Hotel Millenia v Attorney General [2015] WSSC 49 (8 January 2015)

SUPREME COURT OF SAMOA
Hotel Millenia v Attorney General and PUMA [2015] WSSC 49

Case name:	Hotel Millenia v Attorney General and PUMA
Citation:	[2015] WSSC 49
Decision date:	8 January 2015
Parties:	PAT AH HIM LTD trading as HOTEL MILLENIA a duly incorporated company having its registered office at Saleufi. Plaintiff AND ATTORNEY GENERAL sued on behalf of the Ministry of Natural Resources and Environment. First Defendant AND PLANNING URBAN MANAGEMENT AGENCY (PUMA) established by the Public and Urban Management Act 2004. Second Defendant AND CHAIRPERSON AND MEMBERS OF THE PUMA BOARD established by the Public and Urban Management Act 2004. Third Defendant
Hearing date(s):	18 February 2014
File number(s):	CP82/13
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- (a)The plaintiff’s cause of action in negligence is struck out. (b) The plaintiff’s cause of action for breach of statutory duty is also struck out. (c) Leave of 14 days is granted to the plaintiff to re-plead its case for the alleged procedural improprieties on the basis of Baigent’s case if it wants to do so and to file and serve a further amended statement of claim in respect of the alleged procedural improprieties. Failing to do so in 14 days, the plaintiff’s cause of action for procedural impropriety is automatically struck out. (d) Leave is reserved to the defendants to move again to strike out should a further amended statement of claim be filed. - Costs reserved.
Representation:	M V Peteru for plaintiff M T Lui and S Ainuu for first, second, and third defendants
Catchwords:	judicial review in a negligence action – frivolous and vexatious – causes of action in negligence – breach of statutory duty – abuse of process –procedural impropriety –-
Words and phrases:	Strike out motion for judicial review- ‘separation of powers’ – ‘looking over the shoulders’ - ‘discretionary’, ‘policy,’ ‘planning’ ‘operational’- ultra vires acts
Legislation cited:	Planning and Urban Management Act 2004 s.47
Cases cited:	Anns v Merton London Borough [1977] UKHL 4; [1978] AC 728 Donoghue v Stevenson [1932] AC 465, Hedley Byrne & Co Ltd v Heller Partners Ltd [1963] UKHL 4; [1964] AC 465, Dorset Yacht Co Ltd v Home Office [1970] AC 104 Murphy v Brentwood District Council [1991] 1 AC 414 Rowling v Takaro Properties Ltd [1987] UKPC 2; [1988] AC 473 The Queen v Saskatchewan Wheat Pool [1983] 1 SCR 205. Town Investments Ltd v Department of the Environment [1977] UKHL 2; [1978] AC 359 Garrett v Attorney General [1997] 2 NZLR 332 Simpson v Attorney General [1994] 3 NZLR 667 Punitia v Tutuila [2014] WSSC 1
Texts/Law of torts	Liability of the Crown (2000) 3rd ed by PW Hogg and PJ Monahan The Law of Torts in New Zealand (2009) 5th ed by S Todd et al at 23.1.01 – 23.1.02, pp 1072 – 1076. Liability of the Crown (2000) 3rd ed by P W Hogg and PJ Monahan at 7.1 pp.161 – 162 Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph Review of Administrative Action (1995) 5th ed
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 82/13

BETWEEN

PAT AH HIM LTD trading as HOTEL MILLENIA a duly incorporated company having its registered office at Saleufi.
Plaintiff

A N D

ATTORNEY GENERAL sued on behalf of the Ministry of Natural Resources and Environment.
First Defendant

A N D

PLANNING URBAN MANAGEMENT AGENCY (PUMA) established by the Public and Urban Management Act 2004.
Second Defendant

A N D

CHAIRPERSON AND MEMBERS OF THE PUMA BOARD established by the Public and Urban Management Act 2004.
Third Defendant

Counsel:
M V Peteru for plaintiff
M T Lui and S Ainuu for first, second, and third defendants

Hearing: 18 February 2014
Judgment: 8 January 2015

JUDGMENT OF SAPOLU CJ

Introduction

1. These proceedings are concerned with a motion by the first, second, and third defendants to strike out the plaintiff’s amended statement of claim which accompanies its motion for judicial review seeking declaratory relief on the grounds that: (a) it discloses no reasonable cause of action, (b) it is frivolous and vexatious, and (c) it is an abuse of process. The causes of action pleaded in the amended statement of claim are: (a) negligence against the first, second, and third defendants, (b) procedural impropriety against the first, second, and third defendants, and (c) breach of statutory duty against the Minister of the first, second, and third defendants who is also the chairperson of the third defendant. This is somewhat confusing because the Minister is not cited as a party in the amended statement of claim. Damages are sought in respect of all causes of action and a declaratory order is also sought in respect of the cause of action for procedural impropriety.
2. The plaintiff is a duly incorporated private company; the first defendant is the Attorney General sued on behalf of the Ministry of Natural Resources and Environment (MNRE); the second defendant, the Planning and Urban Management Agency (PUMA), is a statutory body established under s.3 of the Planning and Urban Management Agency Act 2004 as a division of the MNRE; and the third defendant, the Planning and Urban Management Board (the Board), is a statutory body established under s.5 of the Act. In other words, the plaintiff is a private company, the first defendant is the Attorney General sued on behalf of a ministry of Government, the second defendant is a division of that ministry of Government, and the third defendant is a statutory body established for the purposes of the Act.
3. In civil proceedings by an individual seeking damages in private law against the Government or a ministry of Government or a governmental statutory body, it is important to bear in mind that different considerations apply to the relationship between the Government and an individual from the considerations that apply to the relationship between one individual and another individual. This is because of the way the English common law has evolved and developed over the centuries giving the Crown (Government) a special position under the law in relation to its subjects. A most useful and helpful starting point when bringing civil proceedings in private law against the Government or defending such proceedings is the text Liability of the Crown (2000) 3rd ed by PW Hogg and PJ Monahan. Previous editions of that work also provide a substantial body of knowledge on the law regarding the liability of the Crown (Government) in its relationship with an individual. There is also a useful discussion regarding the liability of the Crown (Government) in tort in The Law of Torts in New Zealand (2009) 5th ed by S Todd et al at 23.1.01 – 23.1.02, pp 1072 – 1076.

Background

4. The background to these proceedings is to be gathered from the amended statement of claim, the written submissions of counsel, and the affidavit of Tuala Oli Ah Him, the manager of the Hotel Millenia, filed in support of the plaintiff’s motion for judicial review seeking declarations against all three defendants including others not cited as parties in the amended statement of claim. There is no declaration sought against the first or the third defendant. So I do not see why those defendants are cited as parties in the motion for review.
5. The plaintiff operates a hotel known as Hotel Millenia on land at Sogi which adjoins the land owned by the religious group known as the Worldwide Worship Centre Ministries (Worship Centre). The Worship Centre wants to build a new church on its land. Apparently, the plaintiff is very concerned about the building of a church close to its hotel as the noise from the services conducted in such a church may disturb the enjoyment and comfort of its guests.
6. The amended statement of claim suggests that the Worship Centre had requested the Minister of the MNRE for approval to build a church on its land at Sogi. The Minister then referred the matter to PUMA which advised on 18 January 2011 that the Worship Centre needs to provide an application in the prescribed form together with a report by a qualified acoustic engineer on the likely impact of the noise emitted from the proposed church and other related matters. The Worship Centre submitted a report to the PUMA on 18 April 2011. By letter of 12 May 2011, the PUMA advised the Worship Centre of certain outstanding matters including the need for a full environmental impact report and noise impact report as earlier requested. By letter of 7 September 2011, the Worship Centre wrote to the PUMA requesting the Government to fund the required report by a qualified acoustic engineer on noise impact. This letter from the Worship Centre was copied to the Minister of the MNRE. Following this letter, the Minister called a meeting which was attended by representatives of the MNRE, the PUMA, and the Worship Centre.
7. It is further alleged by the plaintiff that as a result of that meeting the Minister issued an instruction to the PUMA to issue a development consent to the Worship Centre on the assurance given by the Worship Centre that the church to be built “will be soundproof (acoustic) FLT”. The advice from the chief executive officer of the MNRE was that “the approval has to come from the Board” (the third defendant) which will meet the following week. It is then further alleged by the plaintiff that at the said meeting of the Board which was held on 28 September 2011 and chaired by the Minister, the Board issued a development consent to the Worship Centre. The plaintiff’s complaint is that the Board’s decision was pre-determined because of the instruction that the Minister had previously given to the PUMA. I must say that what is alleged here for the plaintiff seems to be factually incorrect. It is clear from the submissions of counsel for the defendants that it was the PUMA, and not the Minister or the Board, that granted a conditional development consent to the Worship Centre. This must be right because neither the Minister nor the Board has any power under the Planning and Urban Management Act 2004 to grant a development consent; it is the PUMA which is given such power under s.47 of the Act.
8. It appears from the affidavit of Tuala Oli Ah Him that following the decision of the Minister, he lodged an appeal with the Planning Tribunal. It is not clear from Mr Ah Him’s affidavit which decision did he appeal to the Planning Tribunal, whether it was the decision of the Minister or of the Board. As earlier mentioned, it is clear from the submissions of counsel for the defendants that the appeal was from the decision of PUMA. This must be correct because in terms of ss 53 and 54 of the Act, an appeal may lie from a decision of the PUMA (and not a decision of the Minister or the Board) to the Planning Tribunal. The appeal was unsuccessful. An appeal may also lie under s.98 to the Planning Tribunal against a decision of the PUMA refusing to issue a certificate of compliance but that is not an issue in these proceedings.
9. Following the plaintiff’s unsuccessful appeal to the Planning Tribunal, it brought these civil proceedings against the defendants alleging negligence, procedural impropriety, and breach of statutory duty.
10. I turn now to the relevant law and the plaintiff’s causes of action. I will refer first to the relevant law and the causes of action in negligence and for breach of statutory duty and then to the relevant law and the cause of action for procedural impropriety.

The relevant law and the causes of action in negligence and for breach of statutory duty

(a) Negligence

11. As these proceedings involve a Government ministry, statutory bodies of a public nature, and allegations of negligence, I will start with the well-known decision of the House of Lords in Anns v Merton London Borough [1977] UKHL 4; [1978] AC 728 where Lord Wilberforce who delivered the leading judgment said at p.751:
    • “Through the trilogy of cases in this House – Donoghue v Stevenson [1932] AC 465, Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465, and Dorset Yacht Co Ltd v Home Office [1970] AC 104, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighborhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or class of person to whom it is owed or the damages to which a breach of it may give rise: see Dorset Yacht case [1970] UKHL 2; [1970] AC 1004, per Lord Reid at p.1027”.
12. At pp.753 – 754, Lord Wilberforce went on to say:
    • “What then is the extent of the local authority’s duty towards these persons? Although, as I have suggested, a situation of ‘proximity’ existed between the council and owners and occupiers of the houses, I do not think a description of the council’s duty can be based upon the ‘neighbourhood’ principle alone or upon merely any such factual relationship as ‘control’ as suggested by the Court of Appeal. So to base it would be to neglect an essential factor which is that the local authority is a public body discharging functions under statute: its powers and duties are definable in terms of public not private law. The problem which this type of action creates, is to define the circumstances in which the law should impose, over and above, or perhaps alongside, these public law powers and duties, a duty in private law towards individuals such that they may sue for damages in civil Courts. It is in this context that the distinction sought to be drawn between duties and mere powers has to be examined”.
13. His Lordship then said at p.754:
    • “Most, indeed probably all, statutes relating to public authorities or public bodies, contain in them a large area of policy. The Courts call this ‘discretion’ meaning that the decision is one for the authority to make, and not for the Courts. Many statutes also prescribe or at least presuppose the execution of policy decision: a convenient description of this is to say that in addition to the area of policy or discretion, there is an operational area. Although this distinction between the policy aera and the operational area is convenient, and illuminating, it is probably a distinction of degree; many ‘operational’ powers or duties have in them some element of ‘discretion’. It can safely be said that the more ‘operational’ a power or duty may be, the easier it is to superimpose upon it a common law duty of care”.
14. In the later case of Murphy v Brentwood District Council [1991] 1 AC 414 the House of Lords expressly overruled Anns v Merton London Borough [1977] UKHL 4; [1978] AC 728 and subsequent English cases have refused to follow the formulation of principle by Lord Wilberforce in Anns mainly on the ground that it exposed public authorities to too much liability. However, the New Zealand and Canadian Courts, as pointed out in Liability of the Crown (2000) 3rd ed by P W Hogg and PJ Monahan at 7.1 pp.161 – 162, have continued to follow Lord Wilberforce’s formulations in Anns.
15. In Liability of the Crown (2000) 3rd ed at 7.2(a), pp. 764 – 165, the learned authors say:
    • “The distinction between the planning and operational levels of government has emigrated from the United States to the Commonwealth. In the Commonwealth cases, however, the words ‘discretionary’ or ‘policy’ are more commonly used to describe what the Americans call ‘planning’ level of government. In our view, the word planning is more suitable... Whatever language is used, the idea is ‘to exclude altogether cases in which the decision under attack is of such a kind that a question whether it has been made negligently is unsuitable for judicial resolution’: Rowling v Takaro Properties Ltd [1987] UKPC 2; [1988] AC 473, 50, [1987] 2 NZLR 700 (PC). Obviously, planning decisions differ only in degree from operational decisions but operational decisions are those that are more specific, and therefore susceptible to judicial evaluation by reference to the negligence standard of reasonable care.
    • “The distinction between planning and operational decisions applies not only to the Crown, but to all persons or bodies exercising governmental powers. In our view, the distinction appropriately reflects the reality that governmental decisions involving broad discretion, choices as to allocation of resources, and judgments of policy are not suitable for review in a negligence action where the Court must determine the ‘right’ decision in order to fix damages. That is why government does not owe any duty of care to private individuals or firms in the exercise of planning functions. On the other hand, governmental decisions involving narrow discretion, perhaps governed by standards, fixed resources and the execution of settled policy are suitable for judicial review in a negligence action. This is the operational level, where government may owe duties of care, and may be required to compensate for foreseeable harm to private individuals. Those are the ideas that underlie the distinction between the planning and operational levels of government. To be sure, they are vague, but so are many of the other concepts both of the law of torts and administrative law, two bodies of law that come together when government is sued for negligence”.
16. The Canadian justification as to why policy decisions are actionable in negligence and operational decisions are not so actionable is explained in Liability of the Crown (2000) 3rd ed where it is stated at 7.1, pp.162-163:
    • “Canadian Courts have not attempted to define in a comprehensive way the nature of the policy considerations that might make it appropriate to limit a prima facie duty of care. However, the underlying policy concern is that it may not be appropriate to regulate certain kinds of relationships or compensate certain kinds of harm though the law of negligence, notwithstanding a finding of proximity between the parties”.
    • “The decided cases have identified two significant policy concerns that justify limiting the scope of a prima facie duty of care. The first is the concern of Courts not to disturb policy-oriented decisions made by public officials, on the basis that such officials are ultimately accountable to the electorate. This has led to the development of the distinction between policy or planning decisions, which are not reviewable under the law of negligence, and operational decisions, which are. A second policy concern reflected in the cases arises from the far-reaching impact of many governmental decisions. In such circumstances a finding of liability may open the floodgates to a torrent of litigation, which would make governmental policies intolerable costly”.
17. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author says at 7.5.2 (1), pp.215 – 216:
    • “[Where] negligence is alleged the fact that a public authority is defendant may be relevant to the question of whether a duty of care is owed. The Courts have adopted the American law notion of ‘discretionary function immunity’ for excluding a duty of care when public authorities exercise policy discretions. Would – be plaintiffs may not second guess policy decisions through private negligence actions...
    • “The discretionary function immunity is a ‘separation of powers’ exception to liability through private actions. When Parliament authorises a public body to exercise policy discretions, it does not intend judicial intrusion in private law actions. Other policy arguments, too, militate against extending the judicial sweep. The ‘looking over the shoulder’ factor weighs against awarding damages for ultra vires acts. Ministers and officials should be able to make bona fide decisions and discharge their duties expeditiously, without constant fear of being sued for alleged misuse of power”.
18. In The Law of Torts in New Zealand (2009) 5th ed by S Todd et al, the learned authors state at 6.6.02 (1), p.306:
    • “Some leading decisions hold that no duty of care can be owed in respect of those decisions made by a public body in the exercise of a statutory power which involve matters of ‘policy’ or ‘discretion’. A duty can be imposed only in respect of ‘operational’ matters, concerning the manner in which a discretionary decision has been implemented in practice. The justification arises out of the proper relationship between judicial and executive power and the need for their exercise to operate coherently in relation to each other. Negligence actions should not be used to impugn a discretionary decision, for the discretion is that of the public body, not the Court. For a Court to second guess the discretionary decision of a public body and to substitute its own discretion would be to usurp the legitimate functions of that body. For example, public authorities frequently may need to strike a balance between the claims of efficiency and thrift. Whether they get the balance right is a matter for political rather judicial judgment. Again, a Court is in no position to make informed decisions on such matters, nor is the adversary procedure a very suitable mechanism for eliciting an appropriate answer. However, once such a decision has actually been made the Court thereafter can monitor whether it has been put into effect with all due care. The Court does not presume to question the policy but simply makes a finding of negligence or no negligence in respect of its implementation”.
19. The learned authors of the The Law of Torts in New Zealand (2009) 3rd ed then refer to the distinction between ‘policy’ or ‘discretionary’ decisions and ‘operational’ matters made by Lord Wilberforce in Anns v Merton London Borough [1977] UKHL 4; [1978] AC 728, 754 and go on to say:
    • “Discussions in the Supreme Court of Canada have been supportive of this distinction. Pure policy decisions, it is said, are generally made by persons of a high level of authority, but also may properly be made by persons of a lower level of authority. The characterisation of a decision rests on the nature of the decision and not on the identity of the actors. As a general rule true policy decisions involve social, political and economic factors. The public body attempts to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertakings and of their actual performance. The decisions will usually be dictated by financial, economic, social and political factors or constraints. The operational area mainly covers the performance or carrying out of policy. The operational decisions will usually be made on the basis of administrative directions, expert or professional opinion, technical standards or general standards of reasonableness”.
20. The learned authors then refer to some of the criticisms of the policy/operational distinction and go on to say that perhaps Lord Keith’s approach in Takaro Properties Ltd v Rowling [1987] 2 NZLR 700 asking whether or not the question is suitable for judicial resolution, that is to say, whether it is justiciable, gives a clearer focus to the inquiry. In this regard, the policy/operational distinction provides a guide in determining that question whether a matter is justiciable or not.

Discussion

21. As the action by the plaintiff in negligence should have been directed against the PUMA alone, I will discuss the position of the PUMA first. The PUMA is a public body with statutory duties and functions provided under the Planning and Urban Management Act 2004. It is established under s.3 of the Act as a division of the MNRE. As the MNRE is a ministry of Government and therefore a part of Government, it follows that the PUMA will also be part of Government.
22. Under the Act, any person who wants to carry out a “development,” which is defined in s.2 to include the erection of a building, must apply to the PUMA for a “development consent” (s.37) . In considering such an application, the PUMA may require an applicant to provide an environmental impact assessment (s.42). Section 46 then requires the PUMA when determining a development application to consider, inter alia, the potential environmental effects of any development proposal, the potential social and economic effects of such a proposal, the likely effects on cultural and natural heritage of such a proposal, the sustainability of the proposed development, suitability of the site for the proposed development in terms of natural hazards, adequacy of arrangements relating to waste water and sanitation, safety features of the development, adequacy of the structure of buildings to fulfill the purpose for which they are to be used, the public interest, and any other relevant matter. It is plain and clear that the PUMA has a very broad discretion to exercise and a wide range of factors to consider. Only then, may PUMA decide to grant a development consent, a development consent subject to conditions, or refuse a development consent (s. 47).
23. In terms of the distinction between ‘discretionary’, ‘policy,’ or ‘planning’ decisions and ‘operational’ decisions, a decision by the PUMA on a development application to grant a development consent, or to grant a conditional development, or to refuse a development consent is a decision which is made at the discretionary, policy, or planning level and not at the operational level. This is because of the very broad discretion that the PUMA has to exercise and the wide range of factors that it has to take into consideration. Such factors include environmental, social, economic, cultural, natural heritage, natural hazards, sanitation, and fire safety factors as well as any other relevant matter. The PUMA therefore does not owe a duty of care to any private individual or company in the exercise of its discretionary function. It follows that the decision by PUMA to grant only a conditional development consent to the Worship Centre, as described by counsel for the dependants, is not actionable in negligence.
24. In terms of the justiciability analysis, that is to say, whether the decision by the PUMA and the way it arrived at that decision is suitable for judicial resolution, I am of the clear view that the decision by the PUMA or how it arrived at that decision is not justiciable by way of an action in negligence.
25. It follows from the above that the plaintiff’s action in negligence against the PUMA is not maintainable in law. It is therefore struck out.
26. In relation to the MNRE, it is not clear why the Attorney General is being sued in negligence on behalf of the MNRE. The decision to grant a conditional development consent to the Worship Centre was made by the PUMA in terms of s.47 of the Planning and Urban Management Act 2004 but not by the MNRE even though in terms of s.3 of the Act the PUMA is a division of the MNRE. In any event, the MNRE is a ministry of Government and therefore part of the Government which is exempted under the Act from any liability.
27. Section 103 exempts the Government from liability by providing:
    • “The Government is not liable for any damage or loss resulting from any act, omission or default by the Minister or the Chief Executive Officer or the Board or the Agency [PUMA] or any member or any employee or agent of the Board or the Agency [PUMA], in their exercise of any function or power under this Act”
28. Even though in terms of the Act it was the PUMA, and not the MNRE, that made the decision which is complained of by the plaintiff, even if it is assumed that it was the MNRE which made that decision, s.103 exempts the Government from liability. That must also exempt the MNRE from liability because the MNRE is a ministry of Government and therefore part of the Government.
29. It follows from the above that the plaintiff’s cause of action in negligence against the Attorney General sued on behalf of the MNRE is not maintainable in law. It is therefore struck out.
30. It is also not clear why the Board is being sued in negligence when the decision to grant a conditional development consent to the Worship Centre was made by the PUMA and not by the Board. In terms of s.4 of the Act, the Board is one of the members of the PUMA. But that does not make the Board the same as the PUMA. The two are different statutory bodies. The PUMA is established under s.4 and the Board is established under s.5.
31. The decision to grant a conditional development consent to the Worship Center was made by the PUMA pursuant to s.47. The Board has no power to grant such a consent and did not make the decision to grant such a consent. Therefore, the Board should not be liable in negligence for a decision it did not make.
32. It follows from the above that the plaintiff’s cause of action in negligence against the Board is not maintainable in law. It is therefore also struck out.

(b) Breach of statutory duty

33. One of the three causes of action pleaded in the plaintiff’s amended statement of claim is that of breach of statutory duty against the Minister who is the Minister of the MNRE and the chairperson of the Board which is a member of the PUMA. The Minister is not cited as a party to the amended statement of claim so that the cause of action for breach of statutory against the Minister is untenable. However, I have decided to deal with this cause of action in case the omission of the Minister from the parties to the amended statement of claim was due to a mere inadvertence which can be remedied by amendment.
34. In footnote 40, at 6.2 (b), p.115, of Liability of the Crown (2000) 3rd ed, the learned authors state:
    • “If the statute imposes a duty, but is silent about liability for breach, in Canada (following the prevailing American theory) any civil liability will depend upon the common law of negligence: The Queen v Saskatchewan Wheat Pool [1983] 1 SCR 205. Outside Canada and the United States, Courts will occasionally infer a civil right of action from the statute itself, despite its silence. See Fleming, The Law of Torts (1998) 9th ed, ch 19:”.
35. At 6.2 (d), p.131 of Liability of the Crown (2000) 3rd ed, the learned authors go on to say:
    • “The third head of direct liability in the standard Crown proceedings statutes is for breach of statutory duty. A statute may confer a private right of action on a person injured through a breach of a duty imposed by the statute. Such a duty would bind the Crown only if the statute binds the Crown. In most jurisdictions, that means that the statute must make clear by express words or necessary implication that it does bind the Crown. In those cases where the statute does bind the Crown, and confers a private right of action of a duty imposed by the statute, it is self-evident that the Crown must be liable in damages to a plaintiff who has been injured by a failure to perform the duty. The Crown’s liability would be derived from the statute imposing the duty. No provision in the Crown proceedings legislation would be necessary to make the Crown liable. The point is important because, as has been explained, the federal Crown Liability and Proceedings Act, in imposing liability in tort on the Crown, omits any reference to breach of statutory duty. This omission would not immunise the federal Crown from liability for breach of statutory duty, because a plaintiff would not need to rely on the Crown liability and Proceedings Act as the source of the Crown’s liability”
36. Section 6 of our Government Proceedings Act 1974 which provides for the liability of Government in tort, provides, as far as relevant:

“(1) Subject to the provisions of this Act and any other Act, the Government shall be subject to all those liabilities in tort to which if it were a private person of full age and capacity, it would be subject –

(a) In respect of torts committed by its servant or agents”.

37. Section 6 is subject to the provisions of any other Act. Breach of statutory is, of course, a tort. The term “servant”, in relation to Government, is defined in s.2 of the Act to include a Minister of the Government. For the purposes of the tort of breach of statutory duty in this case, the real question is whether the Planning and Urban Management Act 2004 imposes a duty on the Minister and, if so, has there been a breach of such duty.
38. The difficulty here is to clearly identify the statutory duty which the plaintiff claims to have been breached by the Minister. As far as I can make out from paragraph 36 and paragraphs 38-49 of the amended statement of claim, there are two statutory duties alleged by the plaintiff to have been breached by the Minister. These are, firstly, that the Minister by unilaterally resolving to grant a development consent to the Worship Centre, acted outside any of his functions or powers, and was therefore in breach of his duty as defined by the Act, and, secondly, the Minister failed to implement his duties under s.9 (a) and (b) of the Act by granting a development consent to the Worship Centre without making sufficient inquiry in to all the relevant factors surrounding the application by the Worship Centre and the likelihood that the plaintiff’s hotel would be adversely affected by the granting of the development consent to the Worship Centre.
39. With respect, I must say that neither of the duties alleged by the plaintiff against the Minister is conferred by express words on the Minister by the Act. Neither may any of those duties be inferred from the Act. In respect of the first duty that is alleged, the power to grant a development consent, or conditional development consent, or to refuse a development consent is given to the PUMA under s.47 of the Act. So the Minister has no power or a duty to give a development consent. To say that the Minister was in breach of his duty under the Act by unilaterally resolving to grant a development consent to the Worship Centre when he has no power to do so, begs the question, but what is the duty that the Minister had breached. The answer is that there is no such duty under the Act as alleged and counsel for the plaintiff did not specify such a duty. Secondly, it appears from the submissions of counsel for the defendants that it was the PUMA, and not the Minister, that granted a conditional development to the Worship Center. That must be why the appeal by the plaintiff to the Planning Tribunal was directed against the decision of the PUMA and not a decision of the Minister. It is, therefore; factually incorrect to say that it was the Minister who unilaterally resolved to grant the development consent to the Worship Centre. Simply because the Minister may have instructed the PUMA to issue a development consent to the Worship Centre on the assurance of the Worship Centre that its proposed church will be soundproof (acoustic), as alleged by the plaintiff, does not mean that it was the Minister who made the decision to grant a conditional development consent to the Worship Centre. That decision was made by the PUMA which has been given the power under the Act to make such a decision.
40. In respect of the second duty which is alleged by the plaintiff under s.9 (a) and (b), it is clear that s.9 provides for the functions of the Board, not any function or duty of the Minister. So s.9 (a) and (b) does not impose any duty on the Minister as alleged by the plaintiff.
41. Section 103 also exempts the Government from liability. A Minister is part of the Government and is therefore exempted from liability. In Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell, the learned authors state at 4-005, pp. 205-206:
    • “What is of concern is the Crown in the sense of ‘the Government’ – a term appropriate to embrace both collectively and individually all the Ministers of the Crown and Parliamentary Secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments”.
42. In 4-007, p. 207, the learned authors of Judicial Review of Administrative Action (1995) 5th ed go on to say:
    • “The problem of determining which bodies fall within the embrace of the term ‘the Crown’ is still not easy to resolve. It was resolved by the House of Lords in Town Investments Ltd v Department of the Environment [1977] UKHL 2; [1978] AC 359. That case illustrates the fact that the various departments of Government are included within the term ‘the Crown’. This is because there is at the head of the department a Minister of the Crown, who bears responsibility for the activities of the department. As Lord Simon said, of the Minister of Works and Secretary of State for the Environment, in Town Investments, they are ‘aspects or members of the Crown, incorporated and charged for administrative convenience with holding and administering property required by other Crown Servants who are also aspects or members of ‘the Crown’. The same is true of the departments of which they are head”
43. In Liability of the Crown (2000) 3rd ed by P W Hogg and PJ Monahan, the learned authors state at 1.4 (a), p.11:
    • “[The] term ‘the Crown’ has persisted as the name for the executive branch (but not the legislative branch) of government. Executive power is actually exercised by the Prime Minister and other Ministers who direct the work of the civil servants in the various government departments. This structure is accurately and commonly described as ‘the government’ or ‘the administration’ or ‘the executive’, but lawyers usually use the term ‘the Crown’”.
44. Further on in Liability of the Crown (2000) 3rd ed, the learned authors state at 1.4 (b), p.11:
    • “The Crown includes the departments of government that are headed by a Minister. It is the control of the Minister that provides the link to the Crown”.
45. It follows from all of the above that the plaintiff’s cause of action against the Minister for alleged breach of statutory duty is not maintainable in law. It is therefore struck out.

Damages

46. As the plaintiff’s causes of action in negligence and for breach of statutory duty have been struck out, the claims for damages in respect of those causes of action would automatically lapse.

The relevant law and the cause of action for procedural impropriety

47. Traditionally, procedural impropriety, or breach of natural justice, has been regarded as a ground for judicial review in public law to invalidate an administrative decision and not as a basis for a cause of action in private law seeking damages. The exception is the tort of misfeasance in a public office which requires proof of malice. In Garrett v Attorney General [1997] 2 NZLR 332, 531, Blanchard J, when delivering the judgment of the New Zealand Court of Appeal, said:
    • “The common law has long set its face against any general principle that invalid administrative action by itself gives rise to a cause of action in damages by those who have suffered loss as a consequence of that action. There must be something more. And in the case of misfeasance in public office that something more, it seems to us, must be related to the individual who is bringing the action”.
48. It is therefore inappropriate for the plaintiff to bring the present cause of action in procedural impropriety or breach of natural justice as a common law action in private law for damages. Procedural impropriety is not a recognised tort at common law.
49. What the plaintiff should have done was to consider whether it could bring a constitutional claim for monetary compensation for breach of the right to a fair trial under Article 9 of the Constitution on the basis of Simpson v Attorney General [1994] 3 NZLR 667 [Baigent’s case]. I say this because the right to a fair trial in Article 9 embodies the principles of natural justice or procedural propriety. Baigent’s case was discussed and applied by our Court of Appeal in Punitia v Tutuila [2014] WSSC 1. I am not sure whether a constitutional action for monetary compensation on the basis of Baigent’s case is maintainable in this case because Baigent’s case was not mentioned in the course of the argument.
50. In any event, even if it turns out that a constitutional action for monetary compensation is not maintainable in this case, that is not fatal to the plaintiff’s motion for review seeking declaratory orders. The reason is that there is no requirement for a motion for declaratory orders to be accompanied by a statement of claim disclosing a cause of action, that is to say, there is no need for a cause of action when seeking a declaration. This is unlike a motion seeking any of the ‘extraordinary remedies’ of mandamus, injunction, prohibition, and certiorari which must be accompanied by a statement of claim and a supporting affidavit in terms of rule 196 of the Supreme Court (Civil Procedure) Rules 1980. In Liability of the Crown (2000) 3rd ed, the learned authors state at 2.3 (a), p. 26:
    • “Ironically, the absence of coercive relief has made the declaration an exceedingly useful public law remedy, because the plaintiff need not make out a ‘cause of action’ in the traditional sense...”
51. I have therefore decided not to strike out the plaintiff’s cause of action for procedural impropriety but to grant leave to the plaintiff to consider re-pleading its case on the basis of Baigent’s case if it wants to do so. Should the plaintiff decide to re-plead its case on the basis of Baigent’s case, then a further amended statement of claim should be filed and served in 14 days from the date of this judgment. In this regard, counsel for the plaintiff would also have to consider whether the procedural improprieties alleged against the defendants have been cured by the plaintiff’s appeal to the Planning Tribunal. If that is so, then the plaintiff may not receive any compensation for procedural improprieties that have already been cured.

Conclusions

52. (a) The plaintiff’s cause of action in negligence is struck out.
    • (e) The plaintiff’s cause of action for breach of statutory duty is also struck out.
    • (f) Leave of 14 days is granted to the plaintiff to re-plead its case for the alleged procedural improprieties on the basis of Baigent’s case if it wants to do so and to file and serve a further amended statement of claim in respect of the alleged procedural improprieties. Failing to do so in 14 days, the plaintiff’s cause of action for procedural impropriety is automatically struck out.
    • (g) Leave is reserved to the defendants to move again to strike out should a further amended statement of claim be filed.
53. Costs reserved.
    

Honourable Chief Justice