Taueki v Horowhenua District Council [2016] NZHC 1982 (24 August 2016)

Last Updated: 18 October 2016

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2013-454-441 [2016] NZHC 1982

UNDER	the Declaratory Judgments Act 1908
IN THE MATTER	of a purported agreement in 1973 in relation to stormwater discharge into Lake Horowhenua
AND
IN THE MATTER	of a purported ratification of the 1973 agreement by the Horowhenua District Council on 2 October 2013
BETWEEN	PHILIP DEAN TAUEKI First Plaintiff
	MARGARET TAUEKI Second Plaintiff
	PETER CHARLES HEREMAIA Third Plaintiff
	VIVIENNE TAUEKI Fourth Plaintiff
	MELANIE TUKAPUA Fifth Plaintiff
	JOSEPH HAPETA TAUEKI Sixth Plaintiff
	PRISCILLA NAHONA Seventh Plaintiff
	TE KEKE TAUEKI Eighth Plaintiff
	PEGGYANNE GAMBLE Ninth Plaintiff
	CHARLES RUDD (SNR) Tenth Plaintiff

TAUEKI v MARGARET TAUEKI [2016] NZHC 1982 [24 August 2016]

	EUGENE THOMAS HENARE Eleventh Plaintiff
	COLIN HANITA PAKI Twelfth Plaintiff
	FREDERICK PK HILL Thirteenth Plaintiff
	MACKIE NAHONA Fourteenth Plaintiff
	BRADLEY TAUEKI Fifteenth Plaintiff
	DELIA PAUL Sixtenth Plaintiff
AND	HOROWHENUA DISTRICT COUNCIL Defendant

Telephone Conference:	23 August 2016
Counsel:	P D Taueki in Person H P Kynaston and M L Mulholland for Defendant
Judgment:	24 August 2016

_{JUDGMENT OF CLARK J}

Introduction

[1] In this proceeding the first plaintiff, Mr Taueki, seeks declarations under the Declaratory Judgments Act 1908 bearing on the validity and lawfulness of a resolution passed by the Horowhenua District Council (HDC) to ratify an agreement in 1973 granting drainage rights to a predecessor¹ of the HDC on land owned by the trustees of the Lake Horowhenua Trust.

[2] Mr Taueki has applied for leave to cross-examine the Chief Executive Officer of the HDC, David Michael Clapperton.

¹ Specifically, the Levin Borough Council.

The application for leave to cross-examine

Mr Taueki

[3] Mr Taueki wishes to cross-examine Mr Clapperton in respect of his second affidavit filed in July 2015. In his application Mr Taueki:

(a) explains that the issue in the proceeding is the legitimacy of the resolution passed by the HDC on 2 October 2013 to ratify a 1973 document that was not, he says, signed by the Levin Borough Council;

(b) suggests that as a year has passed since Mr Clapperton swore his affidavit, an update would be helpful for the Court; and

(c) sets out the issues, matters and intended focus of his cross-examination. The scope of the proposed cross-examination is very broad. Some 18 areas of cross-examination are identified in the application. They include (by way of example)—

(i) a Chief Executive’s report placed on the agenda for the HDC

meeting on 2 October 2013 which “states that there were no

‘legal considerations’”. Mr Taueki would question Mr Clapperton to ascertain whether he sought legal advice before including this statement in his report.

(ii) the authenticity of other claims included in that same report.

(iii) concerns which councillor Anne Hunt raised about s 191 of the

Local Government Act 2002 at the meeting on 2 October

2013.

(iv) the basis for the HDC’s position that the operation of the drains does not amount to a trespass or nuisance to the underlying land.

(v) the concept of ‘natural servitude’.

(vi) Mr Clapperton’s evidence that the land is not owned by members of the iwi directly and Mr Clapperton’s familiarity with provisions of the Reserves and Other Lands Disposal Act

1956.

(vii) whether Mr Clapperton is aware of a report dated

10 December 2014 prepared for the HDC by a principal scientist at NIWA concerning a proposed wetland area.

(viii) aspects of a treatment system and storm water diversion.

[4] As I have said, these are but examples taken from Mr Taueki’s application. During the telephone conference Mr Taueki added that he also wished to cross-examine Mr Clapperton on statements in the HDC’s recently issued Pre-election Report.

The Defendant

[5] The defendant advances five main grounds in its opposition to the application.

(a) The issues between the parties are predominately legal.

(b) To the extent there are matters of disputed fact they relate to the 1973 agreement at the centre of this proceeding and surrounding events. Mr Clapperton is unable to assist because he has no personal knowledge of those matters.

(c) Nor are those background contextual facts which are disputed by Mr Taueki essential for the Court’s determination as they do not bear on the declarations sought.

(d) The reasons cited by Mr Taueki for wishing to cross-examine go to

matters that are irrelevant to the declarations he seeks and the defences raised by the HDC.

(e) This proceeding is one of many proceedings between Mr Taueki and the HDC (among other parties) relating to Lake Horowhenua and it is apparent that Mr Taueki wishes to cross-examine Mr Clapperton on various matters unrelated to this particular proceeding.

[6] Mr Kynaston, counsel for the HDC, also submitted that his concerns were reinforced by Mr Taueki’s oral submissions, in particular the suggestion that he also wished to cross-examine Mr Clapperton about the HDC’s recently issued Pre-election Report.

Cross-examination — the applicable provisions and principles

[7] Being a proceeding in which the relief claimed is solely under the Declaratory Judgments Act 1908, pt 18 of the High Court Rules applies. In terms of evidentiary requirements r 18.15 provides that, unless a Judge otherwise directs, evidence in a proceeding to which pt 18 applies must be by means of an agreed statement of facts or by affidavit.

[8] The evidence in a declaratory judgment proceeding will not be complex or overly contentious:²

Proceedings for a declaratory judgment about the interpretation of an instrument may need nothing more than an agreed statement of facts or, if agreement is not obtainable, the simplest of affidavits.

[9] Then there is r 9.74 which provides an effective right of cross-examination. A party desiring to cross-examine a person who has sworn an affidavit need only serve a notice requiring production of that person. While it is not necessary for a party to seek leave to cross-examine the Court will not permit cross-examination on

_{matters not connected with the question in the proceedings.}³

² _{McGechan on Procedure (online looseleaf ed, Westlaw) at [HCR 18.15.01].}

³ Re SBA Properties Ltd [1967] 2 All ER 615 — an insolvency proceeding where leave was declined because cross-examination was proposed in respect of matters only very indirectly relevant to the question for determination namely whether a winding-up order should be made.

[10] In addition to the High Court Rules there is the long settled rule of practice in judicial review proceedings that cross-examination is not permitted as of right. The practice is founded on the nature of judicial review as a “relatively simple, untechnical and prompt procedure” and on s 10 of the Judicature Amendment Act

1972 pursuant to which a Judge may give all necessary or appropriate preliminary directions including as to the mode in which evidence is to be given.⁴

[11] The rationale underpinning the reluctance to permit cross-examination in judicial review proceedings has parallels, in my view, with applications under the Declaratory Judgments Act. This jurisdiction, likewise, is aimed at providing a prompt and inexpensive route to obtaining judgment:⁵

The procedure is intended to provide a speedy and inexpensive method of obtaining a judicial interpretation where the matter in dispute cannot conveniently be brought before the court in its ordinary jurisdiction and where a declaratory judgment would be appropriate relief.

[12] As a Judge may give directions for the purpose of ensuring an application for judicial review is determined in a convenient and expeditious manner so too is the giving of evidence, in a proceeding to which pt 18 applies, subject to judicial direction.⁶

Decision

[13] I suggested to Mr Taueki that perhaps the Declaratory Judgment Act route was not the most suitable path for the type of hearing he envisaged. As Katz J observed:⁷

... if the directions sought were made, a significant element of disputed fact would be introduced into the declaratory judgment proceedings. The case law is clear that the declaratory judgment procedure is inappropriate where there are mixed questions of fact and law.

⁴ Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650, [1997] NZAR 322, (CA) at 656–7 following Minister of Energy v Petrocorp Exploration Ltd [1989] NZCA 95; [1989] 1 NZLR 348 (CA) at 353.

⁵ _{NZ Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) at 85.}

⁶ _{By virtue of r 18.15.}

⁷ Cox v Auckland Council [2012] NZHC 3384 at [38].

[14] But the course is now struck and I am clear that the application for leave to cross-examine should be dismissed.

[15] It follows from the preceding observations about the nature and purpose of declaratory judgment proceedings that cross-examination will be atypical. The objective of a speedy and inexpensive judicial interpretation in declaratory judgment proceedings will ordinarily be served by refusing or restraining cross-examination of deponents. To this extent the right to cross-examine reflected in r 9.74 yields to the procedural “code” in pt 18 and, in particular, the judicial directions envisaged under r 18.15.

[16] As well, I am persuaded that the application must be declined because the matters on which Mr Taueki proposes to cross-examine Mr Clapperton have only indirect relevance to the issue for determination namely the validity or lawfulness of the resolution of the HDC. The issues in this proceeding are primarily legal. Cross-examination on the matters set out in the application will not assist determination of those issues.

Result

[17] The application for leave to cross-examine is dismissed.

[18] The defendant is entitled to costs which, pursuant to r 14.8, I fix in the sum of

_$1300.

_{Karen Clark J}

Solicitors:

Buddle Findlay, Wellington for Defendant