Jefferies v Wellington Regional Council [2014] NZHC 916 (6 May 2014)

Last Updated: 12 May 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-009097 [2014] NZHC 916

BETWEEN	ALAN DENNIS JEFFERIES Applicant/Plaintiff
AND	WELLINGTON REGIONAL COUNCIL First Respondent/First Defendant UPPER HUTT COUNCIL Second Respondent/Second Defendant LUKE CUNNINGHAM & CLERE Third Respondent/Third Defendant

CIV-2014-485-001323

BETWEEN ALAN DENNIS JEFFERIES Applicant/Plaintiff

AND WELLINGTON REGIONAL COUNCIL First Respondent/First Defendant

LUKE CUNNINGHAM & CLERE Second Respondent/Second Defendant

Hearing:	5 May 2014
Counsel:	Applicant/Plaintiff in person D R La Hood and J A Eng for First and Third Respondents in proceeding CIV-2013-485-009097 and First and Second Respondents in proceeding CIV-2014-485-001323 P Moodley for Second Respondent in proceeding CIV-2013- 485-009097
Judgment:	6 May 2014

_{JUDGMENT OF COLLINS J}

JEFFERIES v WELLINGTON REGIONAL COUNCIL [2014] NZHC 916 [6 May 2014]

Introduction

[1] This judgment explains why I must strike out two sets of proceedings

Mr Jefferies has commenced.

[2] In one proceeding Mr Jefferies has sought judicial review of decisions of the Wellington Regional Council (Regional Council), Upper Hutt City Council (City Council) and the law firm Luke Cunningham & Clere, which is responsible for prosecuting certain charges brought against Mr Jefferies by the Regional Council. I shall refer to this proceeding as the “judicial review proceeding”.

[3] In the second proceeding, headed “Statement of Claim for Injunction” Mr Jefferies sues the Regional Council and Luke Cunningham & Clere in relation to the way they have conducted litigation that has resulted in various judgments against Mr Jefferies, culminating in a decision of the Court of Appeal delivered on

12 February 2014.¹ I shall refer to this proceeding as the “injunction proceeding”.

[4] I have concluded Mr Jefferies’ proceedings must be struck out because they:²

(1) disclose no reasonably arguable cause of action; (2) are frivolous; and

(3) are an abuse of the process of this Court.

[5] In reaching this conclusion I have applied the principles governing strike-out applications explained by the Court of Appeal in Attorney-General v Prince³ and endorsed by the Supreme Court in Couch v Attorney-General:⁴

(1) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative

_{and without foundation.}

¹ _{Jefferies v Wellington Regional Council [2014] NZCA 15.}

² _{High Court Rules, r 15.1(1).}

³ _{Attorney-General v Prince [1998] 1 NZLR 262 (CA).}

⁴ Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

(2) The cause of action must be clearly untenable.

(3) The jurisdiction to strike out is to be exercised sparingly and only in clear cases.

(4) The jurisdiction to strike out is not excluded by the need to decide difficult questions of law requiring extensive argument.

(5) The Court should be particularly slow to strike out a claim in any developing area of law, particularly where a duty of care is alleged in a new situation.

Background

[6] In February 2002 Mr Jefferies purchased a block of land within the boundaries of the Regional Council and the City Council. The Mangaroa River flows through a portion of Mr Jefferies’ land. The land in question had once been the site of a timber treatment plant.

[7] In early 2002 the Regional Council became concerned about construction work that had been done in the bed of the Mangaroa River adjacent to Mr Jefferies’ property and a neighbouring property. The work in question involved the construction of a 1.5 metre high bund, which had the effect of diverting the Mangaroa River along its western arm and away from the eastern arm, which runs through part of Mr Jefferies’ property.

[8] In April and May 2010, the Regional Council issued two abatement notices. The first related to the bund. The second abatement notice related to the tipping of a substantial volume of concrete rubble and fill down a cliff onto the river bed.

[9] Mr Jefferies appealed to the Environment Court against the abatement notices. The Environment Court held that the actions undertaken by Mr Jefferies

_{were in relation to the bed of the Mangaroa River.}⁵ _{Mr Jefferies appealed the}

⁵ Jefferies v Wellington Regional Council [2012] NZEnvC 50.

Environment Court’s decision. That appeal was dismissed by Williams J,⁶ who also dismissed Mr Jefferies’ application for leave to appeal to the Court of Appeal.⁷ The Court of Appeal dismissed Mr Jefferies’ application for special leave to appeal the substantive judgment of Williams J.⁸

[10] Mr Jefferies has been charged with four offences under s 338(1) of the Resource Management Act 1991 relating to the construction of the bund, the depositing of fill onto the Mangaroa River bed, excavating the bed of the Mangaroa River and contravening an abatement notice. Mr Jefferies has elected trial by jury. His trial is scheduled to commence in the Wellington District Court on 4 August

2014.

Mr Jefferies’ proceedings

[11] I have attempted to identify all of Mr Jefferies’ possible causes of action by carefully examining not just his statements of claim, but also his notices of opposition to the strike-out applications and his written submissions. I have gone beyond the statements of claim because Mr Jefferies’ notices of opposition and written submissions raise possible causes of action that are not alluded to in his statements of claim.

Judicial review proceeding

[12] The judicial review proceeding appears to allege the following causes of action:

(1) That the Regional Council failed to protect Mr Jefferies’ land by not providing flood protection or river maintenance services. Mr Jefferies says these services should have been provided as the corollary of a river management rate levied against his land by the Regional Council. As part of this cause of action Mr Jefferies seeks “immunity

_{from enforcement action”.}

⁶ _{Jefferies v Wellington Regional Council [2013] NZHC 1059.}

⁷ _{Jefferies v Wellington Regional Council [2013] NZHC 2341.}

⁸ Jefferies v Wellington Regional Council, above n 1.

(2) That the charges Mr Jefferies is facing in the District Court should never have been laid. Mr Jefferies seeks damages from the Regional Council “as a consequence of the [Regional Council] laying trumped up charges against [him]”.

(3) That the Regional Council is liable in negligence pursuant to s 148 of the Soil Conservation and Rivers Control Act 1941. This cause of action is alluded to in Mr Jefferies’ submissions in support of his opposition to the strike-out application.

(4) That the City Council has breached its obligations to Mr Jefferies pursuant to a 1976 agreement between the Regional Council and the City Council. This agreement is referred to as the “watercourses agreement”. This possible cause of action is referred to in Mr Jefferies’ written submissions.

Injunction proceedings

[13] The injunction proceedings appear to allege that the Regional Council and Luke Cunningham & Clere have breached the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008 by not accurately identifying the true river bed of the Mangaroa River. Mr Jefferies says that the eastern branch of the Mangaroa River is in fact a drain at the point that it runs through his land. Mr Jefferies appears to allege that as a consequence the charges against him are misconceived.

Reasons for striking out causes of action

Cause of action based upon the river management rate

[14] Mr Jefferies has explained in his written submissions that he:

... takes no issue with respect to the [Regional Council’s] actions with respect to the collection of the rate it is the [Regional Council’s] decision, together with the [City Council’s] decision not to provide the service of river maintenance, which is the issue with respect to the subject of this review.

[15] This aspect of Mr Jefferies’ claim engages a judgment of the Full Court of the

Court of Appeal in Wellington City Council v Woolworths New Zealand Ltd (No 2).⁹

In that case Woolworths challenged the Wellington City Council’s decision to fix a rating differential of 67 to 33 per cent between commercial and residential properties. The Court of Appeal said that the setting of rates by a territorial local authority:¹⁰

... does not require a close correlation between benefits provided to the particular sector and rates levied on that sector. Given the nature of the imponderables involved it does not call for an elusive search for a direct relationship between services and benefits.

[16] Mr Jefferies’ claim asks the High Court to construct a direct relationship between the services the Regional Council provides and the benefits which Mr Jefferies says he is entitled to when he pays the river management rate. However, I cannot reconcile Mr Jefferies’ claim with the approach taken by the Court of Appeal in Woolworths. Accordingly, I conclude this part of Mr Jefferies’ case discloses no reasonably cause of action and must be struck out.

Claims based on the prosecution of Mr Jefferies

[17] Mr Jefferies seeks judicial review of a decision by the Regional Council to prosecute him for four offences under s 338(1) of the Resource Management Act. Judicial review is available to challenge a decision to prosecute under the Resource Management Act because it involves the exercise of a statutory power under that Act. However, judicial review can only be used to challenge prosecutorial decisions

in exceptional circumstances¹¹ and where it can be established that the prosecuting

authority has acted in bad faith or commenced the prosecution for a collateral purpose.¹²

⁹ _{Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA).}

¹⁰ _{At 546.}

¹¹ _{Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [60].}

¹² At [17]. See also Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [16]- [29].

[18] The Courts traditionally have been reluctant to interfere with decisions to initiate and continue a prosecution because criminal trial processes provide opportunities to stay and dismiss charges that have been improperly brought.¹³

[19] If Mr Jefferies is found not guilty his remedy may lie in a claim under the Costs in Criminal Cases Act 1967 or, depending on the circumstances, in a claim for malicious prosecution. At this juncture, judicial review is not the appropriate means to assess the strength of the criminal case against Mr Jefferies.¹⁴

[20] Mr Jefferies’ claims based upon the Regional Council’s prosecution of him have to be struck out because they disclose no reasonably arguable cause of action, are frivolous or an abuse of the processes of the High Court.

Claim based on negligence

[21] This cause of action appears to allege the Regional Council and the City

Council are liable under s 148(1) of the Soil Conservation and Rivers Control Act

1941 which provides:

No Board shall be liable for injury to any land or other property caused without negligence of the Board by the accidental overflowing of any watercourse, or by the sudden breaking of any bank, dam, sluice, or reservoir made or maintained by the Board.

[22] It is accepted for present purposes that the Regional and City Councils are

Boards for the purposes of s 148(1) of the Soil Conservation and Rivers Control Act

1941.

[23] The Environment Court, the High Court and the Court of Appeal have held that the eastern arm of the Mangaroa River is a riverbed at the point where it passes through Mr Jefferies’ land. Although Mr Jefferies disagrees with these judgments, Mr Jefferies’ claim against the Regional and City Councils cannot be based on a suggestion that, due to the negligence of the Regional Council, the Mangaroa River

_{flows through his land because of an accidental overflow of the river or the sudden}

¹³ Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [31]; Field v Burgess [2007] NZCA 547 at

_[33].

¹⁴ Gill v Attorney-General, above n 12, at [17].

bursting of its banks. The passing of the Mangaroa River through Mr Jefferies’ property cannot form the basis of a claim that the Regional Council has negligently damaged his land. For this reason, s 148(1) Soil Conservation and Rivers Control Act does not assist Mr Jefferies.

Cause of action based upon the “watercourses agreement”

[24] The cause of action based upon the watercourses agreement is misconceived because the watercourses agreement does not relate to Mr Jefferies’ land. The watercourses agreement applies only to the “residential reach” of the Mangaroa River. Mr Jefferies’ property is within a zone known as the “business industrial” section of the City Council District Plan. His land is approximately 400 metres from the portion of the Mangaroa River to which the watercourses agreement relates.

[25] The City Council did not breach its obligations to Mr Jefferies under the watercourses agreement. Accordingly, Mr Jefferies’ claim based upon the watercourses agreement discloses no reasonable prospects of success.

Injunction proceeding

[26] The claim that the Regional Council and Luke Cunningham & Clere have breached the New Zealand Geographic Board Act by misrepresenting that the Mangaroa River is a river at the point it crosses through Mr Jefferies’ land is also doomed to fail. Mr Jefferies maintains that the river when it passes through his land is in fact a drain. However, that assertion involves a direct challenge to the decisions of the Environment Court, High Court and Court of Appeal. I am bound by the Court of Appeal’s findings, and allowing them to be challenged in this Court would

be an abuse of process.¹⁵

[27] Mr Jefferies’ claims based upon his assertion that the eastern arm of the Mangaroa River is a drain at the point it crosses through his land is unsustainable and his causes of action based upon this claim constitutes an abuse of the process of

_{the High Court.}

15. See W v W [1999] 2 NZLR 1 (PC) and Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; [1982] AC 529 (HL).

Conclusion

[28] Mr Jefferies’ claims have to be struck out.

[29] The Regional Council and the City Council are each entitled to costs on a scale 2B basis. It is not necessary to make any award in favour of Luke Cunningham

_{& Clere.}

D B Collins J

Solicitors:

Luke Cunningham & Clere, Wellington for First and Third Respondents/First and Third Defendants in proceeding CIV-2013-485-009097 and First and Second Respondents/First and Second Defendants in

proceeding CIV-2013-485-001323

Brookfields, Auckland for Second Respondent/Second Defendant in proceeding CIV-2013-485-

009097