HAURAKI COROMANDEL CLIMATE ACTION INCORPORATED v THAMES-COROMANDEL DISTRICT COUNCIL [2020] NZHC 444

HAURAKI COROMANDEL CLIMATE ACTION INCORPORATED v THAMES-COROMANDEL DISTRICTCOUNCIL [2019] NZHC 444 [9 March 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2019-419-173[2019] NZHC 444UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial review of adecision of the Thames-Coromandel DistrictCouncilBETWEEN HAURAKI COROMANDEL CLIMATEACTION INCORPORATEDApplicantAND THAMES-COROMANDEL DISTRICTCOUNCILRespondentHearing: 11 November 2019Appearances: D Salmon and A McDonald for the ApplicantD J Neutze and G E Hughes for the RespondentJudgment: 9 March 2020JUDGMENT OF GAULT JThis judgment was delivered by me on 9 March 2020 at 4:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors:Mr D Salmon and Mr A McDonald, LeeSalmonLong, AucklandMr D J Neutze and Mr G E Hughes, Brookfields, Auckland[1] Thames-Coromandel District Council (TCDC) applies to strike out anapplication for judicial review brought by Hauraki Coromandel Climate ActionIncorporated (HCCA). In the alternative, TCDC seeks security for costs.[2] HCCA's application for judicial review relates to TCDC's response to climatechange. In particular, HCCA seeks judicial review of TCDC's decision not to approveits mayor signing the Local Government Leaders' Climate Change Declaration 2017(Declaration) promulgated by Local Government New Zealand (LGNZ). HCCAclaims that TCDC, in making the decision, erred in law by failing to consider relevantconsiderations and acted unreasonably.Background[3] In 2017 many mayors and chairs of City, District and Regional Councils signedthe Declaration. The Declaration includes the following:In 2015, Mayors and Chairs of New Zealand declared an urgent need forresponsive leadership and a holistic approach to climate change. We, theMayors and Chairs of 2017, wholeheartedly support that call for action.We have come together, as a group of Mayors and Chairs representing localgovernment from across New Zealand to:1. acknowledge the importance and urgent need to address climatechange for the benefit of current and future generations;2. give our support to the New Zealand Government for developing andimplementing, in collaboration with councils, communities andbusinesses, an ambitious transition plan toward a low carbon andresilient New Zealand;3. encourage Government to be more ambitious with climate changemitigation measures;4. outline key commitments our councils will take in responding to theopportunities and risks posed by climate change; and5. recommend important guiding principles for responding to climatechange.We ask that the New Zealand Government make it a priority to develop andimplement an ambitious transition plan for a low carbon and resilient NewZealand. We stress the benefits of early action to moderate the costs ofadaptation to our communities. We are all too aware of challenges we faceshoring up infrastructure and managing insurance costs. These are seriousfinancial considerations for councils and their communities.Council CommitmentsFor our part we commit to:1. Develop and implement ambitious action plans that reducegreenhouse gas emissions and support resilience within our owncouncils and for our local communities. These plans will:a. promote walking, cycling, public transport and other lowcarbon transport options;b. work to improve the resource efficiency and health of homes,businesses and infrastructure in our district; andc. support the use of renewable energy and uptake of electricvehicles.2. Work with our communities to understand, prepare for and respond tothe physical impacts of climate change.3. Work with central government to deliver on national emissionreduction targets and support resilience in our communities.Guiding PrinciplesThe following principles provide guidance for decision making on climatechange. These principles are based on established legal1 and moral obligationsplaced 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 considersigning the Declaration. The mayor stated:1 These Guiding Principles are established within the: Treaty of Waitangi, Resource ManagementAct 1991, Local Government Act 2002, Civil Defence and Emergency Management Act 2002,Oslo Principles 2014, Principles of Fundamental Justice and Human Rights.In my view the Declaration is a potentially binding document ... Without alegal opinion there is no way to prove there is no commitment and obtaininga legal opinion is an unnecessary expense in this instance ...The initiatives described in the Declaration have not yet been canvassedand therefore have unknown financial consequences. In fulfilling ourfiduciary responsibilities the Council has to follow the decision-makingprovisions of the Local Government Act 2002 While we have not signed the Declaration as a Council, we are alreadycommitted to working on many of the initiatives within the Declaration itself.[6] The mayor proposed that TCDC:1. Receives the 'Local Government Leaders' Climate ChangeDeclaration' report, dated 19 March 2019.2. Continues to take action, following robust decision-making processes,in response to climate change for our communities.[7] On 22 March 2019 the mayor emailed the chief executive of LGNZ asking ifit had a legal opinion as to whether the Declaration was binding. The chief executiveof LGNZ replied stating it was not binding. On 25 March 2019 the mayor emailedagain stating that her understanding was the Declaration was a contract and a judgecould well infer that by signing it, a commitment was made and it is binding. She saidshe was surprised by the chief executive's reply.[8] On 2 April 2019 the mayor's report dated 19 March 2019 was tabled forconsideration at a TCDC meeting. A councillor moved an alternate resolution thatTCDC "approves the Mayor signing" the Declaration. That motion was lost (six tothree).[9] TCDC then resolved that it:1. Receives the 'Local Government Leaders' Climate ChangeDeclaration' report, dated 19 March 2019.2. Continues to take action, following robust decision-making processes,in response to climate change for our communities.3. Requests staff take a broad view of the actions undertaken to mitigatethe drivers of climate change and scan how other councils areresponding to carbon management and reduction of greenhouse gasemissions.[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 changeoutweigh the costs;(d) that the Thames-Coromandel District will be significantly impacted bythe 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 understandthe basic elements of the scientific consensus on the predicted impactsof anthropogenic climate change;(g) that in preparing the report dated 19 March 2019, the mayor failed tounderstand or did not accept the scientific consensus on the predictedimpacts of anthropogenic climate change;(h) that the report proposed, in effect, that the Declaration should not besigned by TCDC;(i) that TCDC did not consider any materials other than the report whendeciding whether to sign the Declaration;(j) that TCDC resolved by a majority (six to three) not to approve thesigning of the Declaration; and(k) that in making the decision, TCDC erred in law by failing to considerrelevant considerations (including provisions of the Local GovernmentAct 2002), and acted unreasonably.Strike out[12] Before discussing the competing arguments, I refer to the applicable legalprinciples which are not really in dispute.Approach on strike out applications[13] The approach on strike out applications on the ground of no reasonablyarguable cause of action is well established.2 The Court proceeds on the assumptionthat the facts pleaded in the statement of claim are true. Before the Court may strikeout proceedings, the causes of action must be so clearly untenable that they cannotpossibly succeed. The jurisdiction is to be exercised sparingly, and only in a clear casewhere the Court is satisfied it has the requisite material.[14] That is so in judicial review. Strike out applications in judicial review areunusual. However, there is no dispute that a judicial review proceeding can be struckout. That was confirmed by the Court of Appeal in Te Whakakitenga O Waikato vMartin.3[15] I note that judicial review proceedings are subject to particular control underthe Judicial Review Procedure Act 2016 (JRPA). Although it makes no difference inthis case given the earlier direction of Downs J that the strike out application be heardbefore the substantive hearing, Cooke J has observed that under the JRPA (unlike theJudicature Amendment Act 1972) it may be that not all High Court Rules haveautomatic application.4 Instead, under the JRPA questions of procedure are regulatedby the case management conference contemplated by s 13, which encompasses the2 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267, approved in Carter HoltHarvey Ltd v Ministry of Education [2016] NZSC 95, [2017] 1 NZLR 78 at [10]; Couch vAttorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].3 Te Whakakitenga O Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173 at [16].4 Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166 at [17]-[19].See also Wilson v Dept of Corrections [2018] NZHC 2977 at [4]-[13], and Rabson v JudicialConduct Commissioner [2019] NZHC 2279 at [13].orders that the Court can make under s 14. Strike out is not one of the orders listed ins 14. As the provisions of the Act would be expected to prevail over the High CourtRules if there was a conflict, the relevant High Court Rules may apply but subject tothe Court's control under ss 13 and 14. This approach is consistent with the generalapproach to judicial review procedure, and with the view expressed in earlier Court ofAppeal decisions that the former s 10 (now ss 13 and 14) was to some extent intendedto be a procedural code for judicial review.5 It allows judicial review proceedings tobe managed in a case appropriate way. As Cooke J said, the better view may be thatno 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 injudicial review proceedings are ultimately subject to judicial control under ss 13 and14.[16] As Mr Salmon, counsel for HCCA, submitted, judicial review operates as acheck 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 exerciseof statutory powers, including a statutory power of decision. A statutory power ofdecision 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 anyperson, or(b) the eligibility of any person to receive, or to continue to receive, abenefit or licence, whether that person is legally entitled to it or not.5 See, for example, Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at353 and Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997]1 NZLR 650 (CA) at 656–657.6 Section 4.[18] The JRPA (which re-enacts Part 1 of the Judicature Amendment Act) does notderogate from the Court's judicial review powers under the common law.7 While themodern view is that the Court has the power to review all exercises of public powerwhatever their source,8 the Court accepts that some exercises of public power are notsuitable for judicial review because of their subject matter.9The Declaration[19] Mr Neutze, counsel for TCDC, submitted that its decision is not amenable tojudicial 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 containbinding commitments. While he acknowledged that the issue is whether TCDC'sdecision, rather than the Declaration, is amenable to judicial review, he submitted thatthe aspirational non-binding nature of the Declaration is instructive.[20] Mr Neutze referred to documents which he says are consistent with hissubmission that the signatories intended that the Declaration not create bindingcommitments. An email from the chief executive of LGNZ to TCDC's mayor dated22 March 2019 expressed the view that the Declaration does not create any legalobligation whatsoever on councils. Also, a media report dated 21 February 2019indicated one signatory's view that it is not a binding contract.[21] Mr Neutze noted that if the Declaration does create binding commitments oncouncils, that will reinforce the mayor's (and TCDC's) view that it should not sign theDeclaration, 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 amisunderstanding of the Declaration. Also, the mayor's email reply to the chiefexecutive of LGNZ doubts, and expresses surprise at, that contrary view. He also7 Mercury Energy Ltd v Electricity Corp of NZ Ltd [1994] 2 NZLR 385 (PC) at 388.8 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [89], citing Wilson vWhite [2005] 1 NZLR 189 (CA) at [21] which referred to powers having public consequences.9 Ririnui v Landcorp Farming Ltd at [89].submitted that the email recently disclosed by TCDC suggests there may be furtherdocuments relevant to the issue of whether TCDC acted irrationally.[23] I doubt whether the emails referred to would be admissible factual backgroundin relation to the meaning and legal effect of the Declaration. Acknowledging it is nota commercial contract, the subjective views of signatories would not appear to berelevant, let alone the views of non-signatories.[24] While the proper interpretation of an instrument such as the Declaration is amatter 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 Courtshould not determine the nature and effect of the Declaration – in contractual or publiclaw / legitimate expectation terms – on this strike out application. At this stage, theCourt does not have contemporaneous evidence providing an appreciation of theDeclaration's factual matrix – indeed this proceeding does not involve any signatoriesto 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 judicialreview.[25] Secondly, Mr Neutze submitted the Declaration is signed by local governmentleaders, mayors and chairs, in their own capacity, not for and on behalf of theirCouncils. Therefore, it was the mayor's decision whether to sign the Declaration andTCDC could not direct her to do so. TCDC was merely resolving not to recommendhow she exercised her discretion.[26] Mr Salmon submitted that the mayor has no independent power, and theresolution seeking to authorise the mayor to sign (which failed to pass) was directingthe 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 theirsignatures are identified by their names and Councils, but the signature blocks do notstate "for and on behalf of" their respective Councils. However, there is someambiguity in the Declaration as other parts indicate they are signing on behalf of theirCouncils. For example, the Declaration states "We have come together, as a group ofmayors and chairs representing local government from across New Zealand to outline key commitments our councils will take". The commitments are in a sectionentitled "Council Commitments". It is a Council-focused document. That was alsoreflected 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 governedby the Local Government Act 2002. Under s 41, a regional council must have agoverning body consisting of members elected in accordance with the Local ElectoralAct 2001 and a chairperson elected by members of the regional council.10 A territorialauthority must have a governing body consisting of members and a mayor elected inaccordance with that Act.11 The role of a mayor is to provide leadership to the othermembers of the territorial authority and the people in the district of the territorialauthority.12 Mayors have such a leadership role and certain specific powers ofappointment 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 withoutgoing through the processes in the Local Government Act, I consider it is at leastarguable that in context the resolution, if passed, would have required rather thanmerely approved the mayor to sign the Declaration and that the mayor would havebeen signing for TCDC rather than in her own capacity. On that basis, Singh andDeliu, which involved recommendations rather than decisions, are distinguishable.13Other grounds[30] In terms of the JRPA, Mr Neutze accepted that the decision was one by a publicbody, but submitted it is not a "statutory power of decision". The decision was merelynot to "approve" the mayor signing the Declaration. Again, he submitted it was the10 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] NZCA220, [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 tojudicial review outside of the JRPA, but submitted that there is insufficient publicinterest or public consequences to found jurisdiction in this case.[31] Mr Neutze acknowledged in oral submissions that if the Court did notdetermine that the Declaration was only aspirational or that it was the mayor's decisionwhether to sign, his further argument that the application for judicial review could notsucceed should be addressed at a substantive hearing. I consider that concession wasproperly made. There are competing considerations which are better assessed at thesubstantive application for judicial review, not determined on a strike out. On the onehand, TCDC's decision arguably involves an exercise of public power on an issue ofimportance to the public. As Mr Salmon submitted, this is not a case involvingconsideration of whether the public power is essentially commercial, such as Lab TestsAuckland 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 decisionand that there may be an issue whether it is therefore justiciable (while noting thatpolicy decisions can be justiciable, for example, on procedural grounds, andsubmitting that TCDC's decision was binary and distinguishable from cases seekingto draw the Courts into the detail of a policy scheme, such as Curtis v Minister ofDefence).15[33] Whether the decision is suitable for judicial review will require an assessmentof the decision in context with the benefit of a statement of defence scoping the issuesand possibly limited discovery and/or evidence on TCDC's decision-making process.At this stage, applying orthodox strike out principles, including assuming the factspleaded in the statement of claim are true, it is arguable that the decision is amenableto judicial review. Leaving aside the pleaded scientific consensus on climate change(which HCCA does not expect TCDC would deny given the pleading reflects theconclusions in the Intergovernmental Panel on Climate Change (IPCC) reports that14 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 thelimited material which may be put before the Court on a strike out application.15 Curtis v Minister of Defence [2002] 2 NZLR 744 (CA) at [28].New Zealand has ratified),16 the pleaded facts also include that TCDC has no climatechange mitigation policy (albeit Mr Neutze submits the case is not about that),that when deciding whether to sign the Declaration TCDC did not consider anymaterials 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 onthe predicted impacts of anthropogenic climate change. The claim that TCDC'sdecision involved a failure to take into account relevant considerations and/or wasunreasonable, in the sense of irrational, is not so clearly untenable that it cannotpossibly succeed.[34] Given my conclusion at this strike out stage, I say no more about whether thesubject matter of the decision makes it unsuitable for judicial review.[35] It is also unnecessary to determine whether TCDC's decision is a "statutorypower of decision" under s 4 of the JRPA. Even if that is stretching the meaning ofeligibility to receive a "benefit" in s 4, the JRPA does not derogate from the Court'sjudicial review powers under the common law.Security for costs[36] Turning to security for costs, TCDC seeks security of $25,000 based on itsestimate 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 ands 17(1) of the Incorporated Societies Act 1908. The issue under the High Court Rulesis whether ordering security for costs is just in all the circumstances.18 I approach thediscretion under s 17(1) in the same way.[38] As the Court of Appeal said in A S McLachlan Ltd v MEL Network Ltd:19Whether 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) 16 PRNZ 747 (CA) at [13].The discretion is not to be fettered by constructing 'principles' from the factsof previous cases.[39] For TCDC Mr Hughes raised the following factors relevant to the exercise ofdiscretion:(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 whowill 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:20The discretion is a broad one. It may be exercised to require security even ifthat may prevent a plaintiff from pursuing a claim. But access to the Courtfor a genuine plaintiff is not lightly to be denied. In A S McLachlan Ltd v MELNetwork Ltd this Court summarised the position:[15] The rule itself contemplates an order for security where the plaintiff will beunable to meet an adverse award of costs. That must be taken as contemplating alsothat an order for substantial security may, in effect, prevent the plaintiff from pursuingthe claim. An order having that effect should be made only after careful considerationand in a case in which the claim has little chance of success. Access to the Courts fora genuine plaintiff is not lightly to be denied.[16] Of course, the interests of defendants must also be weighed. They must beprotected 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 thatapplications for security for first instance proceedings call for careful considerationand judges are slow to make an order for security which will stifle a claim.2120 Lee v Lee [2019] NZCA 345 at [20], citing A S McLachlan Ltd v MEL Network Ltd (2002)16 PRNZ 747 (CA) at [15]-[16].21 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [3] referring to A S McLachlanLtd v MEL Network Ltd.[43] As to the nature of the careful consideration required, the Court of Appeal saidin Lee v Lee:22Normally the court will only endeavour to assess the merits and prospects ofsuccess of the claim by way of overview We do emphasise, however, thatan application for security for costs should not generally become anopportunity to explore the merits in any depth.[44] This also reflects the Court of Appeal's earlier statement in A S McLachlan Ltdv MEL Network Ltd that, at best, in a complex matter, assessment at the interlocutorystage can be no more than impression and cannot be a definite indicator of the ultimateoutcome after trial.23[45] Mr Tegg's affidavit for HCCA explains the very limited assets of the HCCAand 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 realpossibility it will no longer be able to advance its claim. He also says that the costsare such that if HCCA cannot afford to proceed with its claim, the decision's legalitywill never be litigated.[46] Mr Hughes submitted that HCCA has not substantiated its position that securitywill prevent the claim being pursued with evidence about the individual means of itsmembers and whether they could finance the claim. I accept HCCA's evidence is notclear that security will stifle the claim. But this is not a case where the plaintiff hasfailed to provide information about its financial position and an adverse inference maybe drawn.24 The lack of evidence from individual members does not negate Mr Tegg'sevidence, which I infer has attempted not to overstate the position. I accept there is areal possibility that security of a substantial sum will prevent HCCA pursuing theclaim – at least on the basis that fundraising (from members or otherwise) is notassured – but it cannot be assumed that any order for security will stop the claim frombeing pursued.22 Lee v Lee [2019] NZCA 345 at [73].23 A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [21]. See also Highgate onBroadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [22(c)].24 Save Happy Valley Coalition Inc v Minister of Conservation HC Wellington CIV-2006-485-1634,18 September 2006 at [8].[47] TCDC's legitimate interest in recovering costs if successful must be balancedagainst 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 whowill be spared the risk of costs exposure, and whether the litigation is brought in thepublic 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 bespared the risk of costs exposure, it may be appropriate to order security.25 I acceptthat HCCA is in effect a nominal plaintiff representing the interests of others. It wasformed for a range of purposes relating to advocacy and awareness of climate changeissues. The timing of its incorporation suggests it was at least in part for the specificpurpose of this proceeding and sparing its members the risk of costs exposure. ButI consider the significance of this factor depends on whether the proceeding is broughtin the public interest and whether there is some measure of personal benefit for thoserepresented (here the members of the incorporated society).[49] The public interest or "watchdog" principle is well established – the publicinterest exception to the normal rule that costs follow the event is available where thecase concerns a matter of genuine public interest beyond the interests of the immediatelitigant, the case has merit, and the litigant concerned has acted reasonably.26Accordingly, the presence of such a public interest element is a factor to be weighedwhen considering security for costs.27[50] I accept, as Venning J did in New Zealand Climate Science Education Trust vNational Institute of Water and Atmospheric Research Ltd,28 that the issue of climatechange may be seen as a matter of public debate. This proceeding clearly has a public25 Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [22(a)]; andPurau 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 AtmosphericResearch Ltd [2013] NZCA 555 at [11]-[13], referring to Ratepayers and Residents Action AssocInc 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 theEnvironment HC Auckland M22-PL03, 15 April 2003.28 New Zealand Climate Science Education Trust v National Institute of Water and AtmosphericResearch Ltd [2012] NZHC 3560 at [46].interest dimension. Whether TCDC's decision is amenable to judicial review remainsan 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 theproceeding will bring members of an incorporated society some measure of personalbenefit, it may not be unreasonable to expect them to assist with funding to providesecurity.30 But in this case I do not infer that members of HCCA are acting for personalpecuniary gain or benefit. Indeed, the suggestion that as property owner ratepayers (ifthey are) they will personally benefit seems somewhat inconsistent with the suggestionthat the costs of signing the Declaration may outweigh the benefit. I consider thisreduces 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 TCDCsucceeds, the public interest exception to the normal costs rule may apply – but thiswill likely depend on whether it is considered at the conclusion of the proceeding thatHCCA's claim had merit and it acted reasonably.[53] The claim has a relatively narrow focus on the binary decision by TCDC as towhether the mayor could (that is, should) sign the Declaration. The possibility ofdiscovery cannot be ruled out, but would be dependent on TCDC's pleaded defence tothe key allegations relating to the decision-making process and in any event should belimited in this judicial review context. As Mr Salmon proposed, the hearing should beaccommodated in a day. The scope of the proceeding should only expand beyond thatif TCDC puts in issue the pleaded scientific consensus, which I was told reflects theconclusions in the IPCC reports that New Zealand has ratified. That seems unlikely.Indeed, it would appear rather inconsistent with TCDC's position on amenability ofjudicial 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 ofoverview only. Mr Hughes submitted that TCDC's opposition has real merit.29 Nelson Gambling Taskforce Inc v Nelson City Council HC Nelson CIV-2010-442-000368,16 December 2010 at [63]-[64].30 At [73]-[74].HCCA has survived strike out despite TCDC's arguments as to the nature and effectof the Declaration. The decision is arguably reviewable – there remains an openquestion as to justiciability given the subject matter of the decision. TCDC has yet toplead 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 alsopremature to attempt to consider factors relevant to the Court's exercise of discretionwhether to grant relief. I do not consider the merits weigh particularly either way inthe 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 theother factors referred to, I consider that security should not be ordered. Security basedon TCDC's estimate of 2B costs would be inappropriate. While a modest award ofsecurity (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 focuson the binary decision by TCDC weigh against ordering security and outweighTCDC'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 ofno more than three pages – HCCA within 10 working days and TCDC within a furtherfive working days. I will determine costs on the papers.________________________________Gault J