Thompson v Invercargill City Council

[2020] NZHC 13

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2019-425-000144

[2020] NZHC 13

UNDER THE

Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review of a

decision not to notify and to grant a variation to resource consent conditions under ss 95- 95E and 127 Resource Management Act 1991

BETWEEN

LEWIS GAIRE HERDMAN THOMPSON

Applicant

AND

INVERCARGILL CITY COUNCIL

First Respondent

AND

HWCP MANAGEMENT LIMITED

Second Respondent

Hearing:

On the papers

Counsel:

S Gepp and F McDonald for the Applicant R Donnelly for the First Respondent

J Ormsby and T Brown for the Second Respondent

Judgment:

15 January 2020

JUDGMENT OF NATION J

[1]                 Mr Lewis Thompson has applied to judicially review decisions of the Invercargill City Council (the Council) not to notify an application by HWCP Management Ltd (HWCP) to vary the conditions of resource consents for the demolition, alteration and redevelopment of a block of the Invercargill central business district (the CBD), and to grant that application.

THOMPSON v INVERCARGILL CITY COUNCIL [2020] NZHC 13 [15 January 2020]

[2]                 On 27 December 2019, Mr Thompson applied for an order prohibiting HWCP from undertaking demolition work in reliance on the resource consent until the determination of his application for judicial review of decisions made by the Commissioner, on behalf of the Council, not to notify and to grant HWCP’s application to vary the condition in issue or, alternatively, compliance with the original condition that formed part of the resource consent.

[3]                 The application for interim relief was made without notice, however, service was effected on both respondents and the matter proceeded on a Pickwick basis. A telephone conference was convened on 30 December 2019 and counsel for all parties were provided with the opportunity to be heard.

[4]                 In a judgment of 31 December 2019, Mander J confirmed an on-notice hearing of Mr Thompson’s application would take place in Christchurch on 21 January 2020 before Gendall J.1 He issued orders as sought but only on an interim basis until the hearing on 21 January 2020.

[5]                 On 7 January 2020, the Otago Daily Times lodged an application with the Court to take photos at the scheduled hearing. The application was made using the form required by the In-Court Media Coverage Guidelines 2016. On that form, the Otago Daily Times state they want to cover the hearing about the injunction of the Invercargill CBD development and the photos could be used in publications of the Otago Daily Times, Southland Express and NZ Herald.

[6]                 The application is not opposed by Mr Thompson and the Council. It is opposed by HWCP.

[7]                 In its opposition, HWCP submits that the hearing on 21 January 2020 relates to an interlocutory application, being an application made during the course of the judicial review proceedings on an issue that has arisen during the course of the proceedings and not the hearing of the judicial review claim itself. It is not a hearing of the substantive proceedings.

1      Thompson v Invercargill City Council [2019] NZHC 3506.

[8]                 Rule 7.34 High Court Rules 2016 states that an interlocutory application must be heard in chambers unless a Judge otherwise directs.

[9]                 Through reference to the judgment in Smith v Claims Resolution Service Ltd, HWCP refer to guideline 5(4) of the In-Court Media Coverage Guidelines.2 It provides:

While the Judge is sitting in court for chambers or in closed court, no electronic communication may take place.

[10]              Provisions in the schedules to the Guidelines also prohibit the filming, recording of sound and taking of photographs of matters heard in chambers.3

[11]              HWCP submits that the standard position should prevail and the application for media coverage should thus be considered on the basis the hearing will be in chambers. HWCP submits there should be no order otherwise. HWCP says the hearing is over just interim orders and are against HWCP, not the Council which is the party that exercised the statutory power that is being challenged in the judicial review proceedings. HWCP also says that, at the hearing, HWCP will be producing commercially sensitive and confidential information in support of its position, information that ultimately may not be before the public in the substantive hearing of the proceedings. Consistent with its position when the matter was first considered by Mander J at the telephone conference on 30 December 2019, HWCP would also be seeking suppression and redaction of confidential and commercially sensitive information from the public judgment of the Court following the hearing. HWCP submits that, with the Court to issue a judgment following the 21 January 2020 hearing, the issuing of that judgment will satisfy the principle of open justice in the context of an interlocutory hearing.

2      Smith v Claims Resolution Service Ltd [2018] NZHC 3180.

3      Schedule 1, cl 4; sch 2, cl 3; sch 3, cl 1.

Analysis

[12]              A hearing in chambers is a hearing that takes place in circumstances in which the general public is not admitted, except with the leave of the Judge.4 No party has suggested the general public should be admitted to the scheduled hearing.

[13]              The High Court Rules recognise the right of the media to be present during a hearing in chambers unless the Court orders otherwise. There is no suggestion that there should be such an exclusion at the hearing scheduled for 21 January 2020. Their right to attend is consistent with the interests of open justice.

[14]              Rule 7.35 provides that the particulars of a hearing in chambers of an interlocutory application and the decision, including reasons, may be published unless a Judge or Registrar directs otherwise. In that way, the principle of open justice can be recognised with the hearing proceeding in chambers as it will be.

[15]              Given matters referred to by Mander J in his judgment of 31 December 2019, it does seem likely that commercially sensitive and confidential matters will likely be referred to in the course of submissions or in evidence at the hearing on 21 January 2020. It will be for the Judge presiding at that hearing to determine whether there should be suppression orders or redactions in any judgment following that hearing. It is quite possible such orders will be made as they were in Mander J’s judgment of 31 December 2019.

[16]              The current media application is just to take photographs at the hearing. I do not consider that the prohibition against the taking of photographs will materially limit the ability of the media to report on what happens at the hearing in a way that might otherwise be permitted.

[17]              As noted by Williams J in Sagapolu v Commonwealth Securities Ltd, the High Court Rules indicate that the hearing of interlocutory applications should not be publicly broadcast unless there are good reasons for doing so.5

4      High Court Rules 2016, r 1.3.

5      Sagapolu v Commonwealth Securities Ltd (2002) 16 PRNZ 191 at [5].

[18]              In its application, the Otago Daily Times confirms it will abide by the In-Court Media Coverage Guidelines. As previously referred to, guideline 5(4) provides that no electronic communication may take place while a Judge is sitting in Court for chambers and the Guidelines prohibit the taking of photographs of matters heard in chambers.

Conclusion

[19]              Against that background, the application by the Otago Daily Times to take photographs at the hearing on 21 January 2020 is declined.

Solicitors:

Hamish Fletcher Lawyers, Nelson Preston Russell Law, Invercargill

Saunders Robinson Brown, Christchurch.

This judgment was delivered by me on 15 January 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar / Deputy Registrar 15 January 2020.