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High Court of New Zealand Decisions |
Last Updated: 16 March 2020
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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
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CIV-2019-419-173
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UNDER
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the Judicial Review Procedure Act 2016
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IN THE MATTER
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of an application for judicial review of a decision of the
Thames-Coromandel District Council
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BETWEEN
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HAURAKI COROMANDEL CLIMATE ACTION INCORPORATED
Applicant
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AND
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THAMES-COROMANDEL DISTRICT COUNCIL
Respondent
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Hearing:
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11 November 2019
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Appearances:
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D Salmon and A McDonald for the Applicant
D J Neutze and G E Hughes for the Respondent
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Judgment:
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9 March 2020
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JUDGMENT OF GAULT J
This judgment was delivered by me on 9 March 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
..........................................
Solicitors:
Mr D Salmon and Mr A McDonald, LeeSalmonLong, Auckland Mr D J Neutze and Mr G E Hughes, Brookfields, Auckland
HAURAKI COROMANDEL CLIMATE ACTION INCORPORATED v THAMES-COROMANDEL DISTRICT COUNCIL [2019] NZHC 444 [9 March 2020]
[1] Thames-Coromandel District Council (TCDC) applies to strike out an application for judicial review brought by Hauraki Coromandel Climate Action Incorporated (HCCA). In the alternative, TCDC seeks security for costs.
[2] HCCA’s application for judicial review relates to TCDC’s response to climate change. In particular, HCCA seeks judicial review of TCDC’s decision not to approve its mayor signing the Local Government Leaders’ Climate Change Declaration 2017 (Declaration) promulgated by Local Government New Zealand (LGNZ). HCCA claims that TCDC, in making the decision, erred in law by failing to consider relevant considerations and acted unreasonably.
Background
[3] In 2017 many mayors and chairs of City, District and Regional Councils signed the Declaration. The Declaration includes the following:
In 2015, Mayors and Chairs of New Zealand declared an urgent need for responsive leadership and a holistic approach to climate change. We, the Mayors and Chairs of 2017, wholeheartedly support that call for action.
...
We have come together, as a group of Mayors and Chairs representing local government from across New Zealand to:
We ask that the New Zealand Government make it a priority to develop and implement an ambitious transition plan for a low carbon and resilient New Zealand. We stress the benefits of early action to moderate the costs of adaptation to our communities. We are all too aware of challenges we face
shoring up infrastructure and managing insurance costs. These are serious financial considerations for councils and their communities.
...
Council Commitments
For our part we commit to:
...
Guiding Principles
The following principles provide guidance for decision making on climate change. These principles are based on established legal1 and moral obligations placed on Government when considering the current and future social, economic and environmental well-being of the communities they represent.
...
[4] The seven guiding principles are headed Precaution, Stewardship/Kaitiakitanga, Equity/Justice, Anticipation (thinking and acting long- term), Understanding, Co-operation and Resilience.
[5] On 19 March 2019 the mayor of TCDC provided a report for TCDC to consider signing the Declaration. The mayor stated:
In my view the Declaration is a potentially binding document ... Without a legal opinion there is no way to prove there is no commitment and obtaining a legal opinion is an unnecessary expense in this instance ...
The initiatives described in the Declaration ... have not yet been canvassed and therefore have unknown financial consequences. In fulfilling our fiduciary responsibilities the Council has to follow the decision-making provisions of the Local Government Act 2002 ...
While we have not signed the ... Declaration as a Council, we are already committed to working on many of the initiatives within the Declaration itself.
[6] The mayor proposed that TCDC:
[7] On 22 March 2019 the mayor emailed the chief executive of LGNZ asking if it had a legal opinion as to whether the Declaration was binding. The chief executive of LGNZ replied stating it was not binding. On 25 March 2019 the mayor emailed again stating that her understanding was the Declaration was a contract and a judge could well infer that by signing it, a commitment was made and it is binding. She said she was surprised by the chief executive’s reply.
[8] On 2 April 2019 the mayor’s report dated 19 March 2019 was tabled for consideration at a TCDC meeting. A councillor moved an alternate resolution that TCDC “approves the Mayor signing” the Declaration. That motion was lost (six to three).
[9] TCDC then resolved that it:
[10] HCCA was incorporated in early May 2019.
Statement of claim
[11] The statement of claim filed on 28 June 2019 pleads (among other things):
(a) that the Declaration records signatories’ commitments;
(b) the scientific consensus on climate change (in some detail);
(c) that the benefits of strong, immediate action on climate change outweigh the costs;
(d) that the Thames-Coromandel District will be significantly impacted by the effects of anthropogenic climate change;
(e) that TCDC has not adopted a climate change mitigation policy;
(f) that the mayor disputes and/or is sceptical of and/or does not understand the basic elements of the scientific consensus on the predicted impacts of anthropogenic climate change;
(g) that in preparing the report dated 19 March 2019, the mayor failed to understand or did not accept the scientific consensus on the predicted impacts of anthropogenic climate change;
(h) that the report proposed, in effect, that the Declaration should not be signed by TCDC;
(i) that TCDC did not consider any materials other than the report when deciding whether to sign the Declaration;
(j) that TCDC resolved by a majority (six to three) not to approve the signing of the Declaration; and
(k) that in making the decision, TCDC erred in law by failing to consider relevant considerations (including provisions of the Local Government Act 2002), and acted unreasonably.
Strike out
[12] Before discussing the competing arguments, I refer to the applicable legal principles which are not really in dispute.
Approach on strike out applications
[13] The approach on strike out applications on the ground of no reasonably arguable cause of action is well established.2 The Court proceeds on the assumption that the facts pleaded in the statement of claim are true. Before the Court may strike out proceedings, the causes of action must be so clearly untenable that they cannot possibly succeed. The jurisdiction is to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material.
[14] That is so in judicial review. Strike out applications in judicial review are unusual. However, there is no dispute that a judicial review proceeding can be struck out. That was confirmed by the Court of Appeal in Te Whakakitenga O Waikato v Martin.3
[15] I note that judicial review proceedings are subject to particular control under the Judicial Review Procedure Act 2016 (JRPA). Although it makes no difference in this case given the earlier direction of Downs J that the strike out application be heard before the substantive hearing, Cooke J has observed that under the JRPA (unlike the Judicature Amendment Act 1972) it may be that not all High Court Rules have automatic application.4 Instead, under the JRPA questions of procedure are regulated by the case management conference contemplated by s 13, which encompasses the
3 Te Whakakitenga O Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173 at [16].
orders that the Court can make under s 14. Strike out is not one of the orders listed in s 14. As the provisions of the Act would be expected to prevail over the High Court Rules if there was a conflict, the relevant High Court Rules may apply but subject to the Court’s control under ss 13 and 14. This approach is consistent with the general approach to judicial review procedure, and with the view expressed in earlier Court of Appeal decisions that the former s 10 (now ss 13 and 14) was to some extent intended to be a procedural code for judicial review.5 It allows judicial review proceedings to be managed in a case appropriate way. As Cooke J said, the better view may be that no party has the ability to apply to strike out a judicial review proceeding as of right. Without suggesting that leave to file is necessarily required, strike out applications in judicial review proceedings are ultimately subject to judicial control under ss 13 and 14.
[16] As Mr Salmon, counsel for HCCA, submitted, judicial review operates as a check on the exercise of public power and should be available to affected persons, including “watchdogs”, without undue hurdles.
Judicial review under the JRPA and at common law
[17] The JRPA provides a procedural framework for judicial review of the exercise of statutory powers, including a statutory power of decision. A statutory power of decision is a power conferred by any Act to make a decision deciding, or prescribing, or affecting:6
(a) the rights, powers, privileges, immunities, duties or liabilities of any person, or
(b) the eligibility of any person to receive, or to continue to receive, a benefit or licence, whether that person is legally entitled to it or not.
6 Section 4.
[18] The JRPA (which re-enacts Part 1 of the Judicature Amendment Act) does not derogate from the Court’s judicial review powers under the common law.7 While the modern view is that the Court has the power to review all exercises of public power whatever their source,8 the Court accepts that some exercises of public power are not suitable for judicial review because of their subject matter.9
The Declaration
[19] Mr Neutze, counsel for TCDC, submitted that its decision is not amenable to judicial review for two reasons relating to the nature and effect of the Declaration. First, he submitted that the Declaration is merely aspirational and does not contain binding commitments. While he acknowledged that the issue is whether TCDC’s decision, rather than the Declaration, is amenable to judicial review, he submitted that the aspirational non-binding nature of the Declaration is instructive.
[20] Mr Neutze referred to documents which he says are consistent with his submission that the signatories intended that the Declaration not create binding commitments. An email from the chief executive of LGNZ to TCDC’s mayor dated 22 March 2019 expressed the view that the Declaration does not create any legal obligation whatsoever on councils. Also, a media report dated 21 February 2019 indicated one signatory’s view that it is not a binding contract.
[21] Mr Neutze noted that if the Declaration does create binding commitments on councils, that will reinforce the mayor’s (and TCDC’s) view that it should not sign the Declaration, and queried whether the costs of signing may outweigh the benefit. He accepted this latter point would only be relevant to the question of relief.
[22] Mr Salmon submitted that the Declaration does involve “Council commitments”, as it states. He submitted the contrary view is a misunderstanding of the Declaration. Also, the mayor’s email reply to the chief executive of LGNZ doubts, and expresses surprise at, that contrary view. He also
7 Mercury Energy Ltd v Electricity Corp of NZ Ltd [1994] 2 NZLR 385 (PC) at 388.
9 Ririnui v Landcorp Farming Ltd at [89].
submitted that the email recently disclosed by TCDC suggests there may be further documents relevant to the issue of whether TCDC acted irrationally.
[23] I doubt whether the emails referred to would be admissible factual background in relation to the meaning and legal effect of the Declaration. Acknowledging it is not a commercial contract, the subjective views of signatories would not appear to be relevant, let alone the views of non-signatories.
[24] While the proper interpretation of an instrument such as the Declaration is a matter of law, and therefore HCCA’s pleading that the Declaration records signatories’ commitments need not be assumed to be true as a matter of law, I consider the Court should not determine the nature and effect of the Declaration – in contractual or public law / legitimate expectation terms – on this strike out application. At this stage, the Court does not have contemporaneous evidence providing an appreciation of the Declaration’s factual matrix – indeed this proceeding does not involve any signatories to the Declaration. There may be correspondence relevant to the factual background (rather than the 22 March 2019 email) that is admissible. As Mr Salmon submitted, caution should be exercised when considering strike out applications in judicial review.
[25] Secondly, Mr Neutze submitted the Declaration is signed by local government leaders, mayors and chairs, in their own capacity, not for and on behalf of their Councils. Therefore, it was the mayor’s decision whether to sign the Declaration and TCDC could not direct her to do so. TCDC was merely resolving not to recommend how she exercised her discretion.
[26] Mr Salmon submitted that the mayor has no independent power, and the resolution seeking to authorise the mayor to sign (which failed to pass) was directing the mayor to sign. She reported to TCDC to consider signing the Declaration. Mr Salmon submitted it is at least arguable that was a decision of TCDC.
[27] As Mr Neutze points out, the Declaration refers to mayors and chairs, and their signatures are identified by their names and Councils, but the signature blocks do not state “for and on behalf of” their respective Councils. However, there is some
ambiguity in the Declaration as other parts indicate they are signing on behalf of their Councils. For example, the Declaration states “We have come together, as a group of mayors and chairs representing local government from across New Zealand to ... outline key commitments our councils will take”. The commitments are in a section entitled “Council Commitments”. It is a Council-focused document. That was also reflected in the mayor’s own report to TCDC dated 19 March 2019 where she said “we have not signed the ... Declaration as a Council”.
[28] As Mr Salmon submitted, the role and powers of mayors and chairs is governed by the Local Government Act 2002. Under s 41, a regional council must have a governing body consisting of members elected in accordance with the Local Electoral Act 2001 and a chairperson elected by members of the regional council.10 A territorial authority must have a governing body consisting of members and a mayor elected in accordance with that Act.11 The role of a mayor is to provide leadership to the other members of the territorial authority and the people in the district of the territorial authority.12 Mayors have such a leadership role and certain specific powers of appointment but otherwise their role is as a member of the territorial authority.
[29] Recognising that the mayor may not have been able to bind TCDC without going through the processes in the Local Government Act, I consider it is at least arguable that in context the resolution, if passed, would have required rather than merely approved the mayor to sign the Declaration and that the mayor would have been signing for TCDC rather than in her own capacity. On that basis, Singh and Deliu, which involved recommendations rather than decisions, are distinguishable.13
Other grounds
[30] In terms of the JRPA, Mr Neutze accepted that the decision was one by a public body, but submitted it is not a “statutory power of decision”. The decision was merely not to “approve” the mayor signing the Declaration. Again, he submitted it was the
10 Local Government Act 2002, s 41(1).
11 Section 41(2).
12 Section 41A(1).
13 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 220, [2014] 3 NZLR 23; and Deliu v Executive Board of the New Zealand Law Society [2013] NZHC 2504, [2013] 3 NZLR 833.
mayor’s decision. Mr Neutze accepted that the Court has jurisdiction in relation to judicial review outside of the JRPA, but submitted that there is insufficient public interest or public consequences to found jurisdiction in this case.
[31] Mr Neutze acknowledged in oral submissions that if the Court did not determine that the Declaration was only aspirational or that it was the mayor’s decision whether to sign, his further argument that the application for judicial review could not succeed should be addressed at a substantive hearing. I consider that concession was properly made. There are competing considerations which are better assessed at the substantive application for judicial review, not determined on a strike out. On the one hand, TCDC’s decision arguably involves an exercise of public power on an issue of importance to the public. As Mr Salmon submitted, this is not a case involving consideration of whether the public power is essentially commercial, such as Lab Tests Auckland Ltd v Auckland District Health Board, which was not a strike out case.14
[32] On the other hand, Mr Salmon acknowledged the policy nature of the decision and that there may be an issue whether it is therefore justiciable (while noting that policy decisions can be justiciable, for example, on procedural grounds, and submitting that TCDC’s decision was binary and distinguishable from cases seeking to draw the Courts into the detail of a policy scheme, such as Curtis v Minister of Defence).15
[33] Whether the decision is suitable for judicial review will require an assessment of the decision in context with the benefit of a statement of defence scoping the issues and possibly limited discovery and/or evidence on TCDC’s decision-making process. At this stage, applying orthodox strike out principles, including assuming the facts pleaded in the statement of claim are true, it is arguable that the decision is amenable to judicial review. Leaving aside the pleaded scientific consensus on climate change (which HCCA does not expect TCDC would deny given the pleading reflects the conclusions in the Intergovernmental Panel on Climate Change (IPCC) reports that
14 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776. In Jones v Waitakere City Council HC Auckland CIV-2010-404-002338, 29 October 2010 at [24] MacKenzie J considered that such an analysis could not properly be carried out on the basis of the limited material which may be put before the Court on a strike out application.
15 Curtis v Minister of Defence [2002] NZCA 47; [2002] 2 NZLR 744 (CA) at [28].
New Zealand has ratified),16 the pleaded facts also include that TCDC has no climate change mitigation policy (albeit Mr Neutze submits the case is not about that), that when deciding whether to sign the Declaration TCDC did not consider any materials except the mayor’s report which proposed that the Declaration not be signed, and that the mayor failed to understand or did not accept the scientific consensus on the predicted impacts of anthropogenic climate change. The claim that TCDC’s decision involved a failure to take into account relevant considerations and/or was unreasonable, in the sense of irrational, is not so clearly untenable that it cannot possibly succeed.
[34] Given my conclusion at this strike out stage, I say no more about whether the subject matter of the decision makes it unsuitable for judicial review.
[35] It is also unnecessary to determine whether TCDC’s decision is a “statutory power of decision” under s 4 of the JRPA. Even if that is stretching the meaning of eligibility to receive a “benefit” in s 4, the JRPA does not derogate from the Court’s judicial review powers under the common law.
Security for costs
[36] Turning to security for costs, TCDC seeks security of $25,000 based on its estimate of 2B costs of approximately $26,400 with a one and a half day hearing.
[37] It is common ground that HCCA will be unable to pay costs if unsuccessful. So, the threshold requirement for security is met under the High Court Rules,17 and s 17(1) of the Incorporated Societies Act 1908. The issue under the High Court Rules is whether ordering security for costs is just in all the circumstances.18 I approach the discretion under s 17(1) in the same way.
[38] As the Court of Appeal said in A S McLachlan Ltd v MEL Network Ltd:19
Whether or not to order security and, if so, the quantum are discretionary. They are matters for the Judge if he or she thinks fit in all the circumstances.
16 Intergovernmental Panel on Climate Change (IPCC) – www.ipcc.ch/documentation.
17 High Court Rules 2016, r 5.45(1)(b).
18 Rule 5.45(2).
19 A S McLachlan Ltd v MEL Network Ltd [2002] NZCA 215; (2002) 16 PRNZ 747 (CA) at [13].
The discretion is not to be fettered by constructing ‘principles’ from the facts of previous cases.
[39] For TCDC Mr Hughes raised the following factors relevant to the exercise of discretion:
(a) balancing HCCA’s access to justice and TCDC’s right to costs;
(b) the merits;
(c) (absence of) delay;
(d) HCCA is a nominal plaintiff representing the interests of others who will be spared the risk of costs exposure;
(e) whether the litigation is brought in the public interest.
[40] I deal with these factors in turn.
[41] In relation to access to justice, the Court of Appeal said recently in Lee v Lee:20
The discretion is a broad one. It may be exercised to require security even if that may prevent a plaintiff from pursuing a claim. But access to the Court for a genuine plaintiff is not lightly to be denied. In A S McLachlan Ltd v MEL Network Ltd this Court summarised the position:
[15] The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursuing the claim. An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the Courts for a genuine plaintiff is not lightly to be denied.
[16] Of course, the interests of defendants must also be weighed. They must be protected against being drawn into unjustified litigation, particularly where it is over- complicated and unnecessarily protracted.
[42] Similarly, in Reekie v Attorney-General, the Supreme Court stated that applications for security for first instance proceedings call for careful consideration and judges are slow to make an order for security which will stifle a claim.21
[43] As to the nature of the careful consideration required, the Court of Appeal said in Lee v Lee:22
Normally the court will only endeavour to assess the merits and prospects of success of the claim by way of overview ... We do emphasise, however, that an application for security for costs should not generally become an opportunity to explore the merits in any depth.
[44] This also reflects the Court of Appeal’s earlier statement in A S McLachlan Ltd v MEL Network Ltd that, at best, in a complex matter, assessment at the interlocutory stage can be no more than impression and cannot be a definite indicator of the ultimate outcome after trial.23
[45] Mr Tegg’s affidavit for HCCA explains the very limited assets of the HCCA and states it is hopeful further funds will be raised on its Givealittle page but that, despite its fundraising efforts, if HCCA is ordered to pay security there is a very real possibility it will no longer be able to advance its claim. He also says that the costs are such that if HCCA cannot afford to proceed with its claim, the decision’s legality will never be litigated.
[46] Mr Hughes submitted that HCCA has not substantiated its position that security will prevent the claim being pursued with evidence about the individual means of its members and whether they could finance the claim. I accept HCCA’s evidence is not clear that security will stifle the claim. But this is not a case where the plaintiff has failed to provide information about its financial position and an adverse inference may be drawn.24 The lack of evidence from individual members does not negate Mr Tegg’s evidence, which I infer has attempted not to overstate the position. I accept there is a real possibility that security of a substantial sum will prevent HCCA pursuing the claim – at least on the basis that fundraising (from members or otherwise) is not assured – but it cannot be assumed that any order for security will stop the claim from being pursued.
22 Lee v Lee [2019] NZCA 345 at [73].
[47] TCDC’s legitimate interest in recovering costs if successful must be balanced against HCCA’s access to justice. This merges into two of the other factors raised, namely whether HCCA is a nominal plaintiff representing the interests of others who will be spared the risk of costs exposure, and whether the litigation is brought in the public interest as this may well affect the costs likely to be awarded.
[48] Where a nominal plaintiff is representing the interests of others who will be spared the risk of costs exposure, it may be appropriate to order security.25 I accept that HCCA is in effect a nominal plaintiff representing the interests of others. It was formed for a range of purposes relating to advocacy and awareness of climate change issues. The timing of its incorporation suggests it was at least in part for the specific purpose of this proceeding and sparing its members the risk of costs exposure. But I consider the significance of this factor depends on whether the proceeding is brought in the public interest and whether there is some measure of personal benefit for those represented (here the members of the incorporated society).
[49] The public interest or “watchdog” principle is well established – the public interest exception to the normal rule that costs follow the event is available where the case concerns a matter of genuine public interest beyond the interests of the immediate litigant, the case has merit, and the litigant concerned has acted reasonably.26 Accordingly, the presence of such a public interest element is a factor to be weighed when considering security for costs.27
[50] I accept, as Venning J did in New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd,28 that the issue of climate change may be seen as a matter of public debate. This proceeding clearly has a public
25 Highgate on Broadway Ltd v
Devine [2012] NZHC 2288, [2013] NZAR 1017 at [22(a)]; and
Purau
Moorings Association Inc v Canterbury Regional Council [2018] NZHC 462 at
[19]- [21].
26 New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2013] NZCA 555 at [11]- [13], referring to Ratepayers and Residents Action Assoc Inc v Auckland City Council [1986] 1 NZLR 746 (CA).
27 Save Happy Valley Coalition Inc v Minister of Conservation HC Wellington CIV-2006-485-1634, 18 September 2006 at [14]-[15]; and Mothers Against Genetic Engineering Inc v Minister for the Environment HC Auckland M22-PL03, 15 April 2003.
28 New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2012] NZHC 3560 at [46].
interest dimension. Whether TCDC’s decision is amenable to judicial review remains an issue for the substantive hearing.
[51] Mr Hughes submitted that HCCA has a private as well as public interest, relying on Nelson Gambling Taskforce Inc v Nelson City Council.29 Where the proceeding will bring members of an incorporated society some measure of personal benefit, it may not be unreasonable to expect them to assist with funding to provide security.30 But in this case I do not infer that members of HCCA are acting for personal pecuniary gain or benefit. Indeed, the suggestion that as property owner ratepayers (if they are) they will personally benefit seems somewhat inconsistent with the suggestion that the costs of signing the Declaration may outweigh the benefit. I consider this reduces the significance of the fact that HCCA is a nominal plaintiff.
[52] I consider the public interest dimension to the proceeding is such that, if TCDC succeeds, the public interest exception to the normal costs rule may apply – but this will likely depend on whether it is considered at the conclusion of the proceeding that HCCA’s claim had merit and it acted reasonably.
[53] The claim has a relatively narrow focus on the binary decision by TCDC as to whether the mayor could (that is, should) sign the Declaration. The possibility of discovery cannot be ruled out, but would be dependent on TCDC’s pleaded defence to the key allegations relating to the decision-making process and in any event should be limited in this judicial review context. As Mr Salmon proposed, the hearing should be accommodated in a day. The scope of the proceeding should only expand beyond that if TCDC puts in issue the pleaded scientific consensus, which I was told reflects the conclusions in the IPCC reports that New Zealand has ratified. That seems unlikely. Indeed, it would appear rather inconsistent with TCDC’s position on amenability of judicial review to seek to have the Court address the scientific consensus.
[54] Turning to the merits, as indicated the assessment at this stage is by way of overview only. Mr Hughes submitted that TCDC’s opposition has real merit.
30 At [73]-[74].
HCCA has survived strike out despite TCDC’s arguments as to the nature and effect of the Declaration. The decision is arguably reviewable – there remains an open question as to justiciability given the subject matter of the decision. TCDC has yet to plead to the factual allegations relevant to its decision-making process (and otherwise) so I say no more about the merits of the grounds of review at this stage. It is also premature to attempt to consider factors relevant to the Court’s exercise of discretion whether to grant relief. I do not consider the merits weigh particularly either way in the exercise of my discretion.
[55] It is accepted there is no issue of delay.
[56] Balancing HCCA’s access to justice and TCDC’s interests, together with the other factors referred to, I consider that security should not be ordered. Security based on TCDC’s estimate of 2B costs would be inappropriate. While a modest award of security (of say $5,000 - $10,000) might not prevent the claim from being pursued, I consider the public interest dimension and the proceeding’s relatively narrow focus on the binary decision by TCDC weigh against ordering security and outweigh TCDC’s interest in recovering costs and the fact that HCCA is a nominal plaintiff.
Result
[57] The strike out application is dismissed.
[58] The application for security for costs is dismissed.
[59] If costs cannot be agreed, I direct the parties to file and serve memoranda of no more than three pages – HCCA within 10 working days and TCDC within a further five working days. I will determine costs on the papers.
Gault J
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