Reid v Tararua District Council

[2009] NZCA 384

IN THE COURT OF APPEAL OF NEW ZEALAND

CA413/2009
[2009] NZCA 384

BETWEENJAMES ROBERT REID

Applicant

ANDTARARUA DISTRICT COUNCIL

First Respondent

ANDTHE MINISTER FOR LAND INFORMATION

Second Respondent

Counsel:Applicant in person

Judgment:1 September 2009 at 2.30 pm 

JUDGMENT OF ARNOLD J

The application for review of the Deputy Registrar’s decision refusing to waive the payment of the filing fee is dismissed.

REASONS

[1]       Mr Reid has applied for an extension of time within which to file an appeal.  The appeal which he wishes to bring is against a judgment of Ellen France J in Reid v Tararua District Council HC WN CIV-2003-454-615 8 November 2004.

[2]       A filing fee of $900 is payable.  Mr Reid applied for a waiver of this fee on the ground that the proposed appeal raised matters of genuine public interest.  He described these in his application form as follows:

Whether an undertaking given to the High Court to secure the dismissal of a judicial review is enforceable.  Whether the breach of such an undertaking entitles a party to appeal out of time.

[3]       A Deputy Registrar refused his application, on the ground that the matters raised were not of genuine public interest.  In reaching this conclusion, the Deputy Registrar noted that the proposed appeal is five years out of time. 

[4]       Mr Reid has now applied for a review of that decision.  The grounds for his review application are as follows:

The breach of an undertaking recorded as “fact” by the High Court undermines judicial authority.  Repeated attempts to have the undertaking honoured have resulted in the delay in appealing the decision.  The respondents continue to sell public land illegally as a result of the decision.  (Refer Reid v Her Majesty’s NZ Government [2008] NZCA 417.)

[5]       Mr Reid’s proceedings concern the Tararua District Council’s sale of some land in Woodville.  Mr Reid was interested in purchasing the land but it was sold to someone else.  In his proceedings Mr Reid alleged, among other things, that the Council had given him an undertaking as to the type of sale process it would adopt and had not lived up to it.  Ellen France J rejected this claim on both the facts and the law. 

[6]       A further issue in the proceedings was whether the Council had complied with provisions of s 230 of the Local Government Act 1974 relating to the sale of endowment land.  At [115] of her judgment the Judge records the Council’s advice that it had set aside the proceeds of the sale and would apply them towards the improvement of other endowment land held by the Council when a suitable opportunity arose.  At [117] the Judge accepted that this resolved any issue about the status of the land under s 230, although it was not the sole reason for this aspect of the Judge’s decision. 

[7]       It appears from the application seeking an extension of time to appeal that Mr Reid considers that the Council has not acted consistently with this “undertaking”.

[8] To some extent Mr Reid’s proceedings did highlight an issue of public importance. Initially the Council did not accept that Part 6 of the Local Government Act 2002 applied to the sale. However, by the time of the hearing, the Council accepted that it did apply. The Judge held that the Council did sufficient to comply with the substance of the relevant provisions, albeit that it did so “by accident”: at [148].

[9]       Accordingly, there is no longer any dispute about that issue.  As to the Council’s “undertaking”, it is difficult to see how the question whether or not the Council has retained and applied the proceeds of sale as it said it would could be resolved on an appeal against Ellen France J’s judgment, given that determination of that issue would require further evidence and, possibly, cross-examination.  In any event, as I have said, that was not the only reason for the Judge’s decision on this aspect of the case, and it is difficult to see how non-compliance could affect the result of the case at this late stage.

[10]     In these circumstances, I agree with the Deputy Registrar that the proposed appeal does not raise a matter of genuine public interest sufficient to justify a waiver of the filing fee, particularly against the background of the five year delay in bringing the appeal. 

[11]     Accordingly, I reject Mr Reid’s application for review of the Deputy Registrar’s decision.  Mr Reid must pay the $900 filing fee.