Devonport Heritage Incorporated and others v Environment Court and others HC AK CIV 2009-404-3206 [2009] NZHC 2300 (15 December 2009)

Last Updated: 10 January 2010

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

_{CIV 2009-404-3206}

BETWEEN DEVONPORT HERITAGE

INCORPORATED First Plaintiff

AND MASONIC FRIENDLY SOCIETY INCORPORATED

Second Plaintiff

AND NEW ZEALAND HISTORIC PLACES TRUST (POUHERE TAONGA)

Third Plaintiff

AND THE ENVIRONMENT COURT First Defendant

AND NORTH SHORE CITY COUNCIL Second Defendant

AND REDBACK DEVELOP LIMITED Third Defendant

Hearing: 15 December 2009

Counsel: PT Cavanagh QC for Plaintiffs

No appearance for the First Defendant

WS Loutit and DK Hartley for Second Defendant

ME Casey QC and BC Parkinson for Third Respondent

Judgment: 15 December 2009

_{ORAL JUDGMENT OF RODNEY HANSEN J}

Solicitors: Alan Jones Law Partnership, P O Box 32-249, Devonport 0744 for Plaintiffs

Crown Law, P O Box 2858, Wellington 6140, for First and Second Defendants

Stafford Klaassen, P O Box 29185, Epsom, Auckland for Third Defendant

DEVONPORT HERITAGE INCORPORATED AND ORS V THE ENVIRONMENT COURT AND ORS HC

AK CIV 2009-404-3206 15 December 2009

Introduction

[1] The plaintiffs have appealed, or are parties to an appeal, to the Environment

Court against resource consents granted by North Shore City Council (the Council)

to Redback Develop Limited (Redback) to redevelop a site in Devonport occupied

by the Masonic Tavern. The plaintiffs say the consent will effectively permit the demolition of the main structure of the hotel.

[2] The plaintiffs had proposed to call evidence of an archaeological assessment

of the site. In response to an application before the hearing by Redback the presiding Judge, Principal Environment Court Judge Thompson, ruled that archaeological evidence should be excluded. In separate proceedings the plaintiffs have appealed against that decision and against Judge Thompson’s subsequent refusal to stay the hearing pending determination of the appeal.

[3] Before the hearing of the appeal to the Environment Court began yesterday, Mr Cavanagh applied to Judge Thompson to recuse himself on the ground of bias.

In an oral decision delivered after hearing argument, the Judge declined the application. He agreed to adjourn the hearing until 12.00 noon today to enable the plaintiffs to seek an urgent review of his decision.

[4] The plaintiffs seek an order that the hearing of the appeal be allocated to a Judge other than Judge Thompson and that the appeal be stayed until the substantive issue in this proceeding has finally been resolved. Counsel for Redback appear on a Pickwick basis, having regard to the urgency of the matter, to oppose the application. Counsel for the Council also appear on a Pickwick basis and abide the decision of the Court. Counsel for the Environment Court has filed a memorandum advising that it also would abide the decision of the Court and seeks leave to be excused from further attendance in the matter.

Grounds of claim

[5] In their statement of claim, the plaintiffs say that as a result of the two determinations of Judge Thompson, now the subject of appeal, they apprehend that

he has developed an unconscious bias towards the case they wish to bring before the

Court in that:

1. He has persistently rejected the submissions of their counsel to the effect that evidence as to archaeological assessments is fundamental

to an appropriate evaluation of historic heritage; and

b) That evidence is relevant and there is no lawful basis for rejecting it.

The plaintiffs refer to ss 2 and6(f) of the Resource Management Act

1991 and to s 7 of the Evidence Act 2006.

[6] The evidence effectively excluded as a result of the initial ruling of Judge Thompson is of three expert witnesses - two archaeologists and a standing building expert. The plaintiffs say that the exclusion of the evidence will seriously compromise their ability to present their case. They say the evidence is relevant to historic heritage concerns which are specifically covered in the notices of appeal in the Environment Court. Historic heritage is defined in s 2 of the Resource Management Act as:

(a) ... those natural and physical resources that contribute to an understanding and appreciation of New Zealand’s history and cultures, deriving from any of the following qualities:

(i) Archaeological ...

[7] Other experts whom the plaintiffs intend to call explain in supporting affidavits how they have relied on the evidence of the archaeological experts to enable them to reach an integrated assessment of the significance of the historic heritage loss arising from the proposed demolition of the building. The plaintiffs’ case is that their evidence will be seriously undermined by the exclusion of the evidence of the archaeological experts, as will the Court’s ability to assess the

historic heritage values of the site and, as a result, the central issue of the proposal’s effect on the environment.

[8] In his forthright submissions to the Judge, repeated before me, Mr Cavanagh says quite simply, that the initial decision of Judge Thompson was wrong. He says it excluded relevant evidence, contrary to s 7 of the Evidence Act 2006; it seriously damages the appellant’s case; and it denies the Court the ability to effectively determine the appeal.

[9] Mr Cavanagh submits that in the particular circumstances of this case the Judge’s adverse prior rulings are sufficient to lead a fair-minded lay observer to reasonably apprehend that he may not bring an impartial mind to the resolution of the case because, to adopt the words of Hammond J in Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 at [101], the rulings are “so patently erroneous

or so disproportionate as to suggest that something untoward must have motivated

[them]”. The reasons why the plaintiffs claim the decisions are patently erroneous and disproportionate are summarised in para 27 of the statement of claim as:

a) The evidence falls within the scope of the appeal;

2. The Judge failed to accept that having regard to the relevant provisions of the Resource Management Act, the evidence is relevant

to the Court’s assessment of historic heritage values and essential to enable the Court to fulfil its function;

100. The Judge failed to recognise that the applicant, in its own evidence, had placed an historical assessment of the site at issue;
     

d) The Judge failed to appreciate that, by virtue of s 7 of the Evidence

Act, there is no basis to exclude the evidence; and

5. The Judge acted inappropriately and unlawfully in excluding the evidence without having read it.

Test of apparent bias

[10] The test of apparent bias articulated in Muir was approved by the Supreme Court in Saxmere Company Limited & ors v Wool Board Disestablishment Company Limited [2009] NZSC 72 at [3]. In order to make an assessment of whether or not bias may be apparent, there must first be a factual enquiry to establish the actual circumstances which have a direct bearing on the suggestion that the Judge was or may be seen to be biased. In Muir at [62] it was said that this factual enquiry should

be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air.

[11] The question of the circumstances in which prior rulings may provide evidence of bias was directly addressed in Muir. While it was accepted that there are occasions on which a Judge’s prior rulings might lead a reasonable person to question whether he or she would remain impartial in any subsequent proceedings, that was said to be relevant only in the rarest of circumstances. The reasons are outlined in paras [99] and [100]. A pre-trial ruling may, as I have already mentioned, form the basis of a finding of bias only if the ruling is so patently erroneous or so disproportionate as to suggest that it must have been motivated by something untoward. That is a high threshold.

The factual enquiry

[12] In the course of his submissions, Mr Casey has taken me through the various steps which led to the two decisions of the Judge which are in issue. The first of these was made in the context of a management conference convened under s 267 of the Resource Management Act. On 22 October 2009 Mr Casey, for Redback, filed a memorandum seeking a range of directions under s 267. Among them was a request

for a ruling in relation to archaeological evidence. In his memorandum he submitted that the notices of appeal did not allege any mater of archaeological significance or any ground for refusing consent based on archaeological heritage. He noted that there is a separate process under the Historic Places Act 1993 by which the applicant must apply to the New Zealand Historic Places Trust for permission to destroy,

damage or modify any archaeological site. He argued that not only were archaeological matters not relevant to the appeals but that they are required to be the subject of separate consideration under different legislation. He complained that despite this, the appellants had exchanged evidence of a number of witnesses dealing extensively with archaeological issues.

[13] In response, the appellants’ counsel, Mr Cavanagh, filed a memorandum dated 28 October. In it he referred to the evidence of two of the three archaeological experts which the appellants proposed to call. He noted that their evidence makes clear that archaeology relates not only to the ground on which buildings are erected but also, in relation to buildings of the age and historic importance of the Masonic Tavern, to the fabric of the building itself. He went on to say that one of the experts whose evidence had been put forward by Redback had not demonstrated in her evidence any understanding of archaeological practice and that she was not in a position to give effect to any outcome in this regard.

[14] At para 13 of the memorandum, it was stated:

It is conceded that the appeals do not refer specifically to archaeological issues. The appeal of Devonport Heritage Inc states that the decision:

“falls to protect the historic importance of the whole of the Masonic Hotel and the boarding house, which are two of the oldest surviving wooden buildings in North Shore City.”

Both appeals criticise the adequacy of the Conservation Plan. It is submitted that these matters are relevant to enable a proper assessment of the historic and cultural significance of the property/site. Therefore, evidence is required to establish the importance of the site in heritage terms.

[15] Redback sought the indulgence of the Court to respond to paras 12 and 13 of Mr Cavanagh’s memorandum and filed a further memorandum dated 30 October specifically directed to the submissions in those paragraphs. Among other things, Mr Casey said that the criticism that Redback’s “team” did not contain an archaeological specialist and that no archaeological evidence was provided was unwarranted. He repeated that the archaeological evidence was a matter not raised in the appeals and therefore not relevant.

[16] In a minute issued on 6 November 2009, Judge Thompson gave a number of directions. At para 12 he said:

Scope of appeals

The appellants acknowledge that archaeology, as a topic, was not raised in any of the Notices of Appeal. It is therefore not within the scope of the appeals and evidence about it, as a topic, will not be received.

[17] The plaintiffs, having appealed against that ruling of Judge Thompson, applied to the Judge on 23 November, by way of memorandum, for an order staying the hearing of the appeal to the Environment Court pending the disposition of the appeal. That application was opposed by Redback. In a fully considered and reasoned decision issued on 4 December 2009, Judge Thompson declined the application for stay. He declined to express any view on the validity or arguable merits of the appeal, having already made a decision on the relevance and admissibility of the disputed evidence. He noted, however, that as a fundamental issue, he did not accept that a ruling in respect of the relevance and admissibility of evidence about one part of a topic is a “judgment” or is determinative of the rights of the parties.

[18] Judge Thompson said the appeal rights of the parties would not be rendered nugatory if the matter proceeded before the appeal was resolved. Referring to Attorney-General v W (2007) 18 PRNZ 673, he acknowledged that there may be exceptional circumstances in which it would be appropriate to defer a substantive hearing pending the resolution of an appeal against a procedural or admissibility ruling, but he saw nothing in the material brought before him to put this matter into that exceptional category. He described it as a very standard evidential issue which does not determine the rights of the parties either way.

Discussion

[19] The critical question that I am required to determine is whether these two decisions, in the context in which they were given, would lead a fair-minded lay observer to reasonably apprehend that Judge Thompson might not bring an impartial mind to bear on the case. That would require, as I have previously noted, that the

decisions have been so patently erroneous or so disproportionate as to suggest that something untoward must have motivated Judge Thompson’s rulings. The question

is not, I emphasize, whether his decisions were correct. That is for the appellate process to determine. It is whether his decisions would found a finding of bias on the test which I have articulated.

[20] I am in no doubt that the plaintiffs have failed to reach the high threshold necessary to establish bias. The ruling in relation to the scope of the hearing and the admissibility of evidence was a perfectly orthodox decision made in the context of the management of the appeal. There is nothing in the decision itself, either its substantive terms or its tenor, to suggest that the Judge was not bringing an impartial mind to bear on the issue. Mr Casey has pointed out to me, and his submission in that respect was not challenged, that on a number of other issues which were the subject of directions arising out of that conference, the decisions of Judge Thompson were adverse to Redback.

[21] The stay application was, as I have said, a carefully reasoned decision based

on orthodox principles. Like the earlier decision, it betrays no hint that the Judge may have come to some view of the case adverse to the position of the plaintiffs.

[22] I express no opinion on whether the Judge was right on either of these issues. That is ultimately a matter for the appellate process. I do make it clear, however, that in neither case has it been shown that his decision was so erroneous as to be explicable only on the basis that he had directed himself in a plainly improper and non-judicial way.

[23] I also need to make clear that if the Judge was wrong, the plaintiffs will have their remedy. There has been no determination of the substantive rights of the parties and the plaintiffs’ rights of review are fully preserved. If they were ultimately able to establish bias on the part of the Judge, their position is not irretrievably lost. They would be entitled to have the appeal reheard. I accept that that is not an attractive prospect but the alternative is, if anything, more unpalatable. That would be to postpone indefinitely the present hearing to the considerable inconvenience of and cost to the parties and the Court.

[24] Even if I had come to the view that an interim order could be justified under

s 8 of the Judicature Amendment Act 1972, I would not have been persuaded that it was in the interests of justice to exercise my discretion to stay the present hearing. I accept Mr Casey’s submission that Redback would be seriously prejudiced by such a course and that any further delay in the disposition of the appeal before the Environment Court is undesirable.

Result

[25] For these reasons, the application for interim orders is dismissed.

Costs

[26] Costs are reserved. If counsel wish to pursue the issue of costs, the defendants should file memoranda within 28 days. The plaintiffs have a further 14 days within which to respond.