Water Users' Group (NZ) Incorporated v Mahuta - [2022] NZHC 2858

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-756

[2022] NZHC 2858

UNDER the Declaratory Judgments Act 1908 and Part 30 of the High Court Rules 2016

BETWEEN

WATER USERS’ GROUP (NZ) INCORPORATED

Applicant

AND

HON NANAIA MAHUTA

First Respondent

ATTORNEY-GENERAL

Second Respondent

Hearing: On the papers

Appearances:

G Judd KC and G Illingworth KC for Applicant

M Colson KC and A Bowden for First and Second Respondents

Judgment:

2 November 2022

Reissued:

9 November 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] In my judgment of 9 September 2022, I dealt with various interlocutory applications by the applicant against the respondents (to whom I will refer collectively as “the Crown”).1 Amongst other things I dismissed an application for an order that the Crown discover Crown Law Office advice.

1 Water Users’ Group (NZ) Inc v Mahuta [2022] NZHC 2311.

WATER USERS’ GROUP (NZ) INCORPORATED v MAHUTA [2022] NZHC 2858 [2 November 2022]

[2] By notice of application dated 3 October 2022, the applicant seeks leave to appeal against that aspect of my judgment. The applicant requires leave by reason of s 56(3) of the Senior Courts Act 2016 which provides:

No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

[3] The application for leave is opposed, the Crown’s notice of opposition being dated 18 October 2022.

[4] Counsel for both the applicant and the Crown have filed brief submissions, respectively in support of and opposition to the application for leave.

[5]The principles that apply to applications under s 56(3) are well established:2

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[6]For the applicant, Mr Judd and Mr Illingworth emphasise these points:

(a)First, that there was no prospect in this case of an appeal being overtaken by the substantive hearing as the point concerning the

2 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9]–[14]; affirmed in Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

discoverability or otherwise of the Crown Law Office advice will be determined at this stage and not revisited at trial.

(b)Second, that if the issue that the applicant wants to argue before the Court of Appeal is not argued in the context of an appeal against my judgment, it will not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Water Users' Group (NZ) Incorporated v Mahuta and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 2858
Decision Date: 2 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Water Users' Group (NZ) Incorporated sought leave to appeal against an interlocutory decision that denied their application for the discovery of Crown Law Office advice. The Crown opposed the application, arguing that there was no arguable error and that the matter was not of sufficient importance to warrant appeal. The central issue was whether the court's application of the collateral waiver principle was erroneous, particularly in light of the Evidence Act 2006.

The applicant argued that the issue was of significant importance, as it would determine the admissibility of certain evidence and could potentially lead to the abandonment of their case if the advice supported the Crown's position. They further contended that the issue was of general importance and warranted separate consideration. Conversely, the Crown maintained that the collateral waiver principle was correctly applied and that there was no reasonable basis for the applicant's contention. The Crown also argued that the cost and delay of an appeal outweighed the potential benefits.

The court found that the issue was not as narrowly defined as the Crown suggested and that there was a lack of recent appellate authority on the point. While the court agreed with the Crown that the principle of collateral waiver was correctly applied, it recognised that the issue was one of general importance and lacked clear guidance. The court concluded that the issue was significant enough to warrant an appeal, as it would be irremediable if not addressed at the interlocutory stage. The court granted the applicant leave to appeal on this specific point.

The court reserved costs, expressing confidence that the matter would be resolved without further need for the court to address the issue.

Orders