CANTERBURY REGIONAL COUNCIL V THE ATTORNEY-GENERAL OF NEW ZEALAND HC WN CIV-2008-485-2652

CANTERBURY REGIONAL COUNCIL V THE ATTORNEY-GENERAL OF NEW ZEALAND HC WN CIV- 2008-485-2652 25 March 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2008-485-2652UNDER the Declaratory Judgments Act 1908 BETWEEN CANTERBURY REGIONAL COUNCIL Applicant AND THE ATTORNEY-GENERAL OF NEW ZEALAND Respondent Hearing: 23 March 2009 Counsel: J R Reid in person as applicant for joinder J Winchester for applicant J A L Oliver for respondent Judgment: 25 March 2009RESERVED JUDGMENT OF DOBSON J[1] In these proceedings, the Canterbury Regional Council (CRC) seeks declarations as to the lawfulness of certain proposed procedures for CRC to hear and consider submissions on changes that are proposed to the Canterbury Regional Policy Statement, as contemplated under the Resource Management Act 1991 (the Act). [2] The way CRC would prefer to proceed involves appointing two or more members of CRC as a hearing panel to hear submissions and either make decisions on behalf of CRC or make recommendations to it. The present application is one for joinder by a lay litigant as a second respondent. To understand the merits of that application, it is first necessary to explain the somewhat complicated background to these proceedings.[3] CRC's proposed mode of progressing changes to its policy statement was challenged in separate proceedings brought in the Christchurch Registry of this Court (National Investment Trust Ltd v Canterbury Regional Council HC CHCH CIV-2008-409-1280). However, those proceedings were settled on terms recognising that CRC would not proceed to appoint its own councillors to hear submissions on the proposed amendments to its Regional Policy Statement, but rather would appoint independent hearing commissioners to do that. CRC pleads in the Statement of Claim in the present proceedings that the decision to compromise the Christchurch Registry proceedings was made because of concerns that litigation delays, if those proceedings had to be concluded before the hearing process on the proposed changes could be undertaken, would push completion of the changes to the Regional Policy Statement outside the two year period in which it is required to be completed. [4] Having made the pragmatic decision to accede to some, at least, of the concerns of the objectors to the process for dealing with the proposed change to its Regional Plan, CRC considered that there was an ongoing issue of important principle. CRC saw the lawfulness of the mode by which it could hear submissions on such proposed changes as one of sufficient importance to seek declarations from the Court about it. Hence the present proceedings citing the Attorney-General as respondent. [5] The response on behalf of the Attorney-General is to seek to have the claim against him struck out. That application is to be called on 20 April 2009. On behalf of the Attorney-General, Mr Oliver indicated that there is no issue between CRC and the Attorney-General, therefore nothing about which the Attorney-General could argue with the propositions sought to be upheld in the declarations CRC seeks. [6] In the meantime, counsel for the applicants in the Christchurch proceedings brought by National Investment Trust Limited, having ascertained that the Attorney- General seeks to be excluded from these present declaratory judgment proceedings, have filed a Memorandum urging the Court to consider the appointment of an amicus to present argument contrary to CRC. Given the extent of background inbringing the Christchurch proceedings, those counsel volunteer themselves as appropriately qualified for appointment as such amici to assist the Court. [7] On 5 February 2009, James Robert Reid made application to be joined as a second respondent to the proceedings. Mr Reid is a lay litigant with substantial experience in acting on his own behalf, and who remains an active litigant in various proceedings, all of which have some connection, be it distant or indirect, with his dismissal as an employee of the New Zealand Fire Service Commission in December 1995. [8] Neither of the existing parties to the litigation oppose Mr Reid's application. He submits that in those circumstances the Court's discretion is relatively confined, and that his formal application ought to be granted. As to the timing for dealing with it, Mr Winchester did submit that it ought to be adjourned until the outcome is known of the Attorney-General's application to be struck out of the proceedings, and the Court's decision on the proposal that an amicus be appointed to present all appropriate contrary arguments against the declarations sought. However, Mr Reid insisted that his application be argued and determined on the basis of the present situation with the proceedings. [9] In the public law area where these proceedings arise, there are rules about standing to bring or participate in proceedings. Although the requirements for standing in relation to a plaintiff have been liberalised in recent years, there is still, at the very least, a requirement that the proposed plaintiff have an interest in the subject matter of the dispute greater than the public in general: Finnigan v NZRFU [1985] 2 NZLR 159. [10] The position of Mr Reid here is somewhat anomalous. He was not a potential party to the litigation who could ever claim to have been within the widest possible contemplation of either of the existing plaintiff or defendant. He has no position that would suggest any responsibility to monitor the lawfulness of conduct by territorial authorities and has no possible financial or proprietary interest in CRC's proceedings. The analysis of standing is usually applied in respect of plaintiffs because thereafter they nominate who is to be involved in their litigation. However,in the present circumstances I consider it appropriate to analyse Mr Reid's position on standing to participate in the proceedings as if he were, in effect, a further plaintiff. He apparently wishes to use these proceedings as a forum for advancing arguments that would constrain the manner in which regional authorities can progress proposals in relation to policy statements, and implicitly territorial plans, for resource management purposes. [11] In Wall v Livingston [1982] 1 NZLR 734, the Court of Appeal denied standing to a doctor who had pursued an application for judicial review in respect of the decision by two medical consultants who had authorised an abortion for a teenage girl, acting under s 32 of the Contraception, Sterilisation and Abortion Act 1977. The plaintiff was not one of the statutory participants in the procedure and nor could he claim to represent the interests of the unborn child as the Act gave no one the statutory means by which the rights of the unborn child could be asserted. In those circumstances, a doctor concerned at the application of the law did not have sufficient standing. Although there has been a liberalisation in the approach to standing since the early 1980s, there is no sufficient shift in principle to distinguish the approach the Court of Appeal took in that case. [12] More recently, in Jeffries v The Attorney-General HC WN CIV-2006-485- 2161 20 May 2008 Ronald Young J, a barrister had sought to challenge the lawfulness of consents granted to an American couple under the Overseas Investment Act 1973, in respect of their purchase and development of a property in the Marlborough Sounds. The plaintiff's only connection was in acting for a New Zealand business that had been retained by the American couple, and subsequently had a contractual dispute with them over payment for services. The plaintiff considered that the Overseas Investment Commission/Overseas Investment Office had acted unlawfully or unreasonably or inconsistently in the terms of consents granted to the American couple. The Court found that the barrister did not have sufficient standing to challenge the conduct of the Overseas Investment Commission/Overseas Investment Office in relation to the American couple. [13] Applying a similar approach as was adopted in both those cases to the nature of any interest Mr Reid can assert, I conclude that he does not have any sufficientinterest in the subject matter of these proceedings to have standing. That would certainly be the case if he agreed with CRC and wished to join as a plaintiff/applicant. The test for standing ought to be the same when he is a complete outsider and volunteers participation as a further defendant/respondent. In the event that I am wrong in applying the test on standing in this way to the circumstances of this application, I shall also consider the merits of the application under the Rules on joinder. [14] Mr Reid submitted that the terms of new r 4.56 of the High Court Rules suggest a lowering of the threshold for joinder of parties to civil proceedings, when compared with the former terms of r 97. I do not accept that. The relevant part of r 4.56 gives a Judge the discretion at any stage of a proceeding to add the name of a person as (in this case) a respondent because either that person ought to have been joined, or because the person's presence before the Court may be necessary to adjudicate on, and settle all questions involved in, the proceeding. Considerations under this rule should be made in light of primary rr 4.1 and 4.3 as to the limit on parties, and the appropriate scope of defendants. Rule 4.1 provides that parties to a proceeding must be limited as far as practicable to those persons whose presence before the Court is necessary to justly determine the issues arising, and to persons who ought to be bound by any judgment given. Rule 4.3(1) provides that the persons who may be joined as defendants are those against whom it is alleged there is a right to relief in respect of or arising out of the same transaction, matter, event, instrument, document, series of documents, enactment or bylaw. [15] Rule 4.3 contemplates conventional inter partes disputes such as arise where the plaintiff alleges a breach of contract, tortious, statutory or public law duties owed by the defendant. However, the overriding requirement that the proceedings ought to be managed to procure the just, speedy and inexpensive determination of any proceeding means that the Court is either to be satisfied of that financial or proprietary interest in the dispute as contemplated by the rule, or a comparable extent of interest where the Court entertains more abstracted disputes, such as applications for declaratory judgment.[16] Dealing with this application first on the assumption that the Attorney- General does not get struck out and continues in a role that provides an adequate contradictor to CRC's arguments, then I would not be persuaded that Mr Reid's presence before the Court may be necessary to adjudicate on, and settle all questions involved in, the proceeding. [17] Mr Reid argues that CRC is effectively running its arguments in this case on behalf of all local authorities throughout New Zealand. Although CRC has certainly canvassed for support from other territorial authorities, and in the general sense apparently has the support of Local Government New Zealand, the present scope of the proceedings are certainly not to be treated as applying in the formal sense to procedures adopted by all territorial authorities. However, it is likely that the circumstances cited by CRC as to the proposed procedure it wishes to follow are likely to be a variant on what substantial numbers of other territorial authorities would wish to pursue. Any declarations the Court is persuaded to make are therefore likely to have relevance as a precedent for the procedures adopted elsewhere. [18] Mr Reid obviously has no interest in the conduct of submissions about proposed changes to the Canterbury Regional Plan. However, he claims to be an objector to comparable proposals for change to the local authority and/or regional authority plans or Regional Policy Statements affecting his area in Woodville. He suggests that he has an interest because he shares the concerns of those who protested at the procedure proposed by CRC. This seeks to challenge the appointment of members of the regional authority to comprise a committee to hear submissions when they have been parties to the decision-making on the proposed change in the first place, given the prospect of pre-determination or bias. [19] Mr Reid's position as an objector to a proposed change by another authority is hardly a distinctive interest of the type that may make his presence before the Court necessary to adjudicate on the issues. The nature of his concerns is, with respect, easily discerned and in no way distinctive to him. The issue is whether participation by regional councillors in more than one capacity, in the process leading to changes in Regional Policy Statements or plans, creates a risk inadministrative law terms of decision-making flawed by the prospect of pre- determination or bias. [20] Mr Reid said that he had no confidence that the Attorney-General would raise all the arguments that could reasonably be made against the proposed process. With respect, that reflects an individual judgement on the scope of what are reasonable arguments and those likely to be helpful to the Court in reaching a fully reasoned conclusion. It is not a basis for rejecting the adequacy of the Attorney-General, should he remain in the proceedings, as an adequate contradictor. [21] Given Mr Reid's refusal to defer determination of his application until the future participation of the Attorney-General was resolved, it is necessary to also consider the case for his joinder as a respondent in the absence of the Attorney- General. Implicitly, Mr Reid considers that he would be an adequate contradictor, without anybody else presenting opposing argument. If CRC is to be taken as agreeing with that proposition (Mr Winchester was somewhat equivocal about it), then that is a stance that might not reflect well on CRC in all the circumstances of the case as it later develops. Given the importance they claim for the issues about consultation and decision-making of regional councils, and the apparent support of Local Government New Zealand on the basis that it will produce a precedent of wide relevance, leaving the opposition to a lay litigant, even one with extensive experience in pursuing his own causes on a large number of fronts, hardly ensures a thorough and adequately presented range of views. [22] In saying this, I intend no disrespect to Mr Reid. Virtually all the Wellington-based Judges of the High Court are familiar with his conduct as a litigant in person, and he is not without skills in both presenting argument and responding to questions in Court. It is, however, entirely unrealistic to expect an advocate without legal training and without the research facilities and support of either a firm and instructed counsel or the Crown Law Office to adequately research and respond on the range of administrative law and local government issues likely to arise in the CRC proceedings. If Mr Reid participated as a respondent, he could not be criticised for focusing on the arguments that reflect just his own concerns as an objector in his own territorial area. The Court would be better served by an advocate with anobjective professional interest in canvassing all the issues seen as relevant, and likely to assist the Court in settling the terms of declarations, if the Court is persuaded that it is appropriate to do so. [23] The discretionary nature of the declaratory relief sought is another reason to be cautious about the adequacy of assistance the Court might get from a lay litigant, however experienced. [24] Without pre-empting the outcome of any proposals for appointment of an amicus, if the Attorney-General is ultimately excluded from the proceedings, it does seem inevitable that argument will be required from counsel experienced in this area of the law, and who is satisfied that he or she can assume the breadth of responsibilities inherent in appointment as an amicus. If the proceedings reach that point, then there is similarly no realistic prospect of it being necessary that the Court also hear from Mr Reid. [25] Accordingly, the application for joinder is declined.Dobson JSolicitors: J R Reid, 2 Vogel Street, Woodville Wynn Williams & Co, Christchurch for applicant Crown Law Office, Wellington for respondent