BODY CORPORATE 212138 V THE MINISTER FOR LAND INFORMATION NEW ZEALAND HC AK CIV-2012-404-006867

BODY CORPORATE 212138 V THE MINISTER FOR LAND INFORMATION NEW ZEALAND HC AK CIV-2012-404-006867 [21 November 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-006867[2012] NZHC 3122BETWEEN BODY CORPORATE 212138AppellantAND THE MINISTER FOR LANDINFORMATION NEW ZEALANDRespondentHearing: 21 November 2012Counsel: AJ Thorn for AppellantsGK Holm-Hansen for RespondentJudgment: 21 November 2012ORAL JUDGMENT OF RODNEY HANSEN JSolicitors: Adina Thorn Lawyers, P O Box 1753, Auckland 1140 for Appellant(Email: adina@adinathorn.co.nz )Simpson Grierson, Private Bag 92518, Auckland 1141(Email: glen.holm-hansen@simpsongrierson.com )CIV 2012-404-006881BETWEEN TOWNSCAPE SECURITIES AUCKLAND LIMITED & ORSAppellantsAND THE MINISTER FOR LAND INFORMATION NEW ZEALANDRespondentCIV 2012-404-006910BETWEEN BODY CORPORATE 212138First AppellantsAND TOWNSCAPE SECURITIES AUCKLAND LIMITED & ORSSecond AppellantsAND THE MINISTER FOR LAND INFORMATION NEW ZEALANDRespondentIntroduction[1] The appellants seek an order staying a hearing in the District Court that is due to commence at 10.00 a.m. tomorrow.[2] They are the owners and body corporate of 27 apartments at 1510 Great North Road, Waterview. They are affected by tunnels, which are part of the Waterview Connection Project, which will pass under their property. A condition of the resource consent granted in June 2011 by a Board of Inquiry, chaired by Judge Newhook of the Environment Court, required monitoring of affected properties in relation to issues such as settlement and ground water.[3] The New Zealand Transport Authority (NZTA) and the appellants have been unable to agree on terms of access to their property for monitoring purposes. On 12 September 2012, the Minister for Land Information New Zealand (the Minister) gave notice under s 111 of the Public Works Act 1981 (the Act) of his intention to enter the property to carry out the necessary monitoring. The appellants have objected to the District Court under s 111(4) of the Act. The objection is to be heard tomorrow.[4] The appellants say they will be prejudiced if the hearing proceeds. They contend that the proceedings should be delayed for at least two weeks. In their appeals and an application for review they challenge the decision of Judge Newhook to fix the hearing for tomorrow. The circumstances leading up to his decision need to be recounted in full.History of District Court proceeding[5] The first step in the proceeding was a callover which took place before Judge Sharp on 9 October 2012. She made timetable orders for filing and service of evidence and directed that a one and a half to two-day hearing be allocated in 2013. Judge Sharp rejected a submission on behalf of the Minister that an urgent fixture be allocated. According to a memorandum subsequently filed in the District Court bycounsel for the appellants, she indicated at the hearing that the proceedings did not seem any more urgent than most other civil proceedings presently before the District Court.[6] On 19 October, counsel for the Minister filed a memorandum requesting an urgent fixture. The memorandum noted that the monitoring conditions require monitoring for at least twelve months prior to any construction being carried out.The memorandum went on to say that NZTA's work programme requires that boring of the tunnels commence in November 2013 and unless monitoring commenced in the next few weeks, the Ministry will be prejudiced in its efforts to comply with the condition. This would cause work on the tunnels to be delayed.[7] The memorandum went on to say that the Minister had instructed counsel to enquire whether an urgent or short notice fixture could be available prior to 24 December 2012. The memorandum continued:To assist the Respondent suggest that if the matter is heard by the same Judge who chaired the Board of Inquiry, the fixture could be considerably shorter for the reasons which follow.[8] The chair of the Board of Inquiry was, as I have previously said, Judge Newhook. Counsel went on to request that he hear the matter in light of his familiarity with the consents, the property and the monitoring conditions. It was said this would be a more efficient use of valuable Court resources and result in less expense to the parties as it would avoid the need to duplicate the time involved in explaining the background to a new Court. The memorandum concluded:11. This memorandum respectfully requests a consideration by the Principal Environment Court Judge on whether Judge Newhook would be available to hear this matter. In particular, the respondent requests an indication on whether Judge Newhook and court facilities may be available for this matter to be heard in 2012. It also seeks comment from the objector on this request to expedite the hearing of its objection.[9] The appellants responded by memorandum dated 24 October opposing any change to the directions made by Judge Sharp. The memorandum said that nothing had been raised in the memorandum filed on behalf of the Minister that had not been raised at the callover; that the proper course would have been for the Minister tohave filed an interlocutory application for an urgent hearing; and that the timetable directed by Judge Sharp should be adhered to. Counsel said that timetable directions are already so tight that any shortening of the timetable would be likely to causesignificant prejudice. In relation to the proposal that "the matter" be heard by JudgeNewhook, counsel said the objectors had no preferences as to which judge should hear the substantive objection.[10] On 26 October 2012, Judge Newhook issued a minute which read as follows:[1] I have seen and considered the Minute of Crown Counsel dated 19 October 2012, in my capacity as Acting Principal Environment Court Judge, a District Court Judge, and the former chairman of the Waterview Board of Inquiry.[2] I am able to offer the application for a one day fixture on the 22 November 2012, unless counsel for the objectors persuades me otherwise by memorandum to be lodged no later than 5 November 2012.[3] The Auckland Environment Court can offer a courtroom on the above day.[11] Counsel for the objectors filed a memorandum on 5 November reiterating their opposition to an accelerated timetable. They pointed out that, among other things, a hearing on 22 November would take place before evidence in reply in accordance with the existing timetable.[12] Over the ensuing week to ten days, counsel for the objectors made repeated enquiries of the District Court endeavouring to establish whether or not there had been any decision made in response to the memorandum. There were no further substantive developments, however, until a judicial telephone conference was held on 15 November 2012. In his minute recording what was discussed, Judge Newhook recorded his advice to counsel that his directions of 26 October must be seen to haveovertaken Judge Sharp's directions of 9 October. He noted the objectors' oppositionto an urgent fixture and recorded that:I directed that the hearing of this matter will proceed on 22 November and will be concluded as promptly as possible for the reasons discussed in the conference, particularly my knowledge that conditions of consent of the Waterview Board of Inquiry require that certain testing and monitoring commence not later than a year before tunnelling commences, the latter being scheduled for late next year.[13] The memorandum went on to make directions for the filing of evidence and submissions.[14] The following day, 16 November 2012, the objectors filed notices of appeal, an application for judicial review, together with the application for stay.Grounds for stayProcedural oddities[15] There are a number of features emerging from this narrative which are curious, if not disturbing. In no particular order they are:That the decision of one District Court Judge should be reviewed by another. The principle is well established. A judge does not review the decision of a colleague. If a party is dissatisfied with a decision, the remedy is to appeal –just as the objectors have done. The fact that the reviewing judge is also an Environment Court judge and the Acting Principal Judge does not alter the position. The proceedings are brought in the District Court; Judge Newhook must have been acting in his capacity as a District Court judge.The decision was made by a judge who became involved at the instigation ofone of the parties. It is not clear how the memorandum of the Minister'scounsel led to Judge Newhook becoming engaged but it gives rise to a concern that another well established principle of our justice system may have been violated. It is for the Court, not the parties, to decide which judge will sit on any particular case.The appointment of Judge Newhook to hear the case in itself raises questions.The Minister pressed for his appointment because, as chair of the Board ofInquiry, he was familiar with the background. I am told he was appointed tothat role under the Resource Management Act in his capacity as anEnvironment Court judge. However, it seems to me, with respect, that JudgeNewhook's prior involvement with the body that imposed the condition in issue, is arguably a reason why he should not sit rather than something which specially qualifies him to hear the matter. My view in that regard, although necessarily provisional and reached without argument, is fortified somewhat by advice from counsel that the report of the Board of Inquiry made credibility findings adverse, I am told, in relation to two of the objectors who appeared as submitters.[16] Although none of these issues are presently a ground of appeal or review, Ms Thorn explained that, contrary to the view conveyed in the memorandum of 24 October, the appellants take issue with Judge Newhook hearing the proceeding.[17] There are further procedural oddities, as Ms Thorn described them, in relation to the way matters developed in the District Court. No formal notice of hearing hasbeen issued by the District Court. Although the appellants' objections are required tobe heard by the District Court, the hearing is to take place in the courtrooms of the Environment Court. And the minute issued by Judge Newhook on 15 November 2012, while presumably issued in his capacity as a District Court Judge, bears the seal of the Environment Court. These apparent irregularities reflect the somewhat unorthodox route that this proceeding has taken in the lower court and of confusion over the role of the Environment Court and its judges.Prejudice to appellants.[18] The grounds of appeal and review and the further basis for seeking a stay is the prejudice that the appellants say they will suffer if the hearing proceeds tomorrow. Ms Thorn submits that it is unfair that the appellants should be requiredto prepare for the hearing at only one week's notice and to complete the hearing inone day. Ms Thorn says, from the appellants' point of view, the proceedings raisematters of some difficulty and complexity. They raise questions as to the powers which the Minister is purporting to exercise, issues of delegation and the all encompassing question raised by s 111(5) of whether the proposed survey or investigation is unreasonable or unnecessary.[19] In support of the Minister's position, five affidavits totalling some 350 pageshave been filed. Ms Thorn says the appellants have had insufficient time to consider that evidence and to prepare for the hearing. Submissions have been filed in order to comply with the timetable orders made by Judge Newhook, against the possibility that the application for say may be unsuccessful. But, she says, the appellants'preparation has suffered.[20] The appellants raise concerns arising out of Judge Newhook's stated viewthat the hearing should be completed within one day. Counsel for the appellants remains of the view that three days is required. Time is required for the purpose of cross-examining Crown witnesses. Ms Thorn is concerned at indications that there may be attempts to confine that right of cross-examination.Minister's position[21] Mr Holm-Hansen, while acknowledging the somewhat unusual course that has been followed by the District Court proceedings, maintains the matter is ready to proceed tomorrow and should be heard. He explains that while the affidavit evidence is voluminous, most of it comprises exhibits, a lot of which have previously been provided to the appellants. He takes issue with the claim that there has been inadequate time for preparation. He says that the Minister would require only an hour to present submissions. He supports the view of the Judge that, in all the circumstances, the hearing could be completed within one day.[22] There is concern also that any delay in the hearing could delay the progress of this important public work. The Minister takes the view that the condition in question requires monitoring to commence twelve months before the commencement of the tunnelling operation. Accordingly, if he is correct, the scheduled commencement of tunnelling would be delayed if the hearing were postponed for any significant period of time.Decision[23] Having given careful consideration to the arguments of counsel, I have come to the view that the hearing should not proceed tomorrow. The way in which the fixture was made and Judge Newhook became the judge to hear the matter raise substantial concerns as to the jurisdictional basis for and validity of the orders he made. They, and his prior involvement in the Board of Inquiry, also raise important issues as to whether he should hear the objections. These issues should be resolved if he is to remain the judge assigned to hear the case.[24] I also have major concerns about the risk of prejudice to the appellants if the hearing proceeds. Although Mr Holm-Hansen said tomorrow's hearing was signalled by Judge Newhook in his minute of 26 October, Judge Sharp's directions remained in place until superseded by the directions made by Judge Newhook at thetelephone conference on 15 November. Despite Ms Thorn's enquiries of the DistrictCourt, she was given no reason to think that those directions would be countermanded. The appellants were given only seven days notice of the hearing.[25] I have only limited ability to assess the complexity of the factual and legal issues. Ms Thorn says they are of considerable complexity and will need much longer than a day to address. Mr Holm-Hansen disputes that. I could not possibly resolve those differences in the context of this hearing. What is clear is that there are important property rights in issue. They should not be addressed under unreasonable time constraints. The view of responsible and informed counsel that three days is required should be accorded respect.[26] I do not overlook the implications of delaying the hearing. The weight I place on that consideration must be reduced by the fact that the need for urgency is very much of the Minister's own making. It has been known since June 2011 thatthe condition in question would need to be complied with beginning, on theMinister's view, in November 2012. Yet the notice under s 111 of the Act was notissued until September 2012. There is also some question as to how the conditionshould be interpreted. On the appellants' argument, monitoring would not need tocommence until March 2013, one year before the tunnelling is scheduled to reach theappellants' property.[27] It will be for those responsible for scheduling in the Auckland District Court to decide when time can be made available for the hearing and the judge to whom itshould be assigned. In order to assist that process, however, I note Ms Thorn'sadvice that the appellants would be ready to commence a hearing in two weeks time.I note also that in the memorandum of the Minister's counsel seeking urgency, afixture before the end of the year was sought, although Judge Sharp had in mind a hearing in March 2013. Clearly, an earlier hearing would meet the concerns of the Minister and not lead to any prejudice on the part of the appellants.Result[28] For these reasons, I make an order staying the hearing of the proceedings in the District Court on 22 November.[29] The proceedings in this Court are adjourned to the Appeals Case Management List on 27 November for further directions if required.