STAFFORD v THE ATTORNEY-GENERAL [2021] NZHC 1466

STAFFORD v THE ATTORNEY-GENERAL [2021] NZHC 1466 [21 June 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-341[2021] NZHC 1466UNDER the Judicial Review Procedure Act 2016;Part 30 of the High Court Rules; theDeclaratory Judgments Act 1908; and theCommon LawIN THE MATTER of an application for judicial review and/ordeclaratory judgmentsBETWEEN RORE PAT STAFFORDApplicantAND THE ATTORNEY-GENERALFirst RespondentACCIDENT COMPENSATIONCORPORATIONSecond RespondentFIRE AND EMERGENCY NEWZEALANDThird Respondent (discontinued)KĀINGA ORA-HOMES ANDCOMMUNITIESFourth RespondentNELSON MARLBOROUGH DISTRICTHEALTH BOARDFifth RespondentHOUSING NEW ZEALAND LIMITEDSixth RespondentRADIO NEW ZEALAND LIMITEDSeventh Respondent (discontinued)NELSON MARLBOROUGH INSTITUTEOF TECHNOLOGYEighth RespondentTRANSPOWER NEW ZEALANDLIMITEDNinth Respondent (discontinued)Hearing: 10-13 August 2020Counsel: K S Feint QC, M Smith and H Irwin-Easthope for ApplicantJ R Gough, S M Kinsler and W I Gucake for First RespondentD L Laurenson QC and R L Roff for Second RespondentV E Casey QC, R Brown and G Dawson for Fourth and SixthRespondentsJudgment: 21 June 2021JUDGMENT OF ELLIS J(FINAL ORDERS)[1] In my judgment dated 2 March 2021 ([2021] NZHC 335) I asked the partiesfor further submissions on three matters. Memoranda were subsequently filed. Therewas little agreement amongst the parties on those matters, and so a further judgmentis now required.[2] To avoid the need to set out the complex background again, however, thisjudgment should be read in conjunction with the earlier one.[3] The first two things about which I sought further input were:(a) costs (as to which I had indicated a preliminary view that they shouldlie where they fall); and(b) whether the Court should make declarations reflecting the observationsin [185](d) and (e) of the judgment, namely that:(d) Ministers were able to, and should have, advised Crownentities that they were expected to notify Mr Stafford in atimely way of any proposed disposals within the Spain awardarea; but in any event(e) the Crown entities themselves, having been advised of thenature and history of Mr Stafford's claim, are obliged—inKāinga Ora's case by dint of its own statute, but otherwise asa matter of general good faith arising in the particular andunusual circumstances of this case—to notify Mr Stafford ina timely way of any proposed land disposals within the Spainaward area.[4] I also asked for Mr Stafford's further comment on:(a) Why the revised Land Protection Mechanism (LPM) should includelong-term (20 years or more) leases;(b) Who should be responsible for making any further urgent applicationto the Court (Mr Stafford or by the Attorney-General);(c) whether the costs of any such application should be reserved or whetherMr Stafford's should be paid by the Crown on an indemnity basis; and(d) whether the revised LPM should be expressly made subject to anyrelevant statutory requirements, powers or functions.[5] I begin by setting out and addressing the parties' respective positions on thequestion of declaratory relief and costs. I then deal with the questions relating to theLPM.Declaratory relief and costsMr Stafford[6] Mr Stafford seeks declarations reflecting my findings at [185](d) and (e).[7] He accepts that letting costs lie where they fall is appropriate.The Attorney-General[8] The Attorney-General opposes the making of declarations in respect ofMinisters' communications with Crown entities.[9] He also says that costs should follow the event, which (he submits) isMr Stafford failing on his claim for a moratorium on land sales within the Spain awardarea.ACC[10] ACC opposes declaratory relief, but apparently only on the grounds that morespecificity is needed (discussed below).[11] ACC seeks costs on a 2B basis with certification for second counsel.Kainga Ora and HNZL[12] Kainga Ora and HNZL oppose the making of declarations as against it but arecontent to let costs lie where they fall.Discussion: declaratory relief[13] I begin by recording that I do not understand ACC's position on this issue. Theconclusion expressed at [185](d) is essentially backward looking, and is about whatthe Ministers should have done. It does not affect ACC. And I struggle to see howthe conclusion expressed at [185](d) (which is forward looking) could sensibly beinterpreted as affecting the ACC property at all—it has already been determined bythe Court of Appeal that Mr Stafford does not have a caveatable interest over the ACCproperty; it is not capable of being affected by my conclusion.[14] ACC also suggests that the words "in a timely way"1 need to be the subject ofsome sort of definition. But as I think my judgment makes clear, those words simplymean: in a way that gives Mr Stafford a reasonable time to takes steps—if he choosesto do so—to protect any claimed interest in land falling within the Spain award area,in the event of a proposed disposal. For the reasons already given, the words do not,in any event, affect ACC (or do not do so at present, given that it only owns oneproperty in the Spain Award area).1 Which are used in both [185](d) and (e).[15] In short, I can see no need to "clarify" these aspects of the judgment assuggested by ACC.[16] In terms of the wider disagreement between Mr Stafford and the Attorney-General, I have formed the view that declaratory relief is not appropriate, although Ido not agree with all the reasons advanced on the Attorney's behalf. I consider thosereasons omit to acknowledge the complexities arising from the Crown's statutoryrelationship with Mr Stafford created by the Settlement Act. To demean thatrelationship by putting words such as "confidence" and "obligation" in invertedcommas is, in my view, unhelpful. While other Courts may, of course, differ, I alsodo not regard my findings as simply relating to matters of "tone and emphasis".[17] That said, however, I accept the Crown submission that the purpose ofdeclaratory relief is to vindicate legal rights. And as I think the tenor of my judgmentmakes clear, the language of "rights" is inapt when describing the present-dayrelationship between the Crown and Mr Stafford; it is more subtle and complex thanthat. The observations recorded at [185](d) and (e) reflect my view of what is properlyrequired of the Crown and Crown agents to protect Mr Stafford's interests. But theyare not "hard" law findings or conclusions; they are expressions of principle that arenot suitably recorded in declaratory form.Discussion: costs[18] The matter of costs as between Mr Stafford and Kainga Ora/HNZL haseffectively been resolved by consent.[19] As between Mr Stafford and the Attorney-General/ACC, I remain of the viewthat costs should also lie where they fall. Although I accept that Mr Stafford did notsucceed on his "moratorium" argument, the reality is that Mr Stafford effectively hadtwo out of three earlier judicial indications about that issue on his side.2 Moreover, asthe Court of Appeal said in declining to transfer the application for judicial review tothat Court, the proceeding raised an issue of "considerable public importance".3 That2 Collins and Williams JJ "for", Courtney J "against" and Gilbert J declining to express a view.3 Stafford v Attorney-General [2018] NZCA 490 at [37].is a matter specifically referred to in r 14.7 as (potentially) justifying a refusal orreduction in costs.[20] To the extent further reasons are required (which I do not think they are) theunderlying merit of Mr Stafford's substantive claim has already been determined bythe Supreme Court. The ongoing legal complexities arising from that, and from theSettlement Act (of which the application for judicial review was merely amanifestation) cannot by and large fairly be sheeted home to Mr Stafford. While I donot suggest that Mr Stafford will always be immune from costs on that basis, it is amatter that falls in his favour here. As well, the delays in making the decisions relevantto these proceedings, and noted in my main judgment, do not count in the Crown'sfavour in terms of costs.[21] Costs as between all parties will lie where they fall.The revised LPM[22] As far as the revised LPM is concerned, I begin by acknowledging myomission to refer in my earlier judgment to the undertaking filed by the Crown 10 daysafter the hearing. I cannot now say with certainty whether it was merely overlookedby me or whether it was never brought to my attention. In any event, the undertakingwas in materially identical terms to the "draft orders" referred to in my judgment, andwhich formed the basis for my request for further comment.[23] The issue referred to at [4](d) above has effectively been resolved by consentand I do not address it further.[24] As far as the matters referred to at [4](a) to [4](c) are concerned, I have nowcarefully considered the submissions made on Mr Stafford's behalf. But my view onthe other three matters remains as it was at the time of my earlier judgment. Briefly,to reiterate:(a) While I accept that the existence of a long-term lease might constitutean unwelcome medium-term encumbrance on land that is ultimatelyreturned to Mr Stafford, equally, it may not.4 Pending resolution of thesubstantive proceeding the Crown needs to be able to deal with any landwithin the Spain award area in a commercially sensible manner,although I am sure that in doing so it would bear Mr Stafford's claimsin mind. Ultimately, it is the return of the land itself that is offundamental importance to Mr Stafford and I do not consider that willbe impeded by the granting of leasehold interests.(b) In the event the Crown wishes, in future, to dispose of land within theSpain award area Mr Stafford says the Attorney-General should applyto Court for permission to do so. He says that reflects the reality thatthere is now effectively a moratorium on such sales as a result of myjudgment. There are, however, two responses to that. The first is that,even though the Court might, in such a case, support a caveat placed byMr Stafford on such land, as a matter of law, the Crown does notpresently need to seek permission of the Court to sell. So what theCrown would be asking the Court to do were it to make an applicationremains unclear. And secondly, the arrangement now reflected in theCrown's undertaking is intended to govern this kind of situation. Thatundertaking includes the costs arrangements noted below.(c) On the basis that it needs to be Mr Stafford (rather than the Attorney-General) who is the applicant for any interim relief Mr Stafford has aconcern both with his own potential liability for costs and also his owncost-recovery, which he says should be on a full recovery basis. WhileI understand that concern, I do not consider it appropriate or necessaryto deal with that matter in advance; there are simply too many variables.Mr Stafford may, I think, take some comfort form the way I have dealtwith costs in the present proceeding although as I have also made clear,it should be taken as any kind of binding precedent. And as notedearlier, the Crown has not only agreed to pay Mr Stafford's filing feesbut also that the costs of any unsuccessful interim application be4 As I understand it, the land successfully caveated by Mr Stafford in 2012 is subject to leases ofthat kind.reserved until the conclusion of the substantive proceeding. It is notpossible to take the matter further than that, on an advance basis.[25] Given these conclusions—and the fact that the Crown has now given anundertaking in the same form as the draft orders discussed in my earlier judgment—there is no need for formal findings or approval from the Court.Conclusion: orders made[26] Costs lie where they fall, as between all parties.[27] My judgment of 2 March 2021 remains as it is. I decline to make any specificdeclarations consequent upon my conclusions in paragraphs [185](d) and (e), or tomake the clarifications sought by ACC.[28] The draft orders proposed by the Crown at the hearing—and subsequentlyrecorded in the form of a formal undertaking—appropriately protect Mr Stafford'sinterest in Crown-owned land within the Spain Award area._____________________Rebecca Ellis JSolicitors:Pitt & Moore, Nelson for ApplicantCrown Law, Wellington / Meredith Connell, Wellington for First RespondentAccident Compensation Corporation, Wellington for Second RespondentBell Gully, Wellington for Fourth and Sixth Respondents