Hall v Attorney-General [2012] NZHC 1517 (28 June 2012)

Last Updated: 5 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2006-404-003321 [2012] NZHC 1517

BETWEEN JOHN HALLIDAY HALL Plaintiff

AND THE ATTORNEY-GENERAL Defendant

Hearing: 18-22 and 27-28 June 2012

Counsel: A H J Commons for the Plaintiff

H S Hancock and A A Jacobs for the Defendant

Judgment: 28 June 2012

(ORAL) JUDGMENT OF DUFFY J

_{[Re Application to Amend Prayer for Relief]}

Counsel: A H J Commons P O Box 4304 Shortland Street Auckland 1140 for the Plaintiff

_{Solicitors: Crown Law P O Box 2858 Wellington 6140 (DX SP20208) for the Defendant}

HALL v ATTORNEY-GENERAL HC AK CIV-2006-404-003321 [28 June 2012]

[1] This proceeding is about whether a parcel of land should be offered back to its former owner in accordance with s 40(2) of the Public Works Act 1981.

[2] The proceeding has reached the stage where the evidence is completed, and I

am now hearing closing submissions from the parties.

[3] Yesterday, as the plaintiff was delivering his closing submission, I was advised that the plaintiff wanted to alter the relief sought in the amended statement of claim. The amendment would have the effect of inviting this Court to make a declaration that the subject land be offered back to the plaintiff, rather than to declare that the decision to exempt the land from offer back be sent back to the decision- maker for re-consideration.

[4] The Crown indicated that it opposed any amendment to the prayer for relief. This stance made it necessary for the plaintiff to make a formal application to amend the prayer for relief. He now does so. The relief that is now being sought is as follows:

(a) A declaration that:

(i) The western block was not required for the Crown’s public

work and was to be offered back as at May 1999;

(ii) The delegatee’s decision to exempt the western block (less RAP 21) from offer back to the plaintiff is unlawful and is set aside; and

(iii) The Crown be obliged to offer the western block (less

RAP 21) to the plaintiff under s 40 of the Public Works Act

1981 as at May 1999.

[5] The plaintiff submits that the proposed relief is much the same as was sought in the original statement of claim filed on 14 June 2006. In that pleading, he had sought declarations that the Crown was obliged to offer to the plaintiff the right to purchase either the whole of the area described as the western block as at valuation

as at May 1999, or the whole of the western block, excluding the area known as

RAP 21 as at the same valuation date.

[6] At the time the proceedings were commenced, there was no decision to exempt the subject land from offer back under the Public Works Act. However, on

29 July 2009, the delegatee of the Chief Executive of Land Information

New Zealand exercised the power to exempt the property from offer back.

[7] Following this event, the plaintiff applied to amend the statement of claim to include a legal challenge to the lawfulness of the decision to exempt the land from offer back.

[8] In the amended statement of claim, the prayer for relief was for declarations that the subject land was surplus to the Crown’s requirements as at May 1999, and that the Chief Crown Property Officer (Chief Executive Officer of Land Information New Zealand) should re-consider whether or not to offer the western block back to the plaintiff, without taking into account the delegatee’s considerations.

[9] Having reached this stage in the proceeding, the plaintiff is now concerned that by seeking this relief, he will be foreclosed from arguing before this Court that it make a declaration that the land be offered back. He has referred me to case law in which the Court has made declarations requiring a statutory officer to act in a certain way, rather than require him or her to reconsider the decision under challenge: see Fiordland Venison v Minister of Agriculture & Fisheries [1978] 2 NZLR 341 and, Attorney-General v Edmonds [2006] NZCA 146.

[10] The plaintiff argues that the amendment is in the interests of justice; it is an amendment purely to the prayer for relief; it does not alter the factual allegations; and it is in substance a return to the relief that was originally sought. The plaintiff is concerned that if the decision to exempt were to be sent back for re-consideration, he may find himself in a position where he has to return to this Court to challenge a fresh decision to exempt the land from offer back. The plaintiff is concerned, as a result of the view he has formed on the evidence that has been led in this Court, that any re-consideration may not be carried out in a fair and impartial manner.

[11] The plaintiff is also concerned about delay. The plaintiff’s case is that the subject land became surplus to the Crown’s needs as a public work as at May 1999. There is evidence from the Crown showing that the Crown had recorded the subject land as surplus to its requirements in 2002. On either date, the delay between then and now is considerable.

[12] Against this background, the plaintiff commenced proceedings in May 2006 and it was not until three years later that the power to exempt from offer back was legally exercised.

[13] Given that we are now at 2012, the plaintiff claims that the delay to date is inordinate delay and that he should not have to suffer any further delay in enjoying the rights given to him by s 40.

[14] The Crown opposes the amendment. The Crown contends that responsibility for delay falls equally on both parties. The Crown contends that it is usual for decisions that are found to be unlawful to be sent back to the decision-maker for re- consideration. Here, it argues that no departure from the usual is warranted.

[15] At present, the application is simply one to amend the prayer for relief, so that the plaintiff will have an opportunity to argue that given the particular circumstances of this case, the interests of justice do not lie in sending the decision to exempt back for re-consideration. Instead, this Court should make declarations that the land was surplus as at May 1999, and the decision to exempt from offer back is unlawful, so that it follows automatically as a statutory consequence under s 40 that the land should be offered back to the plaintiff at a price determined by the value of the land at the date when it was no longer required as a public work.

[16] Amending the prayer for relief to permit the plaintiff to make his arguments on this issue does not mean that his arguments will succeed. The Crown will still be free to argue that should the Court find the decision to exempt from offer back was unlawful, the proper course of action is for this Court to send it back to the decision- maker for re-consideration.

[17] I do not see how the proposed amendment to the prayer for relief will cause any injustice to the Crown. The type of arguments it would wish to make in support of re-consideration of the exemption decision are still available to it.

[18] Furthermore, I am not satisfied that any decision by this Court first, to find the exemption decision unlawful, but secondly, to not send it back for re- consideration would necessarily preclude any further re-consideration from occurring. An unlawful decision is a nullity, therefore, it is as if the decision has not been made: see discussion in Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 134. The Interpretation Act 1999 contains provision in s 13 permitting decisions to correct errors or omissions, even when the statutory power in question is not generally capable of being exercised more than once. And s 16 of that Act permits the power conferred by an enactment to be exercised from time to time. So, insofar as there may still be some recognition given to the 2009 decision, following any declaration that it is unlawful, that should not preclude the Chief Executive from deciding the matter afresh under s 40.

[19] It seems to me, therefore, that if, in this case, the relevant decision-maker considers that there are proper reasons justifying exemption, which have not been included in the original decision, that there is no insurmountable legal obstacle to a fresh decision being made. Accordingly, I can see no proper basis for refusing the amendment. The prayer for relief is amended to read as set out in [4] herein.

Duffy J