Robert Lee. Photo / Ben Fraser
Rotorua Lakes Council says it will pursue costs over what it describes as a "misconceived" judicial review case launched and now withdrawn byelection candidate Robert Lee.
The action has so far cost Rotorua Lakes Council almost $150,000.
Lee said he was disappointed it was necessary to withdraw his court action and he will appeal to "the highest court in the land – the court of public opinion".
Rotorua mayor Steve Chadwick said the case was, in her view, a "political stunt" - a claim Lee denies - which had caused "hurt".
Lee's original claim questioned the council's November 19 decisions to agree on an ideal representation model and pursue a local bill to change representation rules for the district.
The bill sought to have a model with the same number of seats in the Māori and general wards for the October local election and beyond.
The council paused the bill in April after Labour's support for it crumbled following an Attorney-General ruling that it would discriminate against general roll voters.
Court documents seen by Local Democracy Reporting show lawyers for the Attorney-General said on June 10 there were "serious questions" about the courts' jurisdiction to entertain Lee's claim, due to the Parliamentary Privileges Act and relevant case law.
The Attorney-General's memorandum said there was "constitutional and public importance of the principle of non-interference in parliamentary proceedings".
In another court document dated July 21, Judge Paul Davison said the Attorney-General's lawyer had advised the issues raised would affect all causes of action for the case and, if resolved in favour of the Attorney-General, would "dispose of the application for judicial review".
Judge Davison decided those issues would need to be resolved before a substantive hearing for the judicial review, which had been scheduled for August 4, according to the document.
"I am satisfied that until the issues related to Parliamentary privilege are heard and determined it would be inefficient for the court to embark upon hearing the judicial review."
Judge Davison also stated the parties may wish to review positions on security for costs, which at that time were $15,000. The Attorney-General's involvement was on a "costs neutral basis", where it would neither seek nor be liable for costs.
The August 4 date was then limited to issues raised by the Attorney-General, with the judicial review deferred pending a decision on the Parliamentary privilege issues.
The council was given until July 29 to put its documents together for the August 4 hearing, and Lee until August 2 to submit his own in response to the council and Attorney General.
On July 26 Lee responded in a court memo saying the timetable was "unreasonable and unworkable" and he believed the court had to "take responsibility for sitting on its hands" from June 10 when the Attorney General indicated its intention to intervene in the case.
He said the court should have given notice of any "intention to vacate" the substantive hearing.
"I am a self-represented litigant, not a constitutional lawyer.
"I acknowledge this is not an area in which I have any expertise. It is therefore not reasonable to expect me to respond to novel and 'complex' constitutional arguments within just two working days."
He said the court should have appointed an amicus curiae – friend of the court – to represent his interests.
An amicus curiae can provide information and submissions about a particular area of law or advance legal arguments on behalf of an unrepresented party.
He said he believed the "without-notice intervention" was "fatally prejudicial" to his case and therefore he had "little option but to withdraw" it.
Lee's memo stated the council's lawyer filed an application for security for costs for $28,500.
He argued the new timetable meant his case "could be moot" by the time the substantive hearing rolled around as by then the council's local bill could have been withdrawn by Parliament and the local election over.
"The prejudice to my case is now beyond repair and not attributable to any fault of mine."
The memo said costs should "rest where they lie".
Last week, Chadwick told Local Democracy Reporting she viewed the judicial review as "a political stunt".
It was, in her opinion, "orchestrated by disaffected individuals who now need to be held to account and pay the price for the hurt that they have caused to myself and other councillors".
She said the council was forced to respond to the action and it was, in her view, a "sad waste of staff and elected members' time".
Chadwick's comments followed a council statement last Thursday that said it would pursue costs following Lee's withdrawal of the judicial review claim.
The council confirmed, in a clarifying statement, it had incurred costs of about $148,350 as of that day.
A council spokeswoman confirmed it would be the court's decision to determine whether Lee should pay costs and if so, how much.
In the statement, council chief executive Geoff Williams said the council was always concerned the claim was, in his opinion, "misconceived and would fail" but the council would nevertheless incur significant costs defending it.
"That is why we had sought that Mr Lee pay a sum of costs into court as security for at least some of the costs incurred."
He said the council was always careful in considering legal action but was forced into a "serious legal situation" by Lee's court action and had to respond.
"We have a responsibility to the Rotorua residents and ratepayers to pursue recovery of at least some part of the costs that council has been forced to incur through Mr Lee's now withdrawn judicial review.
"It is always disappointing to incur costs out of our control. However, it remains important that [the] council responds to any legal challenge appropriately in terms of both law and prudency.
"It was always our view that Mr Lee's case ... contained inaccurate allegations."
He said the council had instructed its lawyer to reject Lee's request for costs to remain where they lie, and now awaited the judge's decision, which was not expected before September.
The council statement claimed Lee had accused the council of predetermination in its decision making during its representation review earlier this year and "within that accused some elected members of holding a bias and/or conflicts of interest towards Māori and iwi stakeholders and beneficiaries in Rotorua".
"After months of preparation, including the filing of an interim injunction by Mr Lee which was also earlier withdrawn, Mr Lee withdrew his appeal citing the process had proven too difficult."
In response, Lee told Local Democracy Reporting, in his opinion, the council had "no genuine concern for costs incurred to Rotorua's ratepayers" in relation to the proceedings.
He viewed the council's costs as "exorbitant".
He said in his view the council's statement was "misleading" as it omitted he withdrew after the court "cancelled" the substantive hearing.
Court documents show the substantive hearing was deferred to allow the Parliamentary privilege issues to be addressed.
"It is also misleading to claim that I cited 'the process had proven too difficult'. That is a complete fabrication. I was ready for trial and very keen for it to proceed. I brought these proceedings in the public interest to ensure that Rotorua would continue to have free and democratic elections. That has been achieved for 2022 at least."
In response to Chadwick, Lee said he was disappointed it "became necessary to withdraw the judicial review" and believed the evidence against the council was "overwhelming and indefensible".
He believed the council had "predetermined" its decisions about the local bill and representation review in "secret elected members workshops" and this would have been "sufficient for the court to overturn the council's [November 19] decision".
"Justice was delayed and therefore denied. This was not a political stunt. This was one person standing up to [the] council."
He wanted the council to withdraw the paused bill from Parliament and reconsider its partnership agreement with Te Tatau O Te Arawa.
He said he would appeal to "the court of public opinion" when he ran for a council seat in the October local election.
Lee was asked whether he believed he was in a position to pay any costs ordered, and how much he had fundraised to support the court action. He said he expected he would "seek a refund from the court for their fees as well as an order that any costs incurred by the parties rest where they lie".
"I have received donations from people who have supported these proceedings, but the question of how much I have received is a private matter between me and them."
He said putting himself "into financial jeopardy" reflected how important his cause was to him.
The Ministry of Justice was approached for comment.
• Local Democracy Reporting is public interest journalism funded by NZ On Air.
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