AUCKLAND COUNCIL (FORMERLY AUCKLAND CITY COUNCIL) V THE ATTORNEY GENERAL SUED AS THE DEPARTMENT OF BUILDING & HOUSING (WEATHERTIGHT SERVICES) HC AK CIV-2010-404-8537

AUCKLAND COUNCIL (FORMERLY AUCKLAND CITY COUNCIL) V THE ATTORNEY GENERAL SUED AS THE DEPARTMENT OF BUILDING & HOUSING (WEATHERTIGHT SERVICES) HC AK CIV- 2010-404-8537 5 May 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-8537UNDER the Judicature Amendment Act 1972IN THE MATTER OF a procedural order under the WeathertightHomes Resolution Services Act 2002BETWEEN AUCKLAND COUNCIL (FORMERLYAUCKLAND CITY COUNCIL)ApplicantAND THE ATTORNEY GENERAL SUED ASTHE DEPARTMENT OF BUILDING &HOUSING (WEATHERTIGHTSERVICES)First RespondentAND KAREN WEBSTER & 49 OTHERSSecond RespondentAND COLLINS PAPER HAULAGE LIMITED(FORMERLY TRADING ASCASTLEROCK PROPERTY HOLDINGSLIMITED)Third RespondentAND SCOTT ALLEN DESIGN T/A ALLENDESIGNFourth RespondentAND XTREME CONSTRUCTION LIMITEDFifth RespondentAND STUDORP LIMITEDSixth RespondentAND JOHN WALTER LOMAXSeventh RespondentAND LEE DAVID LOMAXEighth RespondentAND GREGORY CAMPBELL OLIVERNEILSENNinth RespondentAND RODERICK WILLIAM GUTHRIENEILSENTenth RespondentAND TELECOM NEW ZEALAND LIMITEDEleventh RespondentAND METALCRAFT INDUSTRIES LIMITEDTwelfth RespondentAND JOHN GREENThirteenth RespondentCounsel: S A Thodey for ApplicantsR Chan for First RespondentS A Connolly for Second RespondentJudgment: 5 May 2011AND GREGORY CAMPBELL OLIVER NEILSEN Ninth RespondentAND RODERICK WILLIAM GUTHRIE NEILSEN Tenth RespondentAND TELECOM NEW ZEALAND LIMITED Eleventh RespondentAND METALCRAFT INDUSTRIES LIMITED Twelfth RespondentAND JOHN GREEN Thirteenth RespondentHearing: On the papersCounsel: S A Thodey for Applicants R Chan for First Respondent S A Connolly for Second RespondentJudgment: 5 May 2011JUDGMENT OF KEANE JThis judgment was delivered by Justice Keane on 5 May 2011 at 3.45pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Solicitors:Heaney & Co., Auckland for ApplicantCrown Law Office, Wellington for First RespondentAlexander Dorrington, Auckland for Second Respondent[1] The Auckland Council seeks by way of judicial review to challenge the validity of a decision made by an adjudicator appointed under the Weathertight Homes Resolution Services Act 2002, in which he declined to remove the Council from claims brought under that Act by the second respondents.[2] A threshold issue has arisen. It is whether the Attorney General, sued as the Department of Building and Housing (Weathertight Services), is properly named as the principal respondent. The Attorney General seeks to be struck out. The correct principal respondent, he contends, is the adjudicator whose decision is the subject of the proposed review.[3] In resolving this application on the papers I assume, as the pleadings assume, that it is to be resolved as if the Weathertight Homes Resolution Services Act 2002 is still governing even though such disputes are now, and have since 1 April 2007 been, governed by the Weathertight Homes Resolution Services 2006.1Adjudication proceeding[4] The adjudication proceeding in which the adjudicator gave the decision the Council seeks to impugn on this application was brought by the present second respondents; 50 owners of units in a complex contended not to be weathertight.[5] The Council applied in that adjudication to have the claims against it struck out on the basis that the claimants' units had before December 2002 been under the regulatory control of a private certifier under the Building Act 1991, and of the Building Industry Authority. When the units came within its regulatory control, the Council contended, they were already physically complete. It had never, therefore, it contended, come under any common law duty of care to the claimants. Nor had it ever committed any breach of duty causative of loss to them. Nor, it contended, could they establish that, in relying on the certificates issued, it had acted otherwise than in good faith.1 Weathertight Homes Resolution Services Act 2006, s 2.[6] To this the claimants responded with an amended notice of adjudication. The Council, they contended, owed to them and those to whom they on-sold, a duty to take all reasonable care to ensure that the units were inspected by a certified private certifier. If the certifier was uncertified, they contended, the Council was obliged to undertake the inspections itself. The Council, they contended, knew or ought to have known that the private certifier was uncertified. Also that the certificates issued were not accurate.[7] The Council sought leave to apply a second time to be removed. On 27 September 2010 the adjudicator granted the Council leave to apply but refused the application. The application raised, the adjudicator held, a substantial dispute of fact, as to which the material was incomplete, that could only be resolved at the substantive hearing.Judicial review application[8] On this application for judicial review, the Council contends, the adjudicator exercised invalidly his statutory power of decision. His decision was rendered invalid by three breaches of natural justice or related errors of law. He failed to identify the 'substantial facts in dispute'. He failed, before making his decision, to allow the parties to comment. He failed to explain why the principles of law in two cases on which the Council relied did not apply.[9] The Council seeks to have the adjudicator's order set aside. It then seeks either the order in the adjudication that the adjudicator did not make, removing it from the adjudication, or an order remitting that issue to the adjudicator to consider afresh with directions as to how that was to be accomplished correctly.[10] In its statement of claim the Council also explains why it has named the Attorney General as respondent and not the adjudicator:24. The JA Act 1972 requires that where a party seeks to challenge the decision of any officer of a court or tribunal who has made the decision as an officer of that court or tribunal then the court or tribunal should be named as the respondent to the proceeding with rights reserved to the officer to file a defence to the claim.25. At all material times the first respondent ... (was) the body responsible for the administration of the tribunal of which the adjudicator is an officer.Statutory rules[11] In these pleadings the Council refers to, and considers itself bound by, s 9(4) and (4A) of the Judicature Amendment Act 1972, more especially subs (4A):(4) The person whose act or omission is the subject matter of the application for review, and subject to any direction given by a Judge under s 10 of this Act, every party to the proceedings (if any) in which any decision to which the application relates was made, shall be cited as a respondent.(4A) For the purposes of subsection (4) of this section, where the act or omission is that of a Judge, Registrar, or presiding officer of any court or tribunal, -(a) That court or tribunal, and not that Judge, Registrar, or presiding officer, shall be cited as a respondent; but(b) That Judge, Registrar or presiding officer may file, on behalf of that court or tribunal, a statement of defence to the statement of claim.[12] Because the 2002 Act has been repealed and Weathertight Homes Resolution Services no longer exist, the Council considers itself obliged also to invoke s 14(2)(c) of the Crown Proceedings Act 1950, which says this:Subject to the provisions of this Act and to the other Act, civil proceedings under this Act against the Crown shall be instituted against -...(c) The Attorney-General if there is no such appropriate department or offices or if the person instituting the proceedings has any reasonable doubt whether any and if so which department and officer is appropriate;Conclusions[13] I am unable to sustain the Council's pleaded basis for naming the Attorney General as the principal respondent to this application for judicial review; that the Attorney General is a necessary surrogate for a tribunal created by the WeathertightHomes Resolution Services Act 2002, now dissolved, of which the adjudicator was a member at the time when he made the decision the Council seeks to impugn.[14] The 2002 Act created a regime for the assessment and evaluation, the mediation and the adjudication of claims by assessors, mediators and adjudicators. It did group assessors into panels. It did not group mediators. It did not create any tribunal of which adjudicators were members.[15] Jurisdiction was conferred on adjudicators personally; an adjudicator was 'a person appointed under s 24 to determine a claim that has been referred to adjudication'.2 The only exception was the chief adjudicator3 but his or her additional power was only to co-ordinate adjudication services.4 The right to refer a claim to adjudication was not to any tribunal.5 As s 24(1) said, 'adjudication under this Act is performed by adjudicators appointed under this section'. Jurisdiction was conferred on adjudicators expressly,6 as were their duties and powers.7 Every related aspect of the 2002 Act was consistent.[16] By contrast, the Weathertight Homes Resolution Services Act 2006, which has replaced the 2002 Act, does expressly create a tribunal.8 It does provide for the appointment of members to the tribunal.9 It does confirm that the duties, functions and powers of the tribunal are to be performed and exercised by its members.10Every related aspect of the 2006 Act is consistent.[17] This contrast confirms what appears to me to be already clear that if, as the pleadings say, the statutory power of decision challenged on this application for review was made, and remains governed by, the 2002 Act then the adjudicator who made the decision is the proper respondent. Section 9(4A) of the Judicature Amendment Act 1972 does not apply as it would if the challenged decision had been2 Weathertight Homes Resolution Services Act 2002, s 5.3 Section 24(4).4 Section 25(1).5 Section 22.6 Section 29.7 Sections 35, 36.8 Weathertight Homes Resolution Services Act 2002, s 101.9 Section 103.10 Section 102.made by a tribunal member under the 2006 Act. The Attorney General's application to be struck out is granted.[18] Ordinarily, that order should be accompanied by an award of costs. The Attorney General was only named, instead of the adjudicator, however, because the Council understood itself obliged to take that course by s 9(4A). Though the adjudicator will now have to be substituted for the Attorney General nothing in reality will change. An award of costs seems to me to be inappropriate._____________P.J. Keane J