Reid v Her Majesty's New Zealand Government and another [2008] NZCA 417 (13 October 2008)

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Reid v Her Majesty's New Zealand Government and another [2008] NZCA 417 (13 October 2008)

Last Updated: 28 October 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA345/2008

[2008] NZCA 417

BETWEEN JAMES ROBERT REID
Applicant

AND HER MAJESTY'S NEW ZEALAND GOVERNMENT
First Respondent

AND TARARUA DISTRICT COUNCIL
Second Respondent

Hearing: 7 October 2008

Court: O'Regan, Arnold and Baragwanath JJ

Counsel: Applicant in person
J A L Oliver for First Respondent
R P Brier for Second Respondent

Judgment: 13 October 2008 at 3 pm

JUDGMENT OF THE COURT

A The undertaking by the second respondent is noted.

2. The applicant’s application for interim injunction, which is treated as an appeal against the High Court’s refusal to issue such an injunction, is dismissed.

100. There is no order for costs.
     

REASONS OF THE COURT

(Given by O’Regan J)

“Application for Interim Injunction”

[1] An application filed by Mr Reid intituled “Application for Interim Injunction” came before us in the Miscellaneous Motions list on 7 October 2008. The application was filed by Mr Reid on his own behalf and its procedural status is irregular. It was filed under the number CA345/2008, which is an appeal against a decision of Miller J dealing with two interlocutory matters arising from judicial review proceedings commenced by Mr Reid: HC WN CIV 2008-485-327 21 May 2008. The judicial review claim was described in the following terms by Miller J:

[2] There is a single cause of action against all defendants. It is... an omnibus proceeding in that it attacks various transactions involving land said to possess reserve status. The land concerned is all in or around the town of Woodville, where Mr Reid lives. The claim relates broadly to the [Tararua District] Council’s management of such land and in particular leasing or licensing of it for grazing or other private purposes, the process followed for the stopping of two roads, the sale of those roads and other lands by the Council, the sale of a further piece of land alleged to be road, and the internal allocation by the Council of funds from a general reserve fund to a refurbishment project in Dannevirke.

[2] In his judgment, Miller J determined that the claim against “Her Majesty’s New Zealand Government” was untenable and made an order removing the Crown as a party from the claim under r 97 of the High Court Rules and striking out those paragraphs of the claim relating to the Crown under r 186 of the High Court Rules. In the same judgment, Miller J declined the TDC’s application to order security for costs. Appeal CA345/2008 is an appeal against the decision to remove the Crown as a party and strike out the claims against it.
[3] Subsequently, Mr Reid applied to the High Court for an interim injunction preventing the sale by the Tararua District Council (TDC) of a parcel of land near Danniverke known as the Tahoraiti Plantation Reserve (the property consists of 8.7145 hectares and its legal description is Part Section 15 Block 11 Tahoraiti Survey District). We will refer to this as the Tahoraiti Reserve. The Tahoraiti Reserve was not one of the areas of land to which the judicial review proceedings in the High Court related, so the application for interim injunction had no relevance to the judicial review claim. Notwithstanding this, the application for injunction was filed in the High Court under the same High Court matter number as that of the judicial review claim: CIV-2008-485-327.
[4] The background to the interim injunction application was that the TDC had received a report from one of its officers recommending the sale of the Tahoraiti Reserve land, and had resolved on 23 July 2008 to sell it. Upon the application for interim injunction being filed, the TDC through its counsel informed the Court that the question of the sale was to be reconsidered at a meeting of the TDC on 27 August 2008. He undertook on behalf of the TDC that it would not take steps to complete the sale of the land pending that review, and that if the TDC resolved at that meeting to continue with the sale it would give notice of 28 days to Mr Reid before implementing the sale process.
[5] The application for interim injunction was placed before Miller J for consideration. In light of the TDC’s undertaking, Miller J issued a minute in the following terms:

Application dismissed in the light of Council’s undertaking (Mr Stephens’ memorandum of 7 August refers).

Proceedings to be called in the Judge’s Chambers list on Monday 8 September at 10 am.

[6] As it transpired, the TDC passed a resolution at the meeting of 27 August 2008 in the following terms:

Tahoraiti Tea Plantation Reserve, Dannevirke

That in view of the uncertainty of the status of the land, the Council revoked the resolution made on 23 July, 2008 to sell the Tahoraiti Tea Plantation Reserve.

[7] Mr Reid then filed his “Application for Interim Injunction” dated 13 August 2008 in this Court. Counsel for the TDC suggested that this must amount to an appeal against the refusal by Miller J to grant in an interim injunction, that refusal being attributable to the TDC’s undertaking which rendered it redundant. We agree that that is the only possible procedural path by which the application could be placed before this Court.

Mr Reid’s concern

[8] Mr Reid maintained that an interim injunction was necessary to protect the Tahoraiti Reserve land from sale, but in a written memorandum of the Court, counsel for the TDC said that the revocation by the TDC of its resolution to sell the land meant that Mr Reid’s complaint no longer existed and the matter was now moot.
[9] At the hearing, Mr Reid provided to us a document said to be prepared by Councillor Claire Matthews of the TDC which sets out “Matters of interest from the August Council meetings”, one of which is:

The resolution to sell the Tahoraiti Tea Plantation Reserve was revoked, as some of the findings of the original report into the status of the land have been questioned by the Council’s legal advisor. The matter will be reconsidered when the investigation under the property’s status is complete.

[10] Mr Reid said that this indicated that the risk of the sale of the Tahoraiti Reserve land by the TDC still existed, and injunctive relief was still required.

Undertaking by TDC

[11] At the hearing on 7 October 2008, we asked counsel representing the TDC, Mr Brier, if the TDC was prepared to give an undertaking that, if it decided again to sell the Tahoraiti Reserve land, it would give notice to Mr Reid prior to any sale occurring, so that if he considered that there was any legal impediment to such a sale he would have time to raise his concerns with the TDC and, if necessary, seek injunctive relief. After taking instructions, Mr Brier reiterated the TDC’s view that no undertaking was necessary, but said that the TDC was prepared to give an undertaking in the following form:

If the Council were to pass a resolution to sell the land, it undertakes:

• To not take any steps consequent on that resolution for a 28 day period; and
• To notify Mr Reid promptly that the resolution has been passed.

[12] Mr Oliver appeared at the hearing on behalf of the Crown, although it has now been struck out of the substantive proceeding. He appeared to assist the Court and we express our appreciation for that.

Our assessment

[13] We are satisfied that this undertaking provides sufficient protection for any interest which Mr Reid wants to protect in relation to the Tahoraiti Reserve land. We accept the undertaking. Because it protects the position, we are satisfied that there is no need for an injunction. We therefore dismiss Mr Reid’s application.
[14] Mr Reid has no current legal proceedings in the High Court dealing with the land and if he wishes to pursue legal proceedings in relation to it he will either need to amend his current High Court pleadings or commence a new action in the High Court. However, given the TDC’s current position that the resolution to sell the Tahoraiti Reserve land has been rescinded and the TDC is investigating its legal status, there does not appear to be any current basis for any legal action on Mr Reid’s part in relation to it.

Costs

[15] We discussed the question of costs at the hearing. Mr Brier claimed costs on behalf of the TDC because he said the proceeding was unnecessary, given that the proposal to sell the land was moot. Mr Reid said it was still necessary because the TDC was reconsidering its position and there was no guarantee it would not reactivate the sales process. It is unfortunate that Mr Reid did not raise his concerns directly with the TDC and seek the undertaking which has now been offered by the TDC, rather than bringing the matter to this Court with all the attendant expense involved. In the circumstances we think the appropriate course is to let costs lie where they fall.

Solicitors:
Crown Law Office, Wellington for First Respondent
Simpson Grierson, Wellington for Second Respondent