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High Court of New Zealand Decisions |
Last Updated: 2 November 2018
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
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CIV-2018-485-013
[2018] NZHC 2823 |
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UNDER
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Schedule 5, clause 2(1) of the Local Government Act 2002
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IN THE MATTER
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of an appeal against a decision of the Local Government Commission made
under clause 11(1) of Schedule 3 of the Act to determine
that the status quo is their preferred option
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BETWEEN
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NORTHERN ACTION GROUP INCORPORATED
Appellant
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AND
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THE LOCAL GOVERNMENT COMMISSION
Decision Maker
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Hearing:
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27 June 2018
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Appearances:
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W P Foster and W R Townson for Appellant
B A Davies and N J G Smith for Decision Maker
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Judgment:
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31 October 2018
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JUDGMENT OF GRICE J
Affected Area declaration and application for extension of time to appeal; Preliminary orders; Representation of appellants
NORTHERN ACTION GROUP INCORPORATED v THE LOCAL GOVERNMENT COMMISSION [2018] NZHC 2823 [31 October 2018]
Contents
Para No.
Application for Reorganisation of local government for North Rodney
district [1]
The present applications [7]
Background [9]
The Commission [9]
The Commission’s considerations of Northern Action’s application [16]
“Affected area” decision [20]
Notification requirements [28]
Alternative applications [30]
The long list [32]
“Preferred option” decision [35]
Is the “affected area” declaration a decision for the purposes of appeal? [39]
Analysis [46]
Application for extension of time to appeal [57] What material should the Court have for a proper determination of the points of law in issue? [63]
Relevant law [63]
What has been provided to the Court [78]
Further material sought by Northern Action [84]
Communications with Commission’s experts and advisors [91] Material provided by and communications with Auckland City Council [102] New evidence on appeal [108]
Reports [116]
Legal representation [122]
Amicus curiae [122]
Lay representation [130]
Conclusion [137]
Orders [141]
Costs [144]
Leave [146]
Application for Reorganisation of local government for North Rodney district
[1] Northern Action Incorporated (Northern Action) is an incorporated society. Its members live in the region of Rodney, a predominantly rural region north of Auckland. It believes that North Rodney has little in common with most of those who live within the district of the Auckland Council boundaries. The action group was formed in response to the inclusion of North Rodney in the Auckland Council area.
[2] As a result of the merging of a number of councils and the creation of a single Auckland Council, a moratorium was placed on any applications for local authority
reorganisation affecting Auckland until the completion of the 2013 triannual general elections.1
[3] As soon as the moratorium expired, Northern Action made an application for reorganisation to establish a separate unitary authority in the North Rodney area. The Local Government Commission declined to accept the application for assessment. After a successful appeal to this court, the matter was sent back to the Commission to reconsider.2
[4] The application was then accepted for assessment. Following the assessment process, the Commission concluded local government arrangements should not change. The Auckland Council was confirmed as the appropriate local authority. This was the status quo. Northern Action now appeals against that decision. It asks that it be set aside and the matter to be remitted to the Commission.
[5] In summary, for the purposes of these applications, Northern Action’s substantive appeal is based in general on claims that the Commission:
(a) put too much weight on the Auckland Council submissions and its own inhouse opinion;
(b) wrongly declared the Auckland Council area to be the “affected area” for the purposes of consideration of the application;
(c) inappropriately treated an application relating to Waiheke Island (made by the group Our Waiheke) as an alternative application for reorganisation and failed to include the Northern Action application in the long list of options for reorganisation;
(d) failed to properly consider the application in a number of respects including by putting too much weight on financial considerations and
1 Local Government (Auckland Transitional Provisions) Act 2010, s 9.
2 Northern Action Group Inc v Local Government Commission [2015] NZHC 805, 3 NZLR 538.
size, failing to regard the benefits of the proposal and rejecting options for resource sharing for the proposed Rodney Unitary Authority; and
(e) was biased or did not have an open mind.
[6] This last ground relating to bias has been “parked” for present purposes.
The present applications
[7] This judgment deals with Northern Action’s applications:3
(a) for a ruling that the “affected area” declaration made by the Commission is not a separate decision for the purposes of appeal. Alternatively, it seeks leave to appeal that decision out of time;
(b) that certain classes of documents held by the Commission be lodged by it with the Registrar of the High Court for the “proper determination of the point[s] of law” in issue in its appeal;4
(c) seeking leave to adduce further evidence on appeal;
(d) seeking the Commission lodge a report answering specific questions; and
(e) that Mr Foster and Mr Townson (who are not lawyers) be granted leave to represent Northern Action.
[8] To determine these issues requires a consideration of the background, the process leading to the Commission’s final decision and the grounds of appeal.
4 Local Government Act 2002, sch 5, cl 5(1)(a).
Background
[9] The Commission is a statutory body.5 Its members are appointed by the Minister.6 It may seek specialist advice and may engage consultants to assist it in carrying out its functions.7 The members generally will have experience or expertise in local government and related matters.8
[10] The Commission has the same powers as a Commission of Inquiry and may receive as evidence any statement or material, whether or not it would be admissible in a court of law.9
[11] The Commission is an administrative body and is not expected to act throughout its investigation as a judicial body in the strict sense.10 It has a wide- ranging ability to conduct its inquiry, set its own procedures and can sit with open or closed doors.11 Nevertheless, it must follow the prescribed processes for consultation, objections and hearings and act fairly observing the requirements of natural justice as appropriate in the circumstances.12 It must act in a manner consistent with its functions, efficiently and effectively and in a financially responsible manner.13
[12] The Commission is effectively a permanent Commission of Inquiry for local government reform. When considering a reorganisation proposal the main criterion is the promotion of good local government.14 This requires a wide consideration of adequacy of resources, efficient and effective performance, enabling democratic local government decision making on behalf of communities, meeting current and future
5 Local Government Act 2002 (the Act), s 29.
6 Section 33.
9 Local Government Act 2002, ss 34 and 35.
12 Commissions of Inquiry Act 1908, s 4A.
13 Local Government Act 2002, sch 4, cl 6.
14 Schedule 3, cl 12.
needs for good quality, efficient and effective infrastructure, public services and regulatory functions. The basis for its evaluative judgment is very broad.15
[13] Once the Commission decides to assess an application for reorganisation it follows the process set out under sch 3 of the Local Government Act 2002 (the Act). The focus is on broad community engagement. The Commission submitted that the Act:
(a) sets out the point at which persons, bodies or groups may submit alternative reorganisation applications;
(b) empowers the Commission to make its own inquiries and undertake whatever investigations it considers appropriate at various stages of the reorganisation application process;
(c) makes express provision for the point at which consultation with specified stakeholders is mandatory;
(d) makes provision for requesting further information as needed from applicants and affected local authorities; and
(e) specifies when the public notification of Commission decisions and/or invitations to participate must occur; and when notification to specific groups (such as the applicant, or affected local authorities) of Commission decisions must occur.
[14] The Commission undertakes broad information gathering and public engagement exercises. It gathers opinions from a range of sources including communities and the public, stake holders (including local authorities and community organisations), publicly available research and reports, and information and advice from internal advisors and external advisors. It considers the information and advice and makes its decision.
[15] No special engagement with the original applicants, beyond legislative notice requirements, is specified.
The Commission’s considerations of Northern Action’s application
[16] In 2014, the Commission initially declined to assess Northern Action’s reorganisation application for the following reasons:16
15 Palmer, above n 7, at [1.9.2].
16 Northern Action Group Inc v Local Government Commissioner, above n 2, at [14].
(a) there was insufficient clarity about the boundaries of the proposed North Rodney Council;
(b) Northern Action had not demonstrated community support within the district of the affected territorial authority for the Application outside of the proposed North Rodney Council area; and
(c) it was not in the public interest for the application to be considered.
[17] Northern Action’s appeal against the Commission’s initial decision was allowed. This was because the Commission had consulted with the affected territorial authority, Auckland Council, before reaching its decision to decline to assess the application.17 The Act required the Commission make a prompt evaluation of whether there were clear and obvious public interest grounds for declining to assess the application. Collins J held that engaging in extensive consultation with the affected local authority before deciding whether or not to assess a reorganisation application risked the Commission engaging in a merits assessment at a preliminary stage. This meant that the Commission had taken into account irrelevant considerations and so made a material error of law.
[18] In response to the Commission’s view that Northern Action’s application did not sufficiently describe the proposed district and identify the boundaries of the affected area, the Court noted that any defects of description could be addressed when the matter was reconsidered by the Commission.18 The Court further commented that Northern Action’s application was defective because it demonstrated support only in the area of the proposed North Rodney Council rather than community support in the district of the Auckland Council. The Court noted that Parliament’s intention was that applicants for reorganisation should demonstrate community support in the area of the territorial authority affected, which was the Auckland Council area, not simply one subsection of it.19
17 At [75].
18 At [80] – [81].
19 At [101].
[19] The decision was remitted back to the Commission for further consideration.20
“Affected area” decision
[20] The commission accepted the application for assessment following Collins J’s decision. The first step the Commission had to undertake was to satisfy itself that there was:21
... demonstrable community support in the district of each affected territorial authority for local government reorganisation in the affected area.
[21] This required the Commission to determine the affected area for the purposes of that inquiry.
[22] “Affected area” is defined in the Act as:22
(a) an area that would be included in the district or region of a new or different local authority if local government in relation to the area were to be reorganised in accordance with the reorganisation application, draft proposal, or final proposal:
(b) an area that remains in the district or region of a local authority, but the local authority’s responsibilities would be changed if local government in relation to the area were to be reorganised in accordance with the reorganisation application, draft proposal, or final proposal:
(c) the area comprising the whole district or region of an affected local authority if the Commission has declared it to be an affected area because the operational scale, scope, or capability of the local authority would be materially affected if local government were to be reorganised in accordance with the reorganisation application, draft proposal, or final proposal:
(d) in the case of a local board reorganisation application, or a draft proposal or final proposal resulting from such an application, the area comprising the whole district of the affected unitary authority.
(Emphasis added)
[23] In the earlier 2015 appeal, Collins J found that there was only one territorial authority affected by the application and that was the Auckland Council.23 The Judge
20 At [70] – [76].
21 Local Government Act 2002, sch 3, cl 8(1).
22 Schedule 3, cl 2.
23 Northern Action Inc v Local Government Commission, above n 2, at [95] – [99].
found Northern Action’s reorganisation application was defective in stating that North Rodney alone was the affected area.
[24] The issue in that case was limited to whether the community support was shown in the local authority area, ie the Auckland Council area. Therefore, the Judge did not need to consider whether affected area for other purposes was the Auckland Council district. The assessment process had been brought to an end by the Commission refusing to assess Northern Action’s application, so the Commission had not needed to consider the “affected area” issue.
[25] The identification of the “affected area” is needed as part of the assessment process. For instance, any notice calling for alternative applications must invite applications “in relation to the affected area”.24 In addition to that the Commission in the course of its inquiry is required to, and did consider, the effects of reorganisation on other areas and bodies such as neighbouring local authorities, and on relevant areas such as Rodney and Waiheke Island and on other communities of interest.
[26] On 14 April 2016, the Commission declared the Auckland Council district to be the affected area for the purposes of the application. It advised that it was satisfied that there was demonstrable community support in the affected area for reorganisation. It is common ground that Northern Action received notice of the declaration at that time.
[27] The Commission published a summary of reasons for its affected area declaration. It had decided if the North Rodney area was reorganised in the way proposed by Northern Action’s application it would have a material effect on the Auckland Council’s operational scale, scope and capabilities. In its reasons in support of the declaration the Commission says that in coming to its conclusion it took into account publicly available information, submissions and information from Auckland City Council as well as information from Northern Action which included the original reorganisation application and a response from it to the Auckland Council information. The Summary of Reasons specifically referred to Northern Action’s submission that
24 Schedule 3, cl 9(2)(d).
the application would not have a material effect on the greater Auckland region’s operations due to the small population and rating base of North Rodney.
Notification requirements
[28] Once the Commission had declared Auckland Council district to be the affected area and was satisfied of community support for reorganisation, it was required to give notice to the public, affected local authorities and to other persons it considered should be notified (such as Northern Action). That notice set out prescribed information including a description of the type of reorganisation proposed and the extent of the “affected area”. The Commission could also invite alternative applications in relation to the affected area.25
[29] The Commission gave notice calling for alternative applications in relation to the “affected area” in April 2016.26
Alternative applications
[30] From around April to June 2016 the Commission received alternative applications, including a supplementary proposal from Northern Action. The Commission also decided to treat an application for reorganisation which had earlier been filed by the Our Waiheke group as an alternative application.27
[31] The Commission released a summary of the alternative applications in July 2016. It subsequently received and accepted an alternative proposal from David Hay on 9 August 2016.
The long list
[32] The Commission then went into a period of extensive information gathering and consultation undertaking public meetings, workshops and surveys. It released a “long list” of reasonably practicable options for reorganisation of local government in the affected area.
25 Local Government Act 2002, sch 3, cl 9.
26 Schedule 3, cl 9(2)(d).
27 On 29 May 2016.
[33] Following the development of the long list, the Commission appointed the consultants Morrison Lowe (ML) to assist it. Further consultation and information gathering followed. ML undertook the analysis of the options and produced a report entitled “Auckland Options Assessment”. A draft of the report was released to the 39 alternative applicants/proposers as well as the local authorities on 20 July 2017. Feedback on the report was sought by way of submissions and a meeting with relevant parties.
[34] A peer review panel and independent consultancy firm were appointed to undertake a peer review and a technical review of the ML report following feedback. A further survey on community support for various options for reorganisation was undertaken by UMR (an independent research company for the Commission). On 20 October 2017, the ML report was updated in light of feedback. The Commission also finalised the Communities of Interest studies for Rodney and Waiheke areas.
“Preferred option” decision
[35] In reaching its final decision the Commission considered reports from staff and consultants as to the reasonably practicable and preferred options. It met to discuss and make its decisions on 10 November 2017. On 15 November 2017, Northern Action sent a financial benchmarking model on North Rodney to the Commission (the APR report). The Commission advised that it was not prepared to consider it as Northern Action had missed deadlines for the provision of further information.
[36] On 30 November 2017, the Commission gave notice of its decision that its preferred option for local government in the affected area was the existing local government arrangements in Auckland in other words the status quo.
[37] The Commission in its reasons for its decision said it rejected a North Rodney Unitary Authority as it did not meet the statutory tests for reasonably practicable options as required under the Local Government Act 2002 because:
(a) It would not provide a region that was appropriate for the efficient performance of the proposed District Council’s role; and
(b) It would not have the resources necessary to carry out effectively its responsibilities, duties and powers.
[38] The Commission was satisfied that the existing local government arrangement was the preferred option. It would best promote the purpose of local government and facilitate improved economic performance in the affected area of the Auckland Council.
Is the “affected area” declaration a decision for the purposes of appeal?
[39] The Commission declared the Auckland Council area to be the affected area for the purposes of the application on 14 April 2016. Northern Action did not file an appeal against the declaration at that time.
[40] Northern Action says it does not now appeal the declaration but says the affected area decision/declaration forms part of the Commission’s final preferred option decision of 30 November 2017.
[41] Northern Action submits the affected area declaration was an important decision. Therefore it should be given some leniency in relation to being able to include it in the present appeal. Northern Action says it did not challenge the affected area decision at the time it was made because it would not have needed to appeal it if the final reorganisation decision favoured a Rodney Unitary Council or similar arrangement. Therefore, it says it could not have known whether it wanted to appeal the affected area decision until after the final preferred option decision had been made.
[42] Mr Foster for Northern Action said that if the Commission’s every decision needed to be appealed at the time, it could manipulate the delivery of its preliminary decisions to ensure they were all out of time for appeal by the time interested parties knew about them. He argued that all the decisions made by the Commission leading to the final decision formed a “stream” informing the final “preferred option” decision. All prior decisions he said were simply steps on the way, and must therefore be part of the final decision rather than separate stand-alone decisions. Mr Foster said it was reasonable that appeal rights should only attach the final decision.
[43] Northern Action noted that the affected area declaration was also relevant to other grounds of its appeal. For instance the affected area decision meant the Commission could treat the Our Waiheke application (filed before the Northern Action reorganisation application) as an alternative application to that of Northern Action. Northern Action submitted this was wrong as each application for reorganisation should be assessed separately.
[44] The Commission responds that the affected area and preferred option decisions were separate and the time for appealing the affected area declaration has long since expired.28
[45] The Commission says it relied throughout its inquiry on its declaration as to the affected area. It says it is simply too late now to challenge that earlier decision as to do so would cause substantial prejudice to the Commission given its reliance on the declaration. It says that for the period following the affected area declaration in April 2016 to the making of the final preferred option decision in November 2017 it worked on the basis that the Auckland Council district was the affected area.
Analysis
[46] The appeal provisions in the Act allow a party to the proceedings before the Commission to appeal if “... dissatisfied with a decision of the Commission in the proceedings as being erroneous in law ...”.29 Therefore, a decision made in the course of the overall proceedings may be a decision giving rise to a right of appeal.30
[47] In Australian Broadcasting Tribunal v Bond the Australian High Court considered the meaning of “decision”.31 It said:32
The word has a variety of potential meanings. As Deane J noted in Director- General of Social Services v Chaney [[1980] FCA 87; [1980] FCA 87; (1980 47 FLR 80, at p
100; [1980] FCA 87; 31 ALR 571, at p 590], in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination effectively resolving an actual substantive issue. Even if it has
28 Local Government Act 2002, sch 5, cl 2.
29 Schedule 5, cl 2(1).
30 Schedule 5, cl 2(1).
31 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321.
32 At 335.
that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand...
[48] It further said:33
... That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision though an intermediate decision, might accurately be described as a decision under an enactment.
[49] As that passage indicates, whether or not the affected area declaration was a decision giving rise to appeal rights is a matter of interpretation of the enactment.
[50] The dictionary definition of a “decision” includes “a conclusion or resolution reached, especially as to future action, after consideration ...”.34 A decision requires some finality; it involves a definitive choice among possibilities.35 In the context of resource management law, it is accepted that even an interim decision, as long as it is perfected, may be a decision for the purposes of review.36
[51] The declaration by the Commission as to “affected area” has the hallmarks of a decision. First, the Commission had to reach a concluded view in order to be satisfied that Auckland Council would be materially affected (in the required manner) by the reorganisation proposal.37 Secondly, the decision was announced and published. The Commission had to give notice of its determination.38 Thirdly, based on the declaration it was required to establish a process for undertaking the reorganisation inquiry taking into account the various communities in the affected area and then implement that process. It relied on the affected area declaration in order to consult, seek advice, brief experts and take the necessary actions to reach the preferred option decision. The decision as to the affected area was therefore determinative. It
33 At 337.
35 Brookers Resource Management (looseleaf ed, Thomson Reuters) at A299.20.
36 At A299.20.
37 Local Government Act 2002, sch 3, cl 2 definition of “affected area” and cl 8.
38 Schedule 3, cl 9.
disposed of the matter at hand for the purposes of the inquiry. It resolved a substantive issue under the legislation, in the sense that once it was made it formed the basis for the next steps in the process and could not be revisited.
[52] The Commission had to publish its decision. The interested parties were notified of the decision and the reasons for it. They had had the opportunity to make submissions before the decision was made. Any party with grounds to do so could appeal. Mr Foster’s argument that the Commission could manipulate the timing decisions so they were out of time for appeal is not valid. The decision had to be announced. The Commission could not keep it under wraps until the appeal time expired and then argue an appellant was out of time.
[53] Further Northern Action (and others) would have been aware of the future implications and effects of the declaration on the Commission’s process as well as how it would affect the assessment of alternative applications. If it considered it had grounds to appeal on an issue of law it could have done so within the time for appeal. I note in passing that Northern Action was familiar with the appeal processes under the legislature having brought one successful appeal.
[54] That being said, Mr Foster’s argument that every decision in the “stream” leading to a final preferred option determination could not be an appealable decision is valid to some extent. Not every decision made in the course of the inquiry proceedings will have sufficient finality or determinative quality to be a decision which is appealable.
[55] It is a matter of interpretation as to which decisions are appealable. Most of the steps requiring decisions in the course of the inquiry will not have the necessary hallmarks to be a decision in the formal sense. Mr Foster gives the example of early discussions in which the Commission suggested it enter a Memorandum of Understanding with Northern Action as to the process of engagement and the Commission’s subsequent rejection of this arrangement. He also refers to steps such as settling the timing and rejecting Northern Action’s late submission on financial viability (the APR report). These are all steps in the process which are unlikely to be decisions for the purposes of appeal under the Act. If all such steps were appealable
decisions the Commission’s assessment process could be delayed and fragmented and undermine the ability of the Commission to conduct efficient inquiries.
[56] I conclude that the affected area declaration was a decision that gave rise to a separate right of appeal.
Application for extension of time to appeal
[57] Northern Action had a month after the affected area decision was made to appeal that decision.39 Any appeal is therefore out of time. Northern Action indicated that if the declaration was held to be an appealable decision then it seeks an extension of time under the Act to appeal.40 This is opposed by the Commission.
[58] When assessing whether to extend time, relevant considerations are the reasons for the delay, the length of the delay and the extent of any prejudice to other parties.
The overall test is whether the extension is in the interests of justice.41
[59] Northern Action says that the extension of time for appeal is justified as it did not know at the time of the affected area decision it would need to appeal it as it did not know what the final preferred option decision would be. It says its appeal would be meritorious as the meaning of “materially affected” insofar as it relates to the effect of the local government reorganisation proposal on Auckland Council is a matter which is an important issue and has not yet been decided by a Court in the context of this legislation.
[60] If an appeal had been lodged against the declaration the Commission could have taken steps to manage its risk of appeal. This may have meant it held up the assessment process pending the outcome of that appeal. Instead, it expended considerable resources and time on a process which was focussed on the affected area. In order to efficiently deal with the substantial inquiry triggered by the application for reorganisation, the Commission had to rely on the declaration. There would be
39 Local Government Act 2002, sch 5, cl 4(1).
40 Schedule 5, cl 9.
substantial prejudice accruing to the Commission if an extension of time for appeal against the affected area decision was granted.
[61] I am of the view in this case that the interests of justice do not favour an extension being granted. The delay has been substantial (one and a half years), the reason put forward for the delay is not compelling and the extent of the prejudice to the Commission due to the delay is substantial.
[62] Accordingly, the application for an extension of time for appeal against the affected area declaration is dismissed.
What material should the Court have for a proper determination of the points of law in issue?
[63] The provisions relating to preliminary orders are set out in cl 5 of sch 5 as follows:
5 Preliminary orders
(1) The High Court may, of its own motion or on the application of a party to the appeal, make 1 or more of the following orders:
(a) an order directing the Commission to lodge with the Registrar of the High Court in Wellington a document or other written material or an exhibit in the possession or custody of the Commission:
...
(2) An application under subclause (1) must,—
(a) in the case of the appellant, be made within 1 month after the date of the lodging of the notice of appeal; or
...
(3) The High Court may make an order under subclause (1)—
(a) only if it is satisfied that a proper determination of the point of law in issue so requires; and
(b) subject to any conditions that the High Court thinks fit.
[64] The applications for the preliminary orders sought are out of time.42 Nevertheless, the Commission did not oppose the applications. An extension was granted by this Court on 29 March 2018.43
[65] The Court may also seek a report as to findings of fact, reasons or considerations to which the Commission had regard but which are not set out fully in its decision.44 Preliminary orders are designed to ensure that the issues raised on appeal are kept within the limited rights of appeal.45 The focus is not what on the parties may file for the appeal but wholly on what the Commission should file to assist the Court.
[66] Similar provisions appear in the Resource Management Act 1991 in relation to appeals to the High Court from the Environment Court.46 The nature of the inquiry of the Commission is different to that of the Environment Court nevertheless, observations in relation to the information required for the Court to be “satisfied that a proper determination of a [question] of law so requires ...”47 are useful in considering the meaning of the words in the present case.
[67] The onus is on the applicant seeking the direction to satisfy the restrictive requirements of the subsection.48 In Marris the applicant had sought orders that the decision maker lodge all the documents it had relating to the decision under appeal. Greig J commented:49
... the High Court may make an order ... only if it is satisfied that a proper determination of the point of law in issue so requires; ...
That subsection is of considerable importance. It underlines the restriction under which the Court is to exercise its jurisdiction to direct the furnishing of documentary and other material from the Tribunal. It underlines the substance
43 Local Government Act 2002, sch 5, cl 9.
44 Schedule 5, cl 5(1).
45 The preliminary order procedure overrides the provisions of sch 6 of the High Court concerning the filing and service of common bundles: Auckland Regional Council v Sea Tow Ltd HC Auckland CIV-2006-404-3544, 8 September 2006 at [19].
46 Resource Management Act 1991, s 303(3).
47 Section s 303(3).
48 Marris v Ministry of Works and Development [1987] 1 NZLR 125 at 127. This decision was in reference to similar provisions in the predecessor of the Resource Management Act 1991, the Town and Country Planning Act 1977.
49 At 127.
of the appeal which is on a point of law only. Moreover, it makes it plain that unless such an order is required for the proper determination of the point of law then there should be no direction for further material. The inevitable result of that provision is that the party, in this case the appellant, seeking the direction must have some onus upon it to satisfy the restrictive requirement set out in the subsection.
That restrictive requirement is, I think, part of a strict regime which provides, under limitations, a right of appeal. The reference I have already made to the particular specificity of the formulation of the grounds of appeal is, likewise, a part of that strict regime.
[68] The Court noted that an issue about the facts in the evidence and the inferences and conclusions drawn from them by the decision maker may sometimes amount to a matter of law.50
[69] The Court went on to say:51
It is not, however, every allegation of a lack of factual basis or incorrect or inappropriate inferences or conclusions from the evidence which will turn the issue of fact into a question of law. In other words, it is not sufficient merely to allege that there is no sufficient evidence as has been done in the case, to raise the point of law. In this case there is no particularity as to the matters of fact or the shortcomings as to the evidence or the Tribunal’s conclusions in the notice of appeal.
[70] In that case the Judge was not satisfied that the matters raised in the notice of appeal amounted to points of law nor was he satisfied the material in issue should be provided.52
[71] In Maltby Chilwell J noted that the Court should not hesitate to decline an application for preliminary orders on the grounds that there is no point of law in issue.53 However, His Honour noted the Court should take care in doing so as a negative finding on an inquiry to the point of law at this stage may be tantamount to a ruling of no case to answer. In that case, the Judge was faced with substantial material. The case took 10 days to hear and had 27 witnesses of whom 18 were experts. The Judge said the notice of appeal and relevant decision were adequate for the Court. No further material was required in the circumstances. The appellants had not satisfied
50 At 127.
51 At 127.
52 at 127 – 128.
53 Maltby v Whitford Residents and Ratepayers Association Inc [1987] 2 NZLR 501 at 503.
him that it was necessary to consider the record beyond the decisions and the submissions made.
[72] In Meadowbank Residence Association Inc Justice Tompkins analysed the grounds of appeal in order to satisfy himself that the making of the preliminary order might materially assist in the disposal of the hearing of the appeal.54 In relation to matters of inferences drawn by the Tribunal based on all the circumstances taken from the relevant evidence, Tompkins J commented that it was difficult to see how the correctness or otherwise of that inference could amount to a question of law.55 He further noted that the Tribunal’s decision in that case was a conclusion that was “... particularly within the expertise and experience of a specialised tribunal familiar with the workings of local bodies in areas such as roading and traffic congestion.”56
[73] In Manos the appellants had lodged a Notice of Appeal alleging seven “questions of law” and listed 46 instances divided into several sub paragraphs under those questions.57 The Judge noted that errors of law, included an allegation that the decision maker reached a conclusion without any evidence to support it or made a decision which on the evidence before it no reasonable tribunal could reasonably make.58 He said it was important to keep in mind that only a limited appeal was given under the relevant legislation, ie a question of law. He noted the requirements for lodging material with the court were restricted to ensure that the issues on appeal were kept within the bounds specified by the appeal right.59 The Judge added:60
... care must be taken to avoid an invitation to appellants to widen the scope of the appeal authorised by statute by unnecessarily widening the material before the court on appeal.
[74] The Judge was concerned that despite the detail in the Notice of Appeal there were no apparent questions of law. He said:61
55 At 7.
56 At 7.
57 Manos v Waitakere City Council (1993) 2 NZRMA 622 (HC).
58 At 626.
59 At 626.
60 At 626.
61 At 626 – 627.
... I am unable to glean any particular criteria or principle which the appellant submit was not applied or was incorrectly applied. What is apparent is that the appellants wish to challenge findings of fact referred to in the Tribunal’s decision which are matters of fact for the exclusive determination of the Tribunal.
[75] Northern Action approached this application on the basis that the Commission needed to be transparent and provide all information it held to Northern Action because of its responsibilities under s 24AA of the Act. This provides:
24AA Purpose of local government reorganisation
The purpose of the local government reorganisation provisions of this Act is to improve the effectiveness and efficiency of local government by—
(a) providing communities with the opportunity to initiate, and participate in considering, alternative local government arrangements for their area; and
(b) requiring the Commission, in consultation with communities, to identify, develop, and implement in a timely manner the option that best promotes good local government.
[76] Northern Action’s approach focuses on the obligations of the Commission in executing its statutory functions. The Commission no doubt with that in mind provided extensive amounts of material to Northern Action by way of voluntary disclosure and that material has been lodged in the court.
[77] However, the purpose of the preliminary orders procedure is different. It is so the court has before it the material it requires required to assist it in the proper determination of the points of law raised. The focus is on how the material will assist the court in its consideration of those issues. The appeal does not allow for a wide- ranging examination of the merits of the appeal. If the material sought is not required for a proper determination of the points of law the Court will be burdened with irrelevant argument and documentation.62 Northern Action’s general approach does not assist in ascertaining what material should be lodged for the purposes of the appeal.
62 Auckland Regional Council v Sea Tow Ltd, above n 45, at [19].
What has been provided to the Court
[78] The process undertaken by the Commission is described by Ms Mangin, a senior advisor to the Commission, as follows:
21. I was a senior advisor to the Commission in relation to the Decision under appeal. To the extent it may be of assistance to the Court, I explain below the suite of documents that make up the Commission’s November 2017 Decision under appeal (all of which were filed with the Court following NAG’s appeal in line with the requirements under Schedule 5, clause 4 of the Act, and comprise the Auckland Reorganisation Decision bundle before the Court):
(a) The Decision consisted of:
(i) a brief formal “decision” document (tab 1);
(ii) minutes of the meeting which the Decision was made (tab 2); and
(iii) a “Decision paper” (tab 3) along with various appendices (tabs 4 to 8);
(b) while the Decision paper at tab 3 is presented as an ‘advice paper’, it was developed as a series of drafts following extensive discussion and input by Commissioners. The final paper was reviewed, considered, deliberated on and agreed on by all Commissioners with a view to being used as the reasons paper for the Decision;
(c) It was considered at the time of publication in November 2017 whether the “Decision paper” should be re-drafted in the format of a more traditional ‘decision paper’. In the end, it was decided that the substantive content/reasons would have remained the same, so representing the document in another way was considered unnecessary.
[79] The Commission has lodged the final reorganisation decision with the Court as it is required to under the Act.63 It is made up of a short document entitled “Local Government Reorganisation in Auckland” which sets out the Commission’s reasons for its determination that the preferred option for Local Government in the Auckland affected area is the existing Local Government arrangements in Auckland. Attached and part of the decision are the minutes of the relevant meeting of the Commission’s Board of 10 November 2017. At the meeting it considered a report dated 3 November 2017 prepared by the Local Government Commission Lead Advisor, Auckland entitled “Auckland Reorganisation Process: decision on the reasonably practicable
63 Local Government Act 2002, sch 5, cl 4(5).
options and the preferred option”. This is the “reasons” paper referred to by Ms Mangin. Attached to that report are:
(a) Appendix A – comment on financial analysis.
(b) Appendix B – Morrison Low report entitled Local Government Commission Auckland Reorganisation Process: Auckland Options Assessment 20 October 2017.
(c) Appendix C – Peer Review Panel Minutes.
(d) Community of Interest Study – Rodney dated November 2017.
(e) Community of Interest Study – Waiheke dated November 2017.
(f) Community Support Initiative Report, Department of Internal Affairs dated October 2017.
[80] The Commission says it aims for its decision papers to provide a complete analysis as to the reasons for its decisions. It says this provides transparency in relation to its analysis and so the decision can be understood. In addition it provides the material for any appeals and questions of law that may arise.
[81] Two further volumes of supplementary material in relation to the Reorganisation Decision have been lodged. Volume 1 includes Northern Action’s application dated November 2013 as well as minutes and press releases on the Commission’s decision (subsequently appealed) to decline that application; its decision to assess the application; the Waiheke application and documents relating to the decision to assess that application as well as the affected area decision and relevant summary of reasons, minutes and press release.
[82] The Auckland Reorganisation Decision: Supplementary Bundle Volume 2 includes:
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Invitation for alternative applications in the Auckland Council area
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Press release invitation for alternative applications.
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20 April 2016
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Public Notice on the invitation for alternative applications.
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Undated
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Local Government Commission Decision to treat Our Waiheke application as an
alternative application
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Local Government Commission meeting minutes.
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29 May 2016
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Press release on decision to treat Our Waikene as an alternative
application.
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30 May 2016
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Northern Action Group Supplementary Proposal
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Northern Action Group Supplementary Proposal on the formation of North
Rodney Unitary Council.
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21 June 2016
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Redacted submissions following the call for alternative applications for
local government reorganisation.
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June 2016
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Local Government Commission notification of Auckland community engagement
programme
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Press release seeking Auckland community views.
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6 September 2016
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Example of communications email to active participants and examples of
North Rodney and Waiheke public engagement notice and pamphlet.
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Undated
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Summary of feedback “Community Engagement: Local Government in
Auckland”.
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March 2017
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MorrisonLow Report
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MorrisonLow Report “Auckland reorganisation process: Auckland Options
Assessment”.
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August 2017
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[83] In addition the Commission has made voluntary disclosure comprising material contained in three further large volumes lodged with the Court. Parts of the material lodged has been redacted for various reasons. No issue has been taken with the redaction.
Further material sought by Northern Action
[84] Three primary orders were originally sought by Northern Action:
(a) Order 1: “a full record of documents and information received by the commission when it made its preliminary determination of the affected area issues”.
(b) Order 2:64
64 Referred to as “Preliminary Order 3(a)”.
(i) All correspondence/communications between the commission and Auckland Council (including officials and elected members) relevant to the application;
(ii) All correspondence and other communications between the Commission and Morrison Low relevant to the Application;
(iii) All communications, texts or emails, between the Commission executives and any other parties, relevant to the application.
(c) Order 3:65 a report recording findings of fact, and considerations other than findings of fact, and reasons or considerations to which it had regard that are not set out or fully set out in the decision, including (without limitation) in relation to 39 specified issues and matters listed in the application.
[85] The categories of documents sought have been refined since. The Commission took the view that it would assist in the provision of as much material and information as possible. To that end, it worked with Mr Foster and Mr Townsend before the hearing. At the hearing, the list was further narrowed. However, some areas of dispute remain.
[86] The Commission is concerned that if this disputed material is lodged the focus will be on the merits of the decision and the appeal will take considerably longer than it should.
[87] The documents which remain in dispute for consideration by me are: 66
(a) Documents held by the Commission regarding its communications with its experts.
65 Referred to as “Preliminary Order 3(b)”.
66 Email recording agreement between Northern Action and the Commission dated 28 June 2018. .
(b) Documents held by the Commission regarding its communications with Auckland Council (beyond documents already provided).
[88] In addition Northern Action sought documents relating to the declaration by the Commission on the affected area. As I have determined that the declaration was a separate decision and outside the time for appeal, this category of documents is not relevant and does not require further consideration.
[89] Although lengthy, the grounds of appeal fall into four categories. I consider each of those to ascertain whether further material should be lodged by the Commission:
(a) General failure to comply with legislation: the first category alleges the Commission has failed to comply with various sections of the Act. This includes material relating to the affected area decision which I have dealt with above. The other points in this category include failing to comply with the purpose of local government (democratic decision making by communities and provision of good quality services),67 failing to provide opportunities to communities to initiate and participate in consideration of alternative local government arrangements and failing to consult and engage with the community, particularly with respect to determining all reasonably practicable options for local government.68 These general points do not raise specific questions of law. They are therefore not directly relevant to the assessment of whether the material sought is required for a proper determination of the points of law in issue.
(b) Allowing non-complying alternative proposals: This ground alleges the Commission wrongly allowed non-complying proposals to be evaluated as alternative proposals. Any error of law in relation to this ground of appeal should be dealt with on the basis of Reorganisation Decision and supporting material already lodged. The alternative
67 Local Government Act 2002, s 10.
68 Section 24AA.
proposals have been lodged.69 No further material is necessary for the Court to properly determine points of law under this head.
(c) Errors in identifying reasonably practicable options: This ground alleges that the Commission made errors in identifying the reasonably practicable options for local government organisations under cl 11(2) of sch 3 of the Act by failing to include Northern Action’s original application which instigated the reorganisation process, making decisions on financial viability based on faulty information (from Auckland Council) and assumptions without empirical evidence and support and eliminating possible preferred options for consideration. The material relied upon by the Commission in reaching its decision is contained in the reorganisation decision and supporting documents already lodged. This includes the ML report which sets out and evaluates the reasonably practicable options. No further material is required for properly determining a point of law under this head.
(d) Failing to have regard to the benefits of other options: this ground alleges the Commission failed to properly consider if a North Rodney unitary council would have sufficient resources, assessing efficient performance of a unitary council without empirical evidence and failing to recognise the proposed North Rodney unitary council could deal with flooding and water management in the area. This ground as presently argued is directed at the merits of the Commission’s decision. An error of law will be present if there was no proper evidence on which the Commission could reasonably have reached its decision. The Reorganisation Decision and supporting material is sufficient for the Court to properly determine any question of law arising under this head.
(e) Not considering the APR report filed by Northern Action after the deadline for information set by the Commission: this ground may raise an issue of law based on unfairness (in the legal sense) by the
69 Auckland Reorganisation Decision: Supplementary Vol 2.
Commission. I am of the view that a report by the Commission on its process and reasons for the rejection would assist the Court under this head. I deal with this below.
[90] I now consider the specific categories of document which remain in dispute.
Communications with Commission’s experts and advisors
[91] Northern Action says the Commission has offered “no reason why” it should not provide its communications with its experts, in particular ML, to the Court.
[92] The Commission on the other hand says that the advice of its experts and advisors should be confidential to it. The exchanges with them, need to be robust. They should be, the Commission says, in the same category as its internal communications with staff. Those internal communications are no longer sought.
[93] The Commission says that if communications with its experts and advisors were subject to disclosure it would inhibit debate. In addition, if the communications were released without a full explanation of the context in which they were made, it would provide only a partial picture. The Commission also noted that the exchanges formed only one input. They do not cover the non-documentary exchanges, discussions and deliberations which were also taking place. Further, putting together all of the contextual information even if possible, would be an enormous task for the Commission.
[94] The Commission argues that the decision in Air New Zealand v Commerce Commission supports that its communications with its experts should not be discoverable: 70
[28] Wild J at para [46] said he saw nothing wrong with the commission seeking further advice from its experts, post-conference, on the issues the commission had invited views upon and received submissions and conferred about. He rejected the submission that the position of the experts was analogous to that of an expert witness giving further evidence to the Judge after the hearing, in the absence of other parties. He said they were expert advisers on issues coming within their expertise who advised the commission in the light of submissions made and views expressed
70 Air New Zealand v Commerce Commission (2004) 3 NZLR 550.
during the conference. In refusing orders for disclosure of post-conference material, he concluded at para [70]:
“[a] Sound public administration demands that the Commission has the ability to complete the deliberative part of its inquiry process without intervention by the Court. As Ms Scholtens put it:
‘There must come a time when the Commission can say “enough”; we have heard your views and we now want to consider our final position in light of everything we know.’
In evaluating the submissions and information received from interested persons, the Commission must be able to clarify matters for itself, including by obtaining expert advice. If it is required to test on interested persons any change in its view or refining of its position, the Commission’s inquiry will indeed never end. There is also a recognised public interest in the confidentiality of the deliberative process of the Commission and similar bodies. The dynamics of how the Commission reaches its conclusions and recommendation (as opposed to the reasons for them) should not be intruded upon: ENZA Ltd v Apple and Pear Export Permits Committee [2001] 3 NZLR 456 (CA) at p 461.”
...
[32] Nor do I see it as adding to the case for disclosure of other post- conference communications between them and the commission. Those communications took place in the course of the commission deliberating on the material before it and reaching and formulating a decision. It is fundamental that, except in special circumstances, a tribunal cannot be required to disclose evidence of its deliberative process: ENZA Ltd v Apple and Pear Export Permits Committee [2001] 3 NZLR 456 (CA); Comalco New Zealand Ltd v Broadcasting Standards Authority [1995] 3 NZLR 469. A tribunal cannot be required to give evidence of its thinking processes. There is a public interest in preserving the privacy of what is done in the deliberative stage by both Courts and tribunals. The public interest goes to preserving public confidence in such bodies and there is a real danger of damaging misconceptions if disclosure occurs – ENZA at para [21] and Comalco at p 473.
...
[36] I accept also that the disclosure of communications between commission staff and its experts would adversely affect the commission’s ability to make decisions in an efficient and timely manner. This is referred to by Ms Paula Rebstock, the chair of the commission, in an affidavit filed in opposition to the application. She deposes that as part of the decision-making process, the commission encourages the free and frank exchange of views by the commission members, its staff and external advisers. The disclosure of internal communications would seriously hamper the free flow of views within the commission and between the commission and external expert advisers. It would also deter the commission from circulating draft advices and reports, a process it adopts in order to assist it to meet the strict deadlines imposed by statute.
[95] While this is not an application for discovery nevertheless I consider the principles set out in Air New Zealand apply equally to this case.
[96] The Commission is entitled to seek advice from experts and advisors. It may engage consultants to assist it to carry out its functions.71 They are in a similar position in terms of providing advice and expertise as the internal staff of the Commission.72
[97] The Commission must be able to have frank and robust exchanges with its experts and advisors in considering and evaluating the submissions and information received from the parties participating in the process. It must be able to do that without concern that these exchanges may not be confidential.
[98] The Court in Air New Zealand also pointed to the recognised public interest in the confidentiality of the deliberative process. The Court said that the dynamics of how the Commerce Commission reached its conclusions and recommendations (as opposed to its reasons) should not be intruded upon. That applies equally here. There is public interest in preserving the privacy of what is done in the internal processes and in the deliberative stage and there is a real danger of damaging misconceptions if disclosure occurs.
[99] The Commission, if it were required to make every exchange with its experts and advisors available, would be unable to make decisions in an efficient and timely manner. This is particularly true of a body such as the Commission which comprises members appointed for their expertise, and is reliant on a small number of staff as well as experts and external advisers to assist it, to test ideas and obtain information. The disclosure of communications between those parties, would seriously hamper the free flow of views both within the Commission and with its external experts and advisors.
[100] The report of ML has been lodged in the materials supporting the final decision of the Commission. The ML report has also been technically and peer reviewed. An argument on an issue of law arising in relation to ML’s advice can be dealt by reference to the report which the Commission had before it.
71 Local Government Act 2002, sch 4, cl 16.
[101] The Commission’s communications with its experts advisors are not required for a proper determination of a point of law in this appeal.
Material provided by and communications with Auckland City Council
[102] In its submissions, Northern Action was not specific in relation to how the Commission’s communications with Auckland Council would assist in the proper determination of the points of law in issue.
[103] Mr Foster said that a full record of communications between Auckland Council and the Commission might show “the Commission ignored or rejected material submitted by the appellant, or that the Commission was unduly deferential to AC [Auckland Council] and/or took into account matters that it should not have”.
[104] In terms of an issue of law this submission may go to allegations of bias or predetermination in favour of Auckland Council. The allegation of bias is “parked” for the present purposes therefore even if further material is required by the Court on that ground, it is not necessary for now. I therefore put that ground to one side.
[105] The Commission further resists disclosing this category of documentation on the basis some material is commercially sensitive (such as material relating to Auckland Council’s suppliers).
[106] The Commission opposed the provision of the material beyond what is already provided on the basis that the raw summarised or aggregated data and commercially sensitive information was not before the Commission. It was before the commission in an analysed form as part of the reorganisation decision material which has been lodged. This includes, in particular the ML report which had been peer reviewed and technically reviewed to test its assumptions and financial workings.
[107] I do not consider the communications or further material relating to Auckland Council will assist the Court in a proper determination of the points of law in issue in the appeal as framed.
New evidence on appeal
[108] Northern Action had also requested the Commission to lodge copies of communications with other interested parties including Northern Action. Mr Townson exhibited a number of documents to his affidavit. He said Northern Action wished to produce these as evidence in the appeal if the Commission would not lodge them with the Court.
[109] Communications supplied piecemeal without context or explanation would provide only a partial picture. My review of the documents produced by Mr Townson confirms they would not assist the Court in the proper determination of any point of law. They would rather invite a reassessment of the merits of the reorganisation proposals.
[110] These exhibits include correspondence and drafts of the proposed Memorandum of Understanding (MOU) between Northern Action and the Commission. This material comprises 8 of the 22 documents attached to Mr Townson’s affidavit. The MOU was never finalised. The communications and draft MOUs is not required for a proper determination of any points of law in issue.
[111] Other documents Northern Action seeks to introduce include items of correspondence between Northern Action and the Commission relating to the long list. At least one item is a communication internal to Northern Action which was not copied the Commission. The material is piecemeal and it is difficult to see how it will assist the Court in this appeal.
[112] The material also includes documents in relation to the Thames Coromandel Local Government model. Northern Action say that the Thames Coromandel model should have been used in the benchmarking exercise carried out by ML. The reorganisation decision materials already refer to that model and note that the Thames Coromandel District Council model was considered as a possible bench mark but rejected as not being typical for local authorities as proposed.73
73 Auckland Reorganisation Decision. Vol 1.
[113] Northern Action does not point to any issue of law in relation to the decision not to use the Thames Coromandel District Council as a benchmark. On the present formulation of the appeal, it is directed to the merits of the selection of the local government authority benchmarking models chosen. The introduction of this material would invite a detailed analysis of the technical matters which were considered by ML. Its report on these matters was relied upon by the Commission. That Report has been lodged. The lodging of the material relating to the Thames Coromandel District Council presentation would not assist the Court in the appeal on an issue of law.
[114] In any event it is rare to allow new evidence to be adduced in an appeal on issues of law. New evidence may be adduced if there are special reasons such as where material evidence which relates to matters arising in the appeal has come into existence or been located after the date of the decision.74
[115] There are no special reasons advanced here which would justify leave being granted to adduce this further evidence.
Reports
[116] The Commission prepared a Report dated 18 May 2018 produced as an exhibit to Ms Mangin’s affidavit. The Teport responds to questions put to it by Northern Action. The Commission notes that a number of the matters covered in the report it has provided are set out in the reorganisation decision.
[117] The Report provided by the Commission assists this Court by setting out the Commission’s approach and its process. It may assist the Court in the determination of the points of law in issue.
[118] The Court did not specify the content of the Report so it is not appropriate for orders to be made under cl 5(1)(a) or (b) of sch 5 of the Act which relate to reports on matters specified by the Court. However, as this Report is in the possession of the Commission an order may be made under cl 5(1)(a) of sch 5 of the Act for the Report to be lodged.
[119] Turning to the APR report, this was intended to rebut several points made in the ML report about the financial viability of a unitary council for the North Rodney area. It was submitted on 15 November 2017 and rejected by the Commission on 16 November 2017. This was primarily because the report was submitted subsequent to the imposed deadline of 8 September 2017 for the receipt of feedback on the ML report and for consideration by the Commission in its final decision. The deadline of 8 September 2017 was the result of extensions that had previously been granted from the original date of 18 August 2017. The updated version of the ML report was released on or about 20 October 2017
[120] Although enough information is before the Court to make it clear that a deadline was imposed and that the APR report was submitted after that deadline, what is presently unclear is the process by which the Commission set the deadlines of 18 August and subsequently 8 September 2017.
[121] It would be helpful to the Court for a report to be provided by the Commission specifying the process for setting the 18 August and 8 September 2017 deadlines. Further information should also be included in the report specifying the reasons for the refusal to extend the 8 September 2017 deadline when the APR report was received on 15 November 2017.75
Legal representation
[122] Mr Foster and Mr Townson who are not lawyers sought that an amicus curiae be appointed by the Court to represent Northern Action’s interests. Failing that they sought leave to continue to represent Northern Action.
[123] In the earlier appeal before this Court Northern Action was legally represented.76 However, when those arrangements came to an end Mr Foster said Northern Action had insufficient funds to pay for legal representation in this appeal.
75 Local Government Act 2002, sch 5, cl 5(1)(c).
76 Northern Action Inc v Local Government Commission, above n 2.
[124] Mr Foster, in his submissions, contemplated that counsel appointed would assist Northern Action in its appeal.
[125] The Court will not usually appoint a lawyer to act in the interests of a party. Counsel may be appointed to assist the Court (not a party) where there is a danger that an important and difficult point of law will require a determination without having been the focus of argument. Such appointment is entirely in the Court’s discretion. An amicus curie, or counsel to assist the Court, is appointed as an independent professional and does not act on instructions from a party.77 The amicus acts independently to bring arguments which are thought to be appropriate to be put before the Court.
[126] Doogue AJ refused to appoint counsel to assist Mr Erwood in Erwood v Holmes. He made the following comments:78
[24] Her Honour agreed with the observations of Fogarty J. He concluded that there was no public interest aspect which would justify the appointment of counsel assisting. He considered that the proper function of counsel assisting in the present proceedings would simply be to take a neutral position which would not, in any sense, be viewed as representing Mr Erwood.
[127] Counsel appears for the Commission. In this case I am of the view there are no matters of public importance or difficult points of law which would justify the appointment of an amicus to independently bring arguments before the Court.
[128] There are no grounds for the Court to appoint counsel to assist Northern Action.
[129] The application for appointment of an amicus curiae is dismissed.
Lay representation
[130] I now turn to application for leave for Mr Foster and Mr Townson to represent Northern Action. The Commission has indicated it will abide by the decision of the Court on this point.
77 Erwood v Holmes (amicus curiae) [2017] NZHC 1278 at [1] – [35].
78 Erwood v Holmes [2017] NZHC 556.
[131] Leave has been granted to date. The was to ensure preliminary matters were dealt with and the proceedings moved toward a hearing. Progress has occurred with the considerable assistance of counsel for the Commission.
[132] The Court has commented on a number of occasions it is well established that a company (or indeed an incorporated society which is a corporate body) has no right to be represented in court by other than a practising lawyer. Jagose J in Oceanic Palms Ltd v Kiwi Rail Ltd said:79
- [23] It is a well-established rule a company has no right to be represented in Court by other than a practising lawyer. The benefits of securing limited liability carry with them a range of obligations, of which the requirement to obtain legal representation in Court proceedings is one. The rule’s rationale is to ensure proceedings are appropriately pleaded and managed, including by counsel with primary obligations to this Court. That is in part to ensure the company’s and shareholders’ interests are properly represented in any decision to participate in litigation.
[24] The Court retains discretion nonetheless to allow non-lawyers to appear on behalf of companies in exceptional circumstances.80 But those exceptional circumstances are generally to be regarded:81
... as a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the court or where it would be unduly technical or burdensome to insist on counsel.
[133] The present appeal falls into none of those categories. The appeal requires careful consideration of the Commission’s decision and the legislative provisions involved. At present the grounds of appeal are wide.
[134] Mr Foster and Mr Townson have shown great courtesy and respect for the Court in their appearances before me. While Mr Foster and Mr Townson have cooperated to limit the scope of the appeal and this application, nevertheless the lack of assistance of counsel for the appellant has made these preliminary applications more time consuming than might have otherwise have been the case. This stems from the
79 Oceanic Palms Ltd v Kiwi Rail Ltd [2018] NZHC 679 at [23] and [24]. See also AAM v Agarbattiwala & Ors [2018] NZHC 1399.
80 Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 311. See also Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [25] – [34]; Kai Iwi Tavern Ltd v New Zealand Guardian Trust Company Ltd [2013] NZCA 199 at [6] – [8]; and Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd [2015] NZCA 491 at [8] – [10].
81 Re G J Mannix, above n 80, at 314.
lack of focus on what are questions of law as opposed to exploration of the merits of the Commission’s decision at this stage.
[135] The Commission noted that it was ready to assist Mr Foster and Mr Townson to navigate their way through the legislation and the requirements, but its ability to assist them in legal arguments is obviously limited.
[136] The application for leave for Mr Foster and Mr Townson to continue to represent Northern Action is declined.
Conclusion
[137] The material already lodged by the Commission with the Court is comprehensive. Northern Action has been candid in its submission that its objective is largely to search for evidence to support its suspicions that the Commission has been unduly influenced by the Auckland Council or its interests. It is also looking for the Commission to satisfy the Court that it had conducted its inquiry fairly and properly according to the legislation. To the extent allowed by an appeal on an issue of law this is appropriate. However, the Court cannot review the merits of the Local Government Commission decision.
[138] The Commission is a specialist body and when it comes to matters of fact, weight and inferences taken from the material before it. Its expertise is to be respected. That is not to say that an error of law may not be present. That determination is a matter for the hearing of the appeal when the issues will be fully argued. Any comments by me in relation to the grounds of appeal in this judgment are only for the purposes of these applications and are no reflection on the merits of the appeal.
[139] I am prepared to make a preliminary order that the material already filed in the court by the Commission should be lodged pursuant to cl (5)(1)(a) of sch 5 of the Act. I have allowed some latitude in that respect as a matter of expediency.
[140] Ms Mangin’s report assists the Court by setting out the Commission’s approach and process. I am satisfied it will assist the Court in the determination of points of law in issue and should be lodged pursuant to cl (5)(1)(a) of sch 5 of the Act.
Orders
[141] I make preliminary orders as follows:
(a) The material presently lodged by the Commission with the Registrar of the High Court in the High Court in Wellington is lodged for the purposes of cl 5(1)(a) of sch 5 of the Act.
(b) A Report by the Commission dated 15 May 2018 presently exhibited in response to questions by Northern Action be lodged with the Registrar of the High Court pursuant to cl 5(1)(c) of sch 5 of the Act;
(c) The Commission is to lodge a report with the Registrar of the High Court:
(i) Setting out the process followed by the Commission in determining its final date to accept submissions and information for the preferred option decision.
(ii) The reasons for the rejection of the report submitted by Northern Action (APR report) pursuant to cl 5(1)(b) and (c) of sch 5 of the Act.
[142] Leave for Messrs Foster and Townson to represent Northern on the appeal is declined.
[143] Leave to appeal the “affected area” declaration/decision is declined.
Costs
[144] The Commission indicated it did not intend to pursue costs at this stage. Northern Action indicated it had incurred no costs.
[145] Accordingly, having noted those positions I will reserve the matter of costs to be dealt with at a later date if necessary.
Leave
[146] Leave is reserved to either party to apply for any further directions. A further call of the appeal will be set for a time to be advised by the Registrar. The parties should file a joint memorandum seven days before that call covering any further matters to be dealt with before the hearing of the appeal and arrangements for the appeal hearing including a time estimate.
Grice J
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