judgment being given by Goddard J  on 30 September 2003. Those proceedings determined that the Council was not entitled under s 40 of the Public Works Act 1981 to have the subject land offered back.

[4]      Since then the plaintiff alleges there has been a change of heart on the part of the Council in that it is now seeking to have the land transferred to it under s 50 of the Public Works Act on the basis that it requires the land for another public work. The  Council  maintains  it  has  always  intended  to  use  the  land  for  harbour development purposes along with other land on the waterfront at Whakatane.

[5]      The pleadings disclose a number of causes of action but those relevant for present purposes include an alleged error of law and a legitimate expectation on the part of the plaintiff that the Council would not seek the transfer to it of the Army Hall land under s 50.

[6]      Miller  J  dealt  with  these  issues  in  his  decision  of  28  March  2007  and determined that limited discovery should be made.  The issue at that time related to the plaintiff’s application to obtain discovery of internal Council communications prior to 30 September 2003.   Miller J ordered that disclosure ought to extend to communications of that nature “insofar as those documents tend to establish the Council’s purpose in wanting the land, whether under s 40 or s 50”.  The Judge made it clear that he had confined the order in that way because he envisaged a somewhat narrower scope of disclosure than that which might be suggested by the traditional Peruvian Guano test.  The Judge observed at [6] that judicial review was a relatively simple, untechnical and prompt procedure.   He noted Judges were responsible for narrowing issues and supervising proceedings to ensure material before the Court was both relevant and necessary.   The Peruvian Guano “train of inquiry” test had little or no application in proceedings of this kind.

The Process after Miller J’s Order

[7]      The application by the plaintiff is brought under R 258 (alleging a failure to comply with Miller J’s order); Rule 300 (seeking an order for particular discovery); and reliance is also placed on the Court’s inherent jurisdiction.   The plaintiff’s concerns have been detailed in correspondence and in an affidavit filed on behalf of the plaintiff.  It is clear there have been some difficulties in discovery of documents and further documents have been disclosed in response to concerns raised by the plaintiff’s solicitors as to the adequacy of discovery.

[8]      I observe that this is not unusual and that in this case the parties were content to accept disclosure on an informal basis without any requirement for sworn lists of documents to be filed.  There has been an affidavit filed by a Mr Kane who is the Council’s officer with responsibility for property matters including the file relating to the Army Hall land.  There has also been an affidavit filed by Mr Moodley, the solicitor  who  has  had  responsibility  for  discovery  in  the  firm  of  solicitors representing the Council.

[9]      The process has broadly involved Mr Kane making available to Mr Moodley the  Council’s  principal  file  (which  I  will  describe  as  the  Army  Hall  file). Mr Moodley has himself examined the documents of these files and discovered (on behalf  of  the  Council)  those  which  he  considered  were  those  required  to  be discovered by the order of Miller J.

[10]     It now appears, as a result of the filing of an affidavit by Mr Kane that there are a number of other files which the Council has which are of a general nature but which may contain some material which may have a bearing on the issues and which relate to the order made by Miller J.  These additional files are described in para 19 of Mr Kane’s affidavit of 21 August 2007.

[11]     Notwithstanding the view of the Council that some of those documents have only peripheral relevance, documents from those other files have also been made available.   Mr Kane has provided what he described as a “Certification as to Discovery” in paras 28 to 31 of his affidavit:

28.  I am aware of the second defendant’s obligations under the order for discovery made on 27 March 2007 and understand those obligations. Specifically, I am aware that the second defendant must disclose documents in compliance with the order of Miller J dated 28 March

2007, whether or not they strengthen or weaken the second defendant’s case.

29.  In order to fulfil the second defendant’s obligations under the discovery order, I have diligently searched for all documents required to be discovered  under  the  order,  and  I  have  also  taken  the  following particular steps:

(a)   I have asked the Chief Executive of the second defendant, the Mayor of Whakatane, and staff members of the second defendant who have worked on matters involving the Army Hall land and the Whakatane harbour on behalf of the second defendant to identify any particular documents or files which may be relevant to this matter.

(b)I  have  searched  the  second  defendant’s  files  1.2.5  “Mayor’s Reports and Correspondence”; 13.1.4 “Port Asset Management/Development Plan”; 13.1.7 “Harbour – General Correspondence” for “internal Council communications before 30

September 2003” which related to the Army Hall land.

30.  I verify therefore that the documents which the second defendant is required to discover have been discovered by the second defendant’s solicitors to the plaintiff’s solicitors.

Discussion

[12]     During  the  course  of  argument  the  concerns  of  the  plaintiff  have  been narrowed.  In particular, Mr Kos now accepts on behalf of the plaintiff that there has been sufficient disclosure of any relevant email traffic in relation to matters at issue or at least that it is not realistic to expect that any further material is likely to emerge from that source.

[13]     Secondly, at my suggestion the Council has agreed to make available the files which comprise the Army Hall file as I have described it.  The plaintiff is at liberty to peruse that material, through its solicitors or counsel, subject to any claim for privilege.

[14]     Mr Kos has sought to have that opportunity in respect of the other files identified in para 19 of Mr Kane’s affidavit.   I am not prepared to order or invite counsel to agree to this last step.  It must be appreciated that Miller J’s order was confined for the reasons he set out in his decision. I am not persuaded that it has been demonstrated there is likely to be any further material on those additional files which could assist.  That is with one exception.  Mr Neutze has agreed that Mr Kane will be asked to examine those additional files once again, in case there are any external rather than internal documents which would fall within the category of documents defined by Miller J on 26 June 2006.   Mr Neutze points out that Mr Kane may already have done so and if he has, then he need only confirm that this is so. Technically, external documents are outside the scope of the current application.

[15]     It needs to be kept in mind that prima facie a sworn list of documents or, in this case, affidavits filed separately to the same effect, is conclusive unless it is demonstrated that there are or may be other documents relevant to the matter at issue: AMP v Architectural Windows Ltd [1986] 2 NZLR 190.

[16]     In  this  case  it  has  not  been  demonstrated  that  there  are  any  specific documents which may be still in the Council’s possession or control and which have not been discovered.  Rather, the case is put on the basis that Mr Kane may have taken too narrow a view of discovery at an earlier stage and that the Court should

conclude that, in those circumstances, there may be additional documents which should be discovered if a wider or more appropriate view of their relevance was taken.

[17]     This argument was principally advanced on the basis that there has been rather late discovery of an internal memorandum dated 22 February 2001 (exhibit “J” to the affidavit of Mr McDonald of 23 July 2007).  Mr Moodley has explained that he initially took the view that this document was not relevant in terms of the order made by Miller J in March 2007 but, reviewed that, and later discovered it.

[18]     There is no evidence that there may be any other documents in that category. In any event, it came from the Army Hall file which the Council’s solicitors have now agreed to make available for the plaintiff’s own inspection.

Conclusion

[19]     I am satisfied there is no evidence of failure to comply with Miller J’s order of 28 March 2007 in terms of R 258.  I am not persuaded that it is necessary to make any order for particular discovery in terms of R 300.   I also record that there is nothing to suggest bad faith or improper conduct on the part of Mr Kane.   Nor is there anything to suggest that Mr Moodley has not complied with his obligation under R 296 High Court Rules, which is to ensure that the relevant party understands the discovery obligations and faithfully fulfils those obligations.

[20]     This is a case where discovery has evolved on a progressive basis in response to concerns being raised by the plaintiff.  But, viewed broadly, the position has now been reached where, subject to the Council’s agreement to make further inquiries and to permit inspection as noted, discovery obligations have been met.

Fixture and Timetable

[21]     I have discussed with counsel a fixture for this matter.  The Court has three days available on 5 May 2008.  Present counsel have confirmed that a fixture on that

date  is  appropriate.    I am  conscious  of  the  fact  that  the  first  defendant  is  not represented today (because this dispute did not involve him), but I would not anticipate there would be any difficulty in the Crown being able to provide counsel to proceed on that date.

[22]     Accordingly I make a fixture for the hearing of this matter substantively for three days commencing 5 May 2008.   Counsel have advised they will confer and prepare a timetable for affidavits, any amended pleadings, bundles of documents and any other steps that are needed to be taken pre-trial.  A joint memorandum is to be filed  by  Friday  21 September  2007  detailing  the  timetable  orders  agreed  upon. Mr Kos is to take responsibility for arranging that memorandum.  If there are matters of dispute then separate memoranda may be filed by the same date.

[23]     On  the  basis  that  the  application  today  has  been  resolved  with  the  co- operation of the Council and its lawyers, I will formally dismiss the application with costs reserved.  Leave is reserved to any party to apply further on those issues or any

other that may arise prior to trial.

A P Randerson, J Chief High Court Judge