Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council [2015] NZCA 328 (24 July 2015)

Last Updated: 31 July 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA331/2014 [2015] NZCA 328
BETWEEN	MANGAWHAI RATEPAYERS AND RESIDENTS ASSOCIATION INC Appellant
AND	KAIPARA DISTRICT COUNCIL Respondent

Court:	White, Miller and Winkelmann JJ
Counsel:	MSR Palmer QC for Appellant D J Goddard QC for Respondent P Rishworth QC for Attorney-General
Judgment: (On the papers)	24 July 2015 at 11.00 am

JUDGMENT OF THE COURT
(On Application to Intervene)

The Attorney-General’s application for intervention is granted on terms.
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REASONS OF THE COURT

(Given by Miller J)

[1] This appeal is for hearing on 25 and 26 August 2015. The Attorney-General was permitted to intervene in the High Court and seeks belatedly to do so again on the appeal.^[1]
[2] The Attorney asserts an interest on behalf of the Crown in some of the issues: whether the Kaipara District Council (Validation of Rates and Other Matters) Act 2013 is prima facie inconsistent with s 27(2) of the New Zealand Bill of Rights Act 1990 (NZBORA) or otherwise contrary to the rule of law; if so, whether the inconsistency is a justified limit under NZBORA; whether jurisdiction to declare that legislation is NZBORA-inconsistent exists and should be exercised; whether the District Council’s decision to promote the legislation is amenable to judicial review having regard to the subsequent enactment and the principle of Parliamentary sovereignty; and whether damages are an available remedy in such a case.
[3] The appellant accepts that the Crown has an interest in these matters but argues that in the circumstances of this case its interest is a limited one, that counsel for the other parties are entirely capable of placing all relevant arguments before the Court, and that the Attorney’s intervention will increase the burden of the litigation for the appellant, which is a community organisation funded by donations. The respondent consents to the Attorney’s application.
[4] All counsel appear to agree that if the Attorney is to intervene it will be on the basis that written submissions are filed in a timely manner so the parties are not prejudiced by his delay, that the Attorney may appear by counsel at the hearing but will be heard orally only insofar as the Court wishes to hear from him at that point, that the time allocated is only just enough but the fixture need not be extended, and that whatever the result the Attorney will not seek costs.
[5] The Court may permit intervention but exercises the jurisdiction with restraint.^[2] The questions are whether the Court would be assisted by additional submissions in a case of general principle and wide importance, whether the intervener possesses any relevant expertise or unique perspective, and how and to what extent intervention may affect the parties’ appeal.^[3]
[6] We think that intervention is warranted here. The Attorney is not interested in all of the issues that may arise on the appeal, but those listed above are matters of high principle. We think the Court is likely to benefit, as the High Court evidently did, from the Crown’s perspective notwithstanding the expertise of leading counsel for the parties, and intervention can be permitted on terms that should add little, if anything, to the appellant’s burden.
[7] The Attorney will have leave to intervene accordingly. This order is made on the following conditions:

(1) There will be no amendment to the agreed timetable for submissions as between the parties;

(2) The Attorney is to file written submissions by 11 August 2015;

(3) The Attorney may appear by counsel at the hearing, but will be called upon only if the Court wishes to hear from counsel and there is time available;

(4) The Attorney will not seek costs against either party.



Solicitors:
Kennelly Law, Auckland for Appellant
Simpson Grierson, Wellington for Respondent
Crown Law Office, Wellington for Attorney-General

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^[1] The appeal was filed on 20 June 2014.

^[2] Drew v Attorney-General [2001] NZCA 107; [2001] 2 NZLR 428 (CA) at [11] and New Zealand Fire Services Commission v Ivamy (1995) 8 PRNZ 632 (CA) at 633.

^[3] Copyright Licensing Ltd v The University of Auckland [2015] NZCA 123 at [46].