BRIGHT v AUCKLAND COUNCIL [2018] NZHC 1054

BRIGHT v AUCKLAND COUNCIL [2018] NZHC 1054 [16 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-000753[2018] NZHC 1054UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for interim reliefBETWEEN PENELOPE MARY BRIGHTApplicantAND AUCKLAND COUNCILRespondentHearing: 14 May 2018Appearances: Applicant in personKF Quinn for RespondentJudgment: 16 May 2018JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 16 May 2018 at 9 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Auckland Council, Legal Services.Copy to: ApplicantAn unfortunate case[1] Ms Penny Bright has refused to pay her rates since May 2007. She now owesthe Auckland Council approximately $69,000, or nearly $89,000 if one includes legalcosts.1 Ms Bright's objection has nothing to do with the legality of her rates; sherefuses to pay until the Council is more "transparent". Ms Bright's position thereforereflects moral choice—not legal grievance. Her own words are illustrative:2[I have] taken a public stance to boycott payment of the rates until such timethe defendant complied with the transparency requirements of the PublicRecords Act 2005 ... to ensure the following details of awarded contracts werepublished on the websites of Auckland Council and Auckland Councilcontrolled organisations ... thus available for public scrutiny[2] Forced sale of Ms Bright's home is imminent under the Local Government(Rating) Act 2002 (the Act). Indeed, the process is well advanced. Sadly, Ms Brightis terminally ill with cancer.[3] Ms Bright seeks to judicially review the Council's decision to pursue sale ofher home under the Act. Put broadly, judicial review involves an examination of thelegality of a decision or process. No date is yet set for that hearing. Ms Bright seeksinterim relief—essentially, a halt of the sale process until then. She continues to actfor herself.[4] I heard Ms Bright's application on 14 May 2018. I said I would release myjudgment by 9 am today.Additional background[5] Little additional background is necessary beyond the briefest of timelines.[6] On 18 January 2016, Judge G M Harrison in the Auckland District Court heldMs Bright was liable to pay the Council $34,182.56 in unpaid rates and penalties.31 As at 24 April 2018, Ms Bright owed $68,915.68, the bulk of which comprises penalties foroverdue payment. Ms Bright must also contribute to the Council's legal costs in respect of thislitigation. Her total indebtedness to the Council is $89,539.16.2 Statement of Claim at [5] (emphasis added).3 Auckland Council v Bright [2016] NZDC 486.The Judge concluded Ms Bright's transparency campaign did "not entitle her todecline to pay rates otherwise lawfully imposed on her as a ratepayer".4[7] Ms Bright appealed. The appeal was heard by Venning J, the Chief High CourtJudge. The Judge dismissed the appeal on 11 July 2016.5[8] Venning J held Ms Bright was "simply wrong" to consider the Public RecordsAct 2005 had anything to do with her case.6 And, there was "no connection at lawbetween the Council's obligations under the Public Records Act, its powers to imposeand collect rates under the Local Government (Rating) Act and Ms Bright's obligationas a ratepayer to pay rates under that Act".7 The Judge ended:8None of the issues that Ms Bright raise amount to a defence to the Council'sclaim for rates. Ms Bright may wish to make a point about the Council'sobligations under the Public Records Act and the Local Government Act, butthese proceedings are not an appropriate vehicle to do so. Ms Bright, likeother ratepayers, has an obligation to pay the rates that have been validlyassessed as payable by her. Her refusal to do so simply increases theadministration costs of the Council.[9] On 30 September 2016, the Council advised Ms Bright it would pursue a ratingsale if she did not pay within three months or postpone her rates.[10] On 7 March 2017, the Council applied to sell Ms Bright's home.[11] On 1 May 2017, the Registrar of the High Court gave Ms Bright notice herhome would be sold in six months' time. Meanwhile, the Council continued toencourage Ms Bright to make payment or engage postponement. It wrote to her on3 May, 29 June, 2 October and 28 November 2017. And, on 22 January, 2 February,26 February and 22 March 2018. Ms Bright did not reply.[12] Tenders closed on 24 April 2018. Ms Bright filed this application the daybefore.4 Auckland Council v Bright, above n 3, at [26].5 Bright v Auckland Council [2016] NZHC 1560.6 At [14].7 At [17].8 At [28].[13] On 27 April, Woodhouse J held the Registrar may accept the best offer butotherwise take no steps until this application is determined.[14] On 10 May 2018, the Council offered Ms Bright a "short" adjournment of thishearing—on the assumption Woodhouse J's orders would endure—until a clearerpicture emerged of Ms Bright's anticipated medical treatment. Ms Bright declinedthat invitation. She wanted the hearing to proceed.9Principle[15] Interim relief is available when it is necessary to preserve the position of theperson seeking it.10 As Edwards J recently observed, the word "necessary" bears itsnatural meaning without gloss or restriction; interim relief protects an applicant whomay otherwise be unfairly prejudiced by delay in determination of their substantivecase.11 If this threshold is crossed, curial assessment then looks to totality ofcircumstance to determine if interim relief is appropriate.12A précis of the case for interim relief[16] Ms Bright contends interim relief is necessary or she will lose her home of28 years. Forced sale may attract a price appreciably below market value.13Unsurprisingly, Ms Bright also places weight upon her recent diagnosis. Ms Brightwishes to remain "safe and secure" in her home during treatment. Or, until the end.[17] Ms Bright considers her judicial review suit has a reasonable prospect ofsuccess. It alleges the forced sale is a product of malice on the part of the Council'sChief Executive Officer, Mr Stephen Town, and a disproportionate reaction by a"bullying" local authority against a public watchdog.9 See Bright v Auckland Council HC Auckland CIV-2018-404-000753, 10 May 2018 (Minute).10 Judicial Review Procedure Act 2016, s 15(1). Ms Bright's papers refer to an interim injunction.However, the application is properly treated as one for interim relief under this Act. In any event,the outcome would be the same.11 Foodstuffs North Island Ltd v Alcohol Regulatory & Licensing Authority [2018] NZHC 988at [13].12 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).13 Prospective purchasers have not been able to view the property, presumably because Ms Brighthas not let them.Is relief necessary?[18] I am satisfied interim relief is unnecessary, even though a sale would be a heavyblow for Ms Bright.[19] First, other relief is readily available. Most obviously, Ms Bright could chooseto pay her rates and arrears. Or, choose to enter a postponement arrangement with theCouncil. As its name implies, a postponement arrangement defers payment of rates,typically until the ratepayer sells the property or dies. Ms Bright's circumstanceswould satisfy the Council's postponement policy. But either way, the rating sale ofher home would not proceed. Each option may well be anathema to Ms Bright.However, this case is unusual in that alternative relief lies within reach, but remainsunexercised—through choice.[20] Second, that choice engages false linkage. Ms Bright described her stance atthe hearing as a "one-person rates revolt", but said she was prepared to "work with"the Council if it acceded to her demand to publish specified information about privatecontractors. However, as two Judges have already found, there is no connection inlaw between this species of demand and payment of rates. The point is perhaps betterillustrated another way: Ms Bright could pay or postpone her rates and still exerciseher right to campaign for "transparency". Again, there is no linkage recognised bylaw between a ratepayer's obligation to pay rates and obligations on a public bodyunder the Public Records Act.[21] Third, it is not open to an applicant—even one with acute and distressingpersonal circumstances—to flout the law, and then, at the eleventh hour, invokenecessity as a basis for relief against action contemplated by Parliament; longforeshadowed by the Council in the event of non-compliance; and ultimately directedat fair distribution of cost of public amenities.[22] For completeness, I consider discretionary matters below.Totality of circumstanceProspect of success[23] Contrary to Ms Bright's submission, her judicial review suit has very littleprospect of success. No evidence of malice is apparent from the record.[24] Ms Bright placed weight upon Mr Town's October 2014 observation:"Ms Bright has made wild and inaccurate accusations about the Council and itsprobity", in relation to which Ms Bright sued Mr Town for defamation. However, thatsuit was dismissed by Associate Judge Smith on 13 February 2017.14 Materially, theJudge considered there was "nothing to suggest the Council's expressed willingnessto consider other options for Ms Bright, including a rate's postponement arrangementwas in any way indicative of ill will on the part of Mr Town".15[25] Ms Bright also invited attention to the fact Mr Town initiated the rating saleprocess. However, under the Act, only the Chief Executive Officer may do so.16[26] The balance of the suit alleges Ms Bright has been unfairly targeted by theCouncil. It too has very little prospect of success. Ms Bright has been repeatedlyinvited to pay her rates, postpone them, or enter a suitable arrangement. Ms Brighthas made it clear she will not do so unless the Council first accedes to her"transparency" demand.[27] Ms Bright invited attention to affidavits from two city councillors,Ms Catherine Casey and Mr Wayne Walker, which speak of her sincerity and utility ofher advocacy. This evidence is misplaced. Even if one accepts Ms Bright's advocacyadvances the public interest, Ms Bright still has legal obligations as a ratepayer. Theseare not affected by the ratepayer's idiosyncratic view of the Council or its policies;whether the ratepayer is a "good citizen"; 17 or by characterisation of the ratepayer as"public watchdog". Any other approach would be antithetical to the rule of law.14 Bright v Town [2017] NZHC 141.15 At [73].16 Local Government (Rating) Act 2002, s 67(2)(a).17 Ms Bright noted she had won a "good citizen" award.[28] Furthermore, the question is not whether Ms Bright believes she is beingunfairly targeted by the Council, but whether there is evidence to support thatcontention. None is apparent from the record. Unsurprisingly, almost all recalcitrantratepayers have settled in the face of a rating sale. That Ms Bright has not done sodoes not make the Council's action unfair, disproportionate or retaliatory.[29] Indeed, the same point was raised before Judge Harrison in the District Courtin 2016. Ms Bright then described the proceedings as a "malicious and vindictive useof municipal power".18 The Judge rejected the argument, holding: "I ... discern noimproper purpose in these proceedings. The Council has a duty to collect rates infairness to all other ratepayers within the Council's district".19[30] Ms Bright submitted the Council could obtain a charging order, and theabsence of one implied disproportionality. However:(a) A charging order is not a complete remedy for the Council. Such anorder is subject to the six-year time bar of the Limitation Act 2010 anddoes not compel payment of rates.20(b) The Council's rating policy—which it adduced in evidence—does notrequire a charging order as a prerequisite to a rating sale.21 Nor doesstatute.22(c) A charging order is for the benefit of the creditor, not debtor.18 Auckland Council v Bright, above n 3, at [24].19 At [25].20 Local Government (Rating) Act, s 66(2).21 Ms Bright appended material from the Council to her (two) affidavits, but not the policy itself.The Council approved the policy on 7 March 2013. It provides a rating sale will not be conductedunless arrears are at least $5,000 or one percent of the value of the property. The policy also"contains safeguards to ensure ratepayers with genuine payment issues are given everyopportunity to address them".22 The Act provides for charging orders—see, for example, s 66—but does not require them.Private and public repercussions[31] Ms Bright's personal circumstances favour relief. So too consequence if reliefis not granted: Ms Bright will lose her home, perhaps at undervalue. The significanceof this mix is obvious. And distressing.[32] However, as observed above, there is very little prospect judicial review willsucceed. Interim relief would be transitory—and illusory—unless Ms Bright pays herrates or postpones them. The Act contemplates a sale in this context; Ms Bright haslong known as much; and her choice has forced the Council's hand. To recapitulate,there is no linkage in law between Ms Bright's position in relation to "transparency"and payment of rates, a view made clear by earlier judgments in this case.23Overall assessment[33] Ms Bright's circumstances are unfortunate. However, those in relation to theCouncil are entirely of her own making. Interim relief would not be appropriate evenif the threshold for relief had been crossed, which it has not. It is not open to aratepayer to "boycott" rates or engage in a "rates revolt" for more than a decade andthen argue statutorily envisaged consequence should not follow: no one is above thelaw. And, other immediate relief is at hand but unexercised through moral choice, notlegal grievance.Orders[34] Ms Bright's application for interim relief is dismissed.[35] The orders made by Woodhouse J lapse. The sale may continue...Downs J23 See [6]–[8].