URBAN AUCKLAND, THE SOCIETY FOR THE PROTECTION OF AUCKLAND CITY AND WATERFRONT INC v AUCKLAND COUNCIL [2015] NZHC 1183

URBAN AUCKLAND, THE SOCIETY FOR THE PROTECTION OF AUCKLAND CITY AND WATERFRONT INC v AUCKLAND COUNCIL [2015] NZHC 1183 [28 May 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-000719[2015] NZHC 1183BETWEEN URBAN AUCKLAND, THE SOCIETYFOR THE PROTECTION OFAUCKLAND CITY ANDWATERFRONT INCApplicantAND AUCKLAND COUNCILFirst RespondentPORTS OF AUCKLAND LIMITEDSecond RespondentHearing: 28 May 2015 (by teleconference)Counsel: M S R Palmer QC for ApplicantA M Adams and N Whittington for First RespondentM R Crotty for Second RespondentH R Coleman for Kawau Island Action IncorporatedJudgment: 28 May 2015Reasons: 28 May 2015JUDGMENT OF VENNING JDECLINING APPLICATION FOR JOINDERThis judgment was delivered by me on 28 May 2015 at 5.00 pm, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandMadison Hardy, AucklandRussell McVeagh, AucklandCopy to: Dr M S R Palmer QC, WellingtonA R Galbraith QC, AucklandJ A Farmer QC, AucklandK R M Littlejohn, AucklandH R Coleman[1] The application by Urban Auckland, the Society for the Protection of Auckland City and Waterfront Inc (Urban Auckland) for judicial review of theCouncil's decision granting consent to Ports of Auckland Limited (POAL) to extend the Bledisloe Wharf is for a substantive hearing over three days commencing Tuesday, 3 June 2015.[2] The Kawau Island Action Inc Society (KIA) seeks to be joined to the proceedings. KIA has as its object: "To oppose commercial and unnecessary private development within the Coastal Marine Area and Coastal Environment of Auckland City in particular, including Waiheke Waitemata Harbour and Kawau Island". Mr Coleman, the chair of KIA seeks leave to be heard and to represent KIA at the proceedings.[3] Urban Auckland abides the decision of the Court. KIA and Mr Coleman'sapplication are opposed by the Council and POAL.[4] I convened a telephone conference to deal with the application. At theconclusion of the conference, after considering the material filed by Mr Coleman onbehalf of KIA and hearing from counsel and Mr Coleman, I declined the applicationfor joinder with reasons to follow. These are the reasons.[5] Although the application was styled as an application for an order permitting KIA to join the proceedings Mr Coleman was unable to identify the legal basis for the application other than to submit generally that it was in the interests of justice for KIA to be joined.[6] In Wellington International Airport v The Commerce Commission Ellen France J discussed the relevant legal principles of joinder to a judicial review proceeding.1 Her Honour held that the issue was whether the rights of the partiesseeking to be joined were affected with the Court's object being to avoid injustice byexcluding them. In that case Air New Zealand and Qantas were both joined to the1 Wellington International Airport v The Commerce Commission CP151/02, 19 July 2002 (HC).review proceeding as their rights would be affected by the ultimate outcome of the process. By contrast, the rules of KIA make it clear that it has no commercial or reputational interest in the outcome of the review.[7] I note that in Kellian v Minister of Fisheries & Ors Doogue J refused joinder on the basis the parties did not have an interest in the proceeding greater than other members of the commercial fishing industry and were not necessarily parties to the proceeding.2[8] KIA does not propose to file any evidence other than Mr Coleman's affidavitand proposes to limit its involvement to submissions. KIA does not intend to file a statement of claim. As such the application is more properly regarded as an application for leave to intervene.[9] In C v Accident Compensation Corporation & Anor the Court of Appeal confirmed the principles to apply when considering whether to grant leave to intervene are well established:3(a) the power is broad in nature, but should be exercised with restraint to avoid the risk of expanding issues, elongation of hearings and increasing the costs of litigation;7(b) in an appeal involving issues of general and wide importance, the Court may grant leave when satisfied that it would be assisted by submissions from the intervener;8 and(c) the power may be exercised more liberally in appeals involving theCourt's special jurisdiction under legislation such as theEmployment Relations Act 2000 and the Rating Powers Act 1988.(footnotes omitted).[10] After hearing from Mr Coleman I am satisfied that to grant leave for KIA to intervene would unnecessarily lengthen the hearing and increase the costs of litigation to the other parties to the proceeding. In that context it is relevant that KIA is apparently in no position to fund any award of costs that might be made against it.2 Kellian v Minister of Fisheries & Ors (2002) 16 PRNZ 223.3 C v Accident Compensation Corporation & Anor [2013] NZCA 34 at [12].KIA was apparently only incorporated after the Council's decision. I infer it wasincorporated with a view to seek to join or intervene in these proceedings.[11] Further, while the issues involved in the review proceedings brought by Urban Auckland raise issues of importance to the people and community of Auckland generally, having heard from Mr Coleman and considered the submissions he proposes to make, I am satisfied the Court will not be assisted by the submissions he intends to advance.[12] While I accept Mr Coleman and KIA are genuinely interested in the outcome of the judicial review and the proposed wharf extension, they have no greater interest than any other member of the public.[13] Next, to the extent that there is anything of substance in the submissions that Mr Coleman proposes to advance I am satisfied the issues will be addressed by Urban Auckland in its submissions. The rather emotive arguments raised by KIA in its submission do not appear to add anything to the arguments that will be advancedby Urban Auckland's counsel.[14] The issues before the Court involve relatively complex factual issues and difficult legal argument. The Court will not be assisted by submissions from Mr Coleman on the law. Mr Coleman is not legally qualified, although I acknowledge he has taken a number of cases before the Courts at various levels.[15] While I do not place much weight on the fact KIA's involvement wouldrequire a response from the respondents or that Mr Coleman would require leave to present submissions on behalf of KIA, (it being an incorporated society), they are also further relevant considerations that count against the grant of leave.[16] The short point is that nothing that Mr Coleman raises suggests the interests of justice will be served by joining KIA to the proceedings.Result[17] The application for leave to join or intervene in the proceedings is dismissed.[18] Costs on the application to lie where they fall.__________________________ Venning J