I spent the day in court on Tuesday 25th of February, along with 40-50 other people supporting Erika Harvey. The numbers did reduce by the end of the day.
Last year, the Commissioners made a secret sale of the Marine Precinct to an unsolicited buyer. There was no public tender. The sale was kept secret until after it had gone unconditional. If the sale is completed, all of the working boats that use the facility will be displaced, and they have nowhere else to go.
Sean Kelly, supported by Erika Harvey and other Marine Precinct users, has applied for a judicial review in an attempt to stop the sale. An interim injunction stopping the sale was granted last year. The buyer, supported by Tauranga Council, submitted a motion to strike out the review application. The hearing, which lasted from 9.30 am to 4.30 pm, was about the strike out motion. Sean Kelly is overseas, and did not attend the hearing.
There were three parties at the hearing. In speaking order, two barristers for the buyer, two barristers for Sean Kelly, and one barrister for the council.
The Judicial Review is entirely about process, and whether or not council followed proper process when it sold the Marine Precinct. The review is not about whether the council made a good decision or a bad decision about the sale.
The hearing was therefore very dry, and a lot of it about details. The buyer and the council have lots of money, and had very good lawyers with a lot of time and resources to prepare their case. It is a fact in our so-called justice system, that the party with the deepest pockets often wins.
The Judge will announce his decision in due course. In the meantime, I will give my brief take on the hearing. It is my opinion only, and I am an engineer, not a court barrister.
IMO the buyer’s barristers successfully knocked out some of the review points. They unsuccessfully argued that the application was improper. I thought Sean Kelly’s barristers made some good points, and were weak on other points. The council’s barrister spoke very well.
The case appears to centre around whether there was sufficient consultation by council. Sean Kelly’s barristers argued that making the sale to a private buyer was a meaningful change in direction by the council, and should have required additional consultation. The buyer’s and council’s barristers argued that there had already been sufficient consultation, and that no further consultation was needed. I think that will be the main issue that will decide the outcome of the hearing.
If the hearing goes ahead, the buyer has requested that Sean Kelly guarantee the buyer’s costs if he loses the case.
For me it was the first time I have sat through a court hearing like that, so it was very interesting to observe how it was conducted. The barristers might seem to be doing nothing much, but in fact they are very good at what they do. Hearings have to be conducted in a very specific manner, following very specific rules and procedures. It is easy to misunderstand what is happening.
I was disappointed that the council has decided to oppose the review application. In effect, council is using ratepayers money to support a sale which is detrimental to ratepayers. We are paying twice.
As far as I know, the decision to oppose the review was made in the public excluded section of the council meeting on the 10th of February. We do not know how the individual councillors voted.
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