Urban Auckland, the Socirty for the Protection of Auckland City and Waterfront Inc v Auckland Council

[2015] NZHC 1183

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000719 [2015] NZHC 1183

BETWEEN

URBAN AUCKLAND, THE SOCIETY

FOR THE PROTECTION OF AUCKLAND CITY AND WATERFRONT INC Applicant

AND

AUCKLAND COUNCIL First Respondent

PORTS OF AUCKLAND LIMITED Second Respondent

Hearing:	28 May 2015 (by teleconference)
Counsel:	M S R Palmer QC for Applicant A M Adams and N Whittington for First Respondent M R Crotty for Second Respondent H R Coleman for Kawau Island Action Incorporated
Judgment:	28 May 2015
Reasons:	28 May 2015

JUDGMENT OF VENNING J DECLINING APPLICATION FOR JOINDER

This judgment was delivered by me on 28 May 2015 at 5.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland Madison Hardy, Auckland Russell McVeagh, Auckland

Copy to:            Dr M S R Palmer QC, Wellington

A R Galbraith QC, Auckland
J A Farmer QC, Auckland

K R M Littlejohn, Auckland

H R Coleman

URBAN AUCKLAND, THE SOCIETY FOR THE PROTECTION OF AUCKLAND CITY AND WATERFRONT INC v AUCKLAND COUNCIL [2015] NZHC 1183 [28 May 2015]

[1]      The  application  by  Urban  Auckland,  the  Society  for  the  Protection  of Auckland City and  Waterfront  Inc (Urban  Auckland) for judicial  review of the Council’s decision granting consent to Ports of Auckland Limited (POAL) to extend the Bledisloe Wharf is for a substantive hearing over three days commencing Tuesday, 3 June 2015.

[2]      The Kawau Island Action Inc Society (KIA) seeks to be joined to the proceedings.    KIA  has  as  its  object:    “To  oppose commercial  and  unnecessary private development within the Coastal Marine Area and Coastal Environment of Auckland City in particular, including Waiheke Waitemata Harbour and Kawau Island”.  Mr Coleman, the chair of KIA seeks leave to be heard and to represent KIA at the proceedings.

[3]      Urban Auckland abides the decision of the Court.  KIA and Mr Coleman’s

application are opposed by the Council and POAL.

[4]      I convened a  telephone conference to deal with the application.   At the conclusion of the conference, after considering the material filed by Mr Coleman on behalf of KIA and hearing from counsel and Mr Coleman, I declined the application for joinder with reasons to follow.  These are the reasons.

[5]      Although the application was styled as an application for an order permitting KIA to join the proceedings Mr Coleman was unable to identify the legal basis for the application other than to submit generally that it was in the interests of justice for KIA to be joined.

[6]      In  Wellington  International  Airport  v  The  Commerce  Commission  Ellen France J discussed the relevant legal principles of joinder to a judicial review proceeding.1    Her Honour held that the issue was whether the rights of the parties seeking to be joined were affected with the Court’s object being to avoid injustice by

excluding them.  In that case Air New Zealand and Qantas were both joined to the

1      Wellington International Airport v The Commerce Commission CP151/02, 19 July 2002 (HC).

process.   By contrast, the rules of KIA make it clear that it has no commercial or reputational interest in the outcome of the review.

[7]      I note that in Kellian v Minister of Fisheries & Ors Doogue J refused joinder on the basis the parties did not have an interest in the proceeding greater than other members of the commercial fishing industry and were not necessarily parties to the proceeding.2

[8]      KIA does not propose to file any evidence other than Mr Coleman’s affidavit and proposes to limit its involvement to submissions.  KIA does not intend to file a statement of claim.   As such the application is more properly regarded as an application for leave to intervene.

[9]      In C v Accident Compensation Corporation & Anor the Court of Appeal confirmed the principles to apply when considering whether to grant leave to intervene are well established:3

…

(a)       the power is broad in nature, but should be exercised with restraint to avoid the risk of expanding issues, elongation of hearings and increasing the costs of litigation;7

(b)       in an appeal involving issues of general and wide importance, the Court may grant leave when satisfied that it would be assisted by submissions from the intervener;8  and

(c)       the power may be exercised more liberally in appeals involving the Court’s  special jurisdiction  under  legislation  such  as the Employment Relations Act 2000 and the Rating Powers Act 1988.

(footnotes omitted).

[10]     After hearing from Mr Coleman I am satisfied that to grant leave for KIA to intervene  would  unnecessarily  lengthen  the  hearing  and  increase  the  costs  of litigation to the other parties to the proceeding. In that context it is relevant that KIA

is apparently in no position to fund any award of costs that might be made against it.

2      Kellian v Minister of Fisheries & Ors (2002) 16 PRNZ 223.

3      C v Accident Compensation Corporation & Anor [2013] NZCA 34 at [12].

incorporated with a view to seek to join or intervene in these proceedings.

[11]     Further,  while the issues  involved  in the review proceedings  brought  by Urban  Auckland  raise  issues  of  importance  to  the  people  and  community  of Auckland generally, having heard from Mr Coleman and considered the submissions he proposes to make, I am satisfied the Court will not be assisted by the submissions he intends to advance.

[12]     While I accept Mr Coleman and KIA are genuinely interested in the outcome of the judicial review and the proposed wharf extension, they have no greater interest than any other member of the public.

[13]     Next, to the extent that there is anything of substance in the submissions that Mr Coleman proposes to advance I am satisfied the issues will be addressed by Urban Auckland in its submissions.  The rather emotive arguments raised by KIA in its submission do not appear to add anything to the arguments that will be advanced by Urban Auckland’s counsel.

[14]     The issues before the Court involve relatively complex factual issues and difficult legal argument.   The Court will not be assisted by submissions from Mr Coleman on the law.  Mr Coleman is not legally qualified, although I acknowledge he has taken a number of cases before the Courts at various levels.

[15]     While I do not place much weight on the fact KIA’s involvement would require a response from the respondents or that Mr Coleman would require leave to present submissions on behalf of KIA, (it being an incorporated society), they are also further relevant considerations that count against the grant of leave.

[16]     The short point is that nothing that Mr Coleman raises suggests the interests of justice will be served by joining KIA to the proceedings.

Result

[17]     The application for leave to join or intervene in the proceedings is dismissed.

Venning J