20200219 Supreme Court refusal

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 85/2019 [2020] NZSC 8

First Respondent

NORTHLAND REGIONAL COUNCIL Second Respondent

Hearing: 5 February 2020

Court: O’Regan and Ellen France JJ

Counsel: R E Harrison QC for Applicants

plus usual disbursements. ____________________________________________________________________

REASONS

[1] The applicants, Richard and Heather Rogan, apply for an extension of time to

make an application for leave to appeal to this Court against a decision of the Court of

Appeal dismissing their appeal to that Court.1 They also seek leave to appeal. The

1 Rogan v Kaipara District Council [2018] NZCA 478, [2019] NZAR 425 (Kós P, Asher and

Gilbert JJ) [CA judgment].

ROGAN v KAIPARA DISTRICT COUNCIL [2020] NZSC 8 [19 February 2020]

Court convened a hearing at which argument in relation to both the application for an

[2] The underlying proceeding commenced as a proceeding for recovery of rates

said to be owing by the applicants that was commenced by the first respondent, the

Kaipara District Council (the Council). The applicants were involved in a rates revolt,

the history to which is set out in the decision of the Court of Appeal in Mangawhai

Ratepayers and Residents Assoc Inc v Kaipara District Council.2 Other ratepayers

also refused to pay their rates, although the number of these who continue to refuse to

pay is now a matter of dispute.

[3] In the District Court, the applicants raised various defences to the claim for the

payment of rates and penalties advanced by the Council. In particular, the applicants

argued that the Council did not comply with the requirements of ss 45 and 46 of the

Local Government (Rating) Act 2002 (the Act), which set out the requirements for

rates assessments and rates invoices.

[4] The District Court Judge concluded that defences based on non-compliance

with ss 45 and 46 of the Act were precluded by s 60, which provides that a ratepayer

must not refuse to pay rates on the grounds that the rates are invalid unless that person

brings proceedings in the High Court challenging the validity of the rates on the

ground that the local authority is not empowered to set or assess rates on the relevant

rating unit.3 The applicants’ appeal to the High Court against that finding was

dismissed.4 The applicants obtained leave to appeal to the Court of Appeal.5

[5] The Court of Appeal issued its judgment on 6 November 2018. It determined

that the conclusion reached by the District Court and High Court in relation to s 60

was incorrect, and that this section did not preclude the advancing of defences based

on ss 45 and 46.6 However, the Court then went on to consider the defences based on

2 Mangawhai Ratepayers and Residents Assoc Inc v Kaipara District Council [2015] NZCA 612,

ss 45 and 46 and found that they failed.7 The Court therefore concluded that, despite

the lower Courts being incorrect in their interpretation of s 60, they reached the correct

conclusion that the applicants were not entitled to refuse the payment of rates because

[6] The applicants wish to argue if leave to appeal is given that the Court of Appeal

should not have addressed the ss 45 and 46 issues, but rather should have remitted the

case to the District Court for reconsideration. They argue that the sole issue before

the Court of Appeal was the interpretation of s 60 and that the issues relating to ss 45

and 46 were “unheralded” and “out of scope”. They argue a breach of natural justice

occurred. They also wish to argue that the Court of Appeal was wrong in its

interpretation of ss 45 and 46. And they wish to advance another defence that they say

they would have advanced if they had known that the Court of Appeal was going to

go beyond the issue of interpretation of s 60, arising from the Council’s policy of

applying any payment received from a ratepayer to the oldest debt.

[7] The applicants applied to the Court of Appeal to recall its judgment, advancing

the arguments just mentioned. The Court of Appeal refused to recall the judgment.8

The Court said that the issue as to what orders should be made, including whether the

District Court judgment ordering payment of the rates should stand was a question that

inevitably arose on an appeal against the High Court judgment upholding the District

Court judgment. The Court said it had received full argument on the issue, something

[8] After the Court of Appeal refused to recall the judgment, the applicants did not,

as may have been expected, seek leave to appeal to this Court. Rather, their solicitor

filed an application to “re-open” the Court of Appeal’s judgment on the grounds that

there had been a breach of natural justice. Unsurprisingly the Council objected to this

on the basis that the recall judgment had addressed this issue and that the Court was

7 At [34]. 8 Rogan v Kaipara District Council [2018] NZCA 553. 9 At [13].

[9] The applicants then proceeded without advice from their legal advisors,

initially emailing an application to the Court of Appeal to “use its inherent jurisdiction

to re-open the appeal judgment and set the judgment aside as a nullity”.

[10] The applicants then engaged in correspondence with the Court of Appeal with

a view to advancing the application to re-open the judgment, which was,

unsurprisingly, fruitless. A further application for re-opening of the judgment was

made in early March, with the same unsuccessful outcome. The applicants then wrote

a complaint to the Chief Justice, which was also an inappropriate step for them to take.

[11] Mr Rogan says in his affidavit in support of the application for an extension of

time that the applicants then obtained advice with a view to making an application for

leave to appeal to this Court and sought a settlement with the Council, but their offer

was rejected. Arrangements were then made for them to listen to the recording of the

Court of Appeal hearing, an application for a transcript of that hearing having been

rejected by the President of that Court. The applicants then considered the possibility

of bringing their case to this Court. The applicants’ solicitor was on medical leave

from work for about two weeks at the end of July and in early August and, after his

return to work a senior counsel was approached to give advice on draft documents.

Ultimately the application for leave to this Court was filed on 2 September 2019.

[12] The application for leave to appeal (and for an extension of time) was filed

almost nine months after the expiry of the period for doing so.10

[13] The Council opposes any extension of time. It argues that the delay was not

due to any inadvertence or “slip up” but rather a choice to employ other tactics to

challenge the Court of Appeal decision. They argue that an extension of time would

cause prejudice to the respondents because of the further delay in resolving the rates

collection proceedings, further extending what has been a long running saga. The

Council argues that this would be unfair to the Council’s other ratepayers, the vast

majority of whom have paid their rates.

(b) Reasons for the delay: In Almond v Read, this Court said it would be

particularly relevant to know whether the delay resulted from the

deliberate decision not to proceed followed by a change in mind, from

indecision, or from error or inadvertence. It noted that if a change of

mind or indecision is the reason for the delay then there would be less

11 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]. 12 Rogan v Kaipara District Council CA107/2018, 19 February 2019 at [4]. 13 Almond v Read, above n 11, at [38(a)].

justification for an extension than where the delay results from an error

or inadvertence.14 In this case, the applicants made a deliberate decision

to pursue the various fruitless steps described earlier to challenge the

Court of Appeal judgment even after the Court had specifically pointed

out to them that an application for leave to appeal to this Court was the

appeal issues in the event that it overturns one aspect of a lower court

14 At [38(b)]. 15 At [38(c)]. 16 At [38(e)].

decision. It is clear the Court of Appeal saw the arguments raised by

the applicants in that Court as technical and did not regard them as

having a lot of merit. It is not appropriate for us to make a judgment

on that in the absence of full argument, but we do not see the public

interest aspect of the case as having the significance that the applicants

argued it did. The argument they wish to raise in relation to the Act

[16] This brings us to the merits of the proposed application. With all the material

available to us, and acknowledging there has not been full argument, we conclude that

lack of merit would not be a proper basis for refusing an extension of time. The

application is not hopeless, but nor do we consider that it is so compelling that we feel

obliged to allow an extension of time despite the extensive delay.

[17] Bringing all the factors together, we conclude that the applicants have not made

out a case for an extension of time to bring their application for leave to this Court.

The misguided steps they took in the Court of Appeal well after the proceeding in that

Court had come to an end are puzzling and were taken in the face of clear advice from

that Court that the appropriate step to take was to apply for leave to appeal to this

Court. We accept that for periods the applicants were not receiving legal advice, but

that was their choice and the consequences of it should not be visited on the Council.

We are not convinced that the arguments they wish to pursue are more than technical

arguments. In circumstances where they are seeking an indulgence to seek leave for

what would be a third appeal, we do not consider their case is strong enough to justify

such an indulgence being given.

[18] We therefore dismiss the application for an extension of time to apply for leave

to appeal.

[19] The applicants must pay the respondents costs of $4,500 plus usual

disbursements.

Solicitors: Henderson Reeves Lawyers, Whangarei for Applicants Brookfields Lawyers, Auckland for Respondents