IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-004906 [2013] NZHC 159

IN THE MATTER OF	the Resource Management Act 1991

BETWEEN	PETER WILLIAM MAWHINNEY, TRUSTEE OF AUCKLAND, AS TRUSTEE IN THE WAITAKERE FOREST LAND TRUST
First Plaintiff

AND	PETER WILLIAM MAWHINNEY, TRUSTEE OF AUCKLAND, AS TRUSTEE IN THE FOREST TRUST Second Plaintiff

AND	PETER WILLIAM MAWHINNEY, TRUSTEE OF AUCKLAND, AS TRUSTEE IN THE SIXTY-SIX AUCKLAND TRUST
Third Plaintiff

AND	AUCKLAND COUNCIL, AS LOCAL AUTHORITY AND CONSENT AUTHORITY
Defendant

Hearing:	4 February 2013

Appearances: P W Mawhinney (Self-represented for First, Second and
Third Plaintiffs) in Person
P A Robertson for the Defendant

Judgment:	11 February 2013

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 11 February 2013 at 5.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

MAWHINNEY and ORS v AUCKLAND COUNCILHC AK CIV-2012-404-004906 [11 February 2013]

[1]       The plaintiffs apply for summary judgment  against the defendant  in this proceeding.  The defendant applies to strike out the plaintiffs’ statement of claim: for summary judgment against the plaintiffs;  and for security for costs.    Each side opposes the other’s application/s.

[2]       There was insufficient time in the allocated one day hearing to deal with all the applications.   However, it was possible to proceed with hearing the plaintiffs’ application for summary judgment against the defendant and part of the defendant’s application for strike-out of the plaintiffs’ claim.  The remainder of the applications will be adjourned and the manner of their disposal determined at a telephone conference following the delivery of this judgment.

The plaintiffs’ claim

[3]       The plaintiffs are concerned about what they consider to be an egregious delay on the part of the defendant in approving applications for, or relating to the proposed subdivision of land.   This involves the defendant exercising statutory authority  under  the  Resource  Management  Act  1991.     They  claim  that  the defendant’s conduct is in breach of an actionable statutory duty.   They claim for breach of statutory duty simpliciter and contend that their claim is so strong that they are entitled to summary judgment in their favour.

[4]       The defendant opposes the summary judgment application.   It could have done so on a number of bases but ultimately, due to the constrained hearing time available, it has focused its opposition to arguing that in law, there is no sustainable claim for breach of statutory duty in the present circumstances.

Analysis

[5]       I have given careful consideration to the plaintiffs’ application for summary judgment.    For  the  reasons  set  out  below,  I  find  that  the  application  must  be dismissed.

[6]       There is a difference between claims for breach of statutory duty where the statute  gives  rise  to  a  statutory  cause  of  action,  and  claims  where  the  statute concerned  does  not  provide  a  statutory  cause  of  action,  but  instead  leaves  the common  law  to  operate  as  well:  see  South  Pacific  Manufacturing  Co  Ltd  v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 (CA) at
297–298.   The later type of claim is based on common law negligence, with the plaintiff  relying  on  the  statutory role  of  the  alleged  wrongdoer  to  establish  the necessary proximity and policy reasons for imposing a common law duty of care: see Attorney-General v Carter [2003] 2 NZLR 160 (CA) at [43].

[7]       At [41]–[43] of Attorney-General v Carter, Tipping J referred with approval to how the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2
AC 633 categorised the various ways in which a damages claim could be brought against persons exercising statutory power.

[41]      In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 the House of Lords held that there was no such cause of action as negligent breach of statutory duty. If the statute itself creates a duty to take care, a breach of that duty will result in a breach of statutory duty simpliciter, not a negligent breach of statutory duty. At pp 730 – 731 Lord Browne-Wilkinson, who delivered the leading speech, said:

“Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (ie irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; (D) misfeasance in public office, ie the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful.”

[42]      A little later at p 732 His Lordship added, as regards his category
(B):

“This category comprises those cases in which the plaintiff alleges (a) the statutory duty and (b) the ‘negligent’ breach of that duty but does not allege that the defendant was under a common law duty of care to the plaintiff. It is the use of the word ‘negligent’ in this context which gives rise to confusion: it is sometimes used to connote mere carelessness (there being no common law duty of care) and sometimes to import the concept of a common law duty of care. In my judgment it is important in considering the authorities to distinguish between

the two concepts: as will appear, in my view the careless performance of a statutory duty does not in itself give rise to any cause of action in the absence of either a statutory right of action (Category (A) above) or a common law duty of care (Category (C) below).”

[8]       In this case, the plaintiffs in the course of making submissions expressly eschewed a claim in common law negligence on the ground it would not allow them to succeed in a summary judgment.   As the plaintiffs have chosen not to bring a common law claim based on negligence against the defendant, they have to establish a claim based on category A of the classification given in X (Minors).  The focus, therefore, must be on whether or not the Resource Management Act  imposes a statutory duty on the defendant that allows a statutory cause of action against it, should it breach that duty.   This requires ascertaining if Parliament intended there should be a cause of action under the statute for economic loss deriving from a breach of the relevant statutory duties.

[9]       The question of a whether a territorial authority might be liable for breach of statutory duty regarding the exercise or omission to exercise powers available to it under the Resource Management Act has already been considered by Fogarty J in a decision of this Court which also involved Mr Mawhinney: see Mawhinney v Waitakere City Council HC Auckland CIV 1999-404-1850, 14 September 2006.   I have carefully considered all that Fogarty J said in that regard and consider that I can do no better than to rely on [46]–[49] of his judgment:

[46]    It is a matter of judgment that I am quite satisfied that the comprehensive character of the processes and remedies within the RMA precludes the need for the Court to identify any additional remedy by way of common law damages. It is not necessary to go into detail. The RMA is replete with procedures designed to ensure fairness, coupled with the ability to go to the Environment Court, at what is in legal terms practically “the drop of a hat”; to seek declarations to clarify the duties of  the consent authorities and/or enforcement orders including against consent authorities. There are also rights of appeal on questions of law from the Environment Court. Parties can also proceed directly to the High Court by way of judicial review against the territorial authorities.

[47]      There is no policy vacuum within which there is a need to identify a common law liability of damages. There can be such vacuums where the Court judges that unless the liability for damages is recognised there might not be sufficient incentive for the statutory duty to be applied.

[48]   Another  compelling  consideration  is  that  essentially  the responsibility the RMA casts on territorial authorities to make plans and then act as consent authorities are duties coupled with discretions as to how the duties are to be discharged. Such duties are not easily breached. If they are simply not exercised then the normal remedy is by way of judicial review seeking an order of mandamus directing the authority to discharge the duty. As already noted, in this case a statute provides the statutory alternative to mandamus by way of enforcement orders and within s 91(3), the power to go to the Environment Court to seek an order directing the Council to move on.

[49]      There is no tenable argument for a cause of action for breach of statutory duty available to the plaintiff.

[10]     If  the  plaintiffs  require  further  convincing,  I  consider  that  the  Court  of

Appeal’s judgment in Minister of Fisheries v Pranfield [2008] NZCA 216, [2008] 3

NZLR 649 provides an insurmountable barrier to the plaintiffs’ claim.  In Pranfield, the Court of Appeal found that the presence of a statutory right of review plus the general availability of judicial review told against the existence of any duty in the Fisheries Act 1986 that was amenable to an action for breach of statutory duty: see [74].  Whilst acknowledging that the presence of other remedies was no more than a starting point that could be displaced by contrary indicators, the Court of Appeal went on to find that as there were no contrary indicators, there was nothing to displace the starting point.

[11]     My  assessment  of  the  Resource  Management  Act  is  that  it  contains alternative remedies in the form of statutory rights of appeal and judicial review; I can see no contrary indication that tells against these being the only available remedies for persons who consider that a territorial authority has failed to exercise its statutory powers and duties.

[12]     The plaintiffs sought to argue that the purpose of the Resource Management Act includes enabling people to use resources to provide for their well-being while sustaining resources for future generations, safeguarding life supporting capacity and dealing with adverse effects on the environment.  The plaintiffs also argue that the Resource Management Act is not just for the benefit of the public at large, as it also provides for and protects the interests of individual landowners, occupiers and subdividers.  However, those aspects of the legislation are not sufficient to establish that  Parliament  intended  that  any  breaches  on  the  part  of  territorial  authorities

exercising decision-making authority under this Act could give rise to an action for damages.

[13]     There is a further reason why the application for summary judgment must fail.  As affirmed in Pranfield at [75], a discretionary power of decision does not create a statutory duty.  The plaintiffs contend that the respondent was at the least under a statutory duty to process their various applications. The respondent contends that it has done so, and that the complaints are more in the nature of the plaintiffs not being happy with the outcome.

[14]     There are disputes  between  the parties regarding whether the respondent should have decided an application one way or the other, or whether it was right to defer doing so and request the plaintiffs to modify the application in some way. Disputes such as this are not amenable to judgment by way of summary judgment. In short, whilst the plaintiffs contend that the respondent has failed to exercise the statutory powers available to it, the respondent contends either that it has done so, or that it had good reason not to exercise them in the circumstances.   Resolving this type of factual dispute is not appropriate in the context of a summary judgment application; the essence of which is that the Court must be satisfied that there is no defence to the claim: see Towers v R & W Hellaby Ltd (1987) 3 NZCLC 100,064 (HC) where Thorp J said that the critical question will generally be whether the Court is satisfied that the plaintiff’s case is unanswerable and the Court will not reach that conclusion if it can see an arguable defence.  Here, the plaintiffs contend that there is no good reason for the respondent to not simply give a positive or negative answer to their applications, whereas the respondent contends that at times what it has been faced with from the plaintiffs often does not satisy the procedural requirements for such applications.   It is not for me to determine now where responsibility lies for the present state of affairs.  There is enough to satisfy me that I do not have a clear factual foundation on which I could find that the plaintiffs’ case was unanswerable.  This is a further reason for dismissing the plaintiffs’ application for summary judgment on the breach of statutory duty claim.  It is also a reason for refusing summary judgment for the claims for other remedies that the plaintiffs seek, such as mandamus.  It follows that the application in its entirety must fail.

Respondent’s application to strike out the plaintiffs’ statement of claim

[15]     During the course of the argument on the plaintiffs’ application for summary judgment, it became clear that there was such an overlap with that argument and the arguments on the strike-out application that it too could be heard.  The arguments focused on the claim for a breach of statutory duty.  That is the key claim for the plaintiffs, as they are seeking damages of approximately $1M.

[16]     The tests for exercising the power to strike out a statement of claim are well established:  see  A-G  v  Prince  [1988]  1  NZLR  262  (CA),  endorsed  by  the Supreme Court in Couch v A-G [2008] NZSC 45, [2008] 3 NZLR 725 at [33].  In short, the Court must be certain that the claim cannot succeed.  The views I have already expressed at [9]–[13] herein are to the effect that I consider the plaintiffs have no tenable cause of action for damages for breach of statutory duty under the Resource Management Act.  Thus, there is a foundation for striking out that part of the plaintiffs’ claim.

[17]     Although  r  15.1(1)  of  the  High  Court  Rules  expressly  contemplates  the striking out of part of a proceeding, this is rarely done and Courts have warned against doing so: see Whitman v Airways Corporation of NZ Ltd (1994) 8 PRNZ 155 (HC).   In this case, I have not heard full argument from the parties regarding the claims for remedies, other than damages for breach of statutory duty.   Procedural fairness requires that the parties have an opportunity to be heard on the aspects of this case that were not addressed at the hearing.  For that reason, I will decline to strike out the claim insofar as it seeks remedies other than damages.

[18]     However, given the position I have reached on the plaintiffs’ argument to enforce a damages action for breach of statutory duty, I consider that it would be appropriate in this case to use the power available to me under r 15.1(1) to strike out those parts of the plaintiffs’ claim that relate to the damages action for breach of statutory duties.

Result

[19]	The plaintiffs’ application for summary judgment is dismissed

[20]	Those parts of the plaintiffs’ statement of claim that relate to their claim for

damages for actionable breach of statutory duty are struck out. [21]	Leave is reserved to file memoranda on costs.
[22]	The Registry is to arrange a telephone conference, which is to take place within 10 days of delivery of this judgment and at a time convenient to the parties.

Duffy J

Solicitors:	Heaney   and   Co   P   O   Box   105391   Auckland   1143   (DX   CP   18503, Auckland City) for the Defendant

Copy To:	P W Mawhinney (Self-represented) C/- Swanson Superette P O Box 95157
Swanson Auckland 0653 for the First, Second and Third Plaintiffs