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

[2007] NZHC 1704

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2006-485-001025

UNDER  the 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:         28 March 2007

Appearances: J S Kos & K Grau for Plaintiff

No appearance for First Defendant
P Moodley for Second Defendant

Judgment:      28 March 2007

ORAL JUDGMENT OF MILLER J

[1]      This is an application for particular discovery in judicial review.

[2]      For my purposes the facts may be shortly stated.   The Crown held a site known as the Army Hall property under the Public Works Act.  It is situated on the riverfront at Whakatane.  The Crown agreed in treaty settlement negotiations with Ngati Awa to transfer the land to Ngati Awa subject to its obligations under the Public Works Act 1981.  The Crown took the view that it was required to offer the land to the second defendant under s.40 of that Act.

[3]      Ngati Awa challenged the transfer by judicial review.  The Council took the position that it wanted the land under s.40 and did not require it for another public

TE RUNANGA O NGATI AWA V ATTORNEY-GENERAL AND ANOR HC WN CIV 2006-485-001025  28

March 2007

work under s.50 of that Act.  Ngati Awa maintains that the Council took that stance because it wanted and still wants the land for commercial purposes.

[4]      In a judgment of 30 September 2003, Goddard J held that the Council was not entitled to an offer back under s.40, but found that the Council is entitled to have consideration given to a transfer under s.50, if it requires the land for another public work.   Within a short period the Council resolved that it did require the land for another  public  work,  and  this  proceeding  is  brought  to  challenge  the  Crown’s decision to transfer the land to the Council under s.50.

[5]      Discovery was ordered by consent, on the basis that counsel were to settle its scope. They have been unable to do so. The discovery now sought concerns internal Council communications before 30 September 2003  that  relate  to  the  Council’s proposed use of the land, its decision to pursue a s.40 offer-back, and its decision to seek (or not seek) a transfer under s.50.  Discovery has already been made of internal documents after that date, and external communications before that date.

[6]      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.

[7]      Turning  to  the  question  of  relevance,  Ngati  Awa  pleads  a  legitimate expectation that the Army Hall land would be transferred to it, in part because the Council had consistently stated publicly, and had submitted to the High Court, that it did not want the land transferred to it under s.50 but rather considered that it might be  used  as  part  of  a  waterfront  development.    It  is  said  to  have  made  these

representations   in   an   affidavit   in   the   judicial   review   proceeding   and   in correspondence to Phillips Fox (acting for the Crown) and the Crown Law office. The facts alleged are admitted.

[8]      The  Council  says that  legitimate  expectation  must  be  founded  on  public representations, and that those representations are admitted; thus the Council’s internal documents are not relevant.  Mr Kos’ answer is that there can on occasions be a satisfactory reason for an administrative body not to act in accordance with an assurance given.   Thus, assuming the Court finds that the legitimate expectation exists, it might deny relief in the exercise of its discretion.  Discovery is said to be relevant to that possibility.  He also maintains that discovery is relevant because the concept of a legitimate expectation is very much concerned with upholding fair practice ie it is concerned not merely with the question whether there has been an actual representation or specific reliance, but also with the actions of the administrative body.  The material sought is further said to be relevant to the context in which the representations had been made.

[9]      I prefer to approach the matter by observing that there are two public interests at work in a legitimate expectation claim.   The first is that in holding public authorities to promises made, in the interests of proper public administration.  The second is that in allowing public authorities to change policy from time to time when it is thought appropriate to do so.   If there are good reasons, the Court may deny relief in the exercise of its discretion:  New Zealand Association for Migration and Investments Inc v Attorney-General [2006] NZAR 45. The Council’s reasons for changing tack after 30 September are relevant to the second of these interests.

[10]     In  this  case,  the  Council’s  primary  position  will  be  that  no  legitimate expectation arose.  But it will not disclaim the defence that if there was a legitimate expectation, the Council was entitled to change its mind.

[11]     The pleading also puts in issue the question whether the Council’s purpose under s.50 is genuine.  It is not framed as a claim that the Council has acted for an improper purpose, but that is pleaded as part of the legitimate expectation claim. The documents sought are relevant to that allegation.

[12]     For completeness, I record that there is a second and private law cause of action which pleads breaches of deeds of settlement between Ngati Awa and the Crown.  It is said that there are implied terms the gist of which is that the Crown would give effect so far as possible to the aspirations of Ngati Awa to repurchase confiscated land, including the Army Hall land.  The Crown is said to have breached the implied terms by failing to have regard to the fact that the purpose for which the Council wanted the land did not amount to a public work.   Mr Kos however, disclaimed reliance on that for present purposes.

[13]     There is no suggestion that the discovery sought will be extensive or unduly burdensome.  In the circumstances, I am satisfied that discovery ought to extend to internal Council communications before 30 September 2003, insofar as those documents tend to establish the Council’s purpose in wanting the land, whether under s.40 or s.50.  I have confined the order to documents that tend to establish the Council’s purpose to make it clear that I envisage a somewhat narrower scope of discovery than that which might be suggested by the Peruvian Guano test.  There will  be  leave  to  apply  in  the  event  that  there  is  a  dispute  about  the  scope  of discovery.

[14]     Costs are reserved.

F Miller J

Solicitors:

Hornabrook Macdonald Lawyers, Auckland for Plaintiff

Brookfields, Auckland & Manukau for Second Defendant