Brook Valley Community Group Incorporated v The Brook Waimarama Sanctuary Trust
[2017] NZCA 438
•6 October 2017 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA439/2017 [2017] NZCA 438 |
| BETWEEN | BROOK VALLEY COMMUNITY GROUP INCORPORATED |
| AND | THE BROOK WAIMARAMA SANCTUARY TRUST THE MINISTER FOR THE ENVIRONMENT NELSON CITY COUNCIL |
| Counsel: | S J Grey for Appellant |
Judgment: (On the papers) | 6 October 2017 at 10 am |
JUDGMENT OF COOPER J
(Security for Costs)
A The appellant must pay security for costs:
(a) for the first respondent in the sum of $6,600; and
(b)for the second and third respondents in the sum of $2,000 in each case.
BSecurity for costs is to be paid to the Registrar in the total sum of $10,600 within 20 working days of the delivery of this judgment.
____________________________________________________________________
REASONS
Brook Valley Community Group Inc (Brook Valley) has appealed against a judgment of the High Court refusing to make declarations it had sought aimed at preventing the first respondent, The Brook Waimarama Sanctuary Trust (the Trust), from carrying out an aerial drop of poison baits on a wildlife sanctuary managed by the Trust.[1]
[1]Brook Valley Community Group Inc v The Trustees of the Brook Waimarama Sanctuary Trust [2017] NZHC 1844.
In a subsequent judgment, Churchman J declined to make an order staying his earlier judgment, or grant any other interim relief.[2]
[2]Brook Valley Community Group Inc v The Brook Waimarama Sanctuary Trust [2017] NZHC 1947.
In addition to filing an appeal against the High Court’s substantive judgment, Brook Valley applied to this Court for a stay of execution of the judgment and the grant of interim relief preventing the Trust from commencing the proposed poison drop. Brook Valley’s application was rejected by this Court in a judgment delivered on 31 August 2017.[3]
[3]Brook Valley Community Group Inc v The Brook Waimarama Sanctuary Trust [2017] NZCA 377.
The issues that must now be determined concern security for costs. This was initially fixed by the Registrar in the sum of $19,800. That was an application of r 35(5) of the Court of Appeal (Civil) Rules 2005, under which the amount of security for costs payable is normally $6,600 per respondent (if they have different solicitors).[4] Brook Valley has now applied for an order dispensing with security under r 35(6)(c). The respondents, for their part, have joined in an application seeking an increase in the amount of security under r 35(6)(a). The applications have been referred to me and I have decided that it is appropriate for me to determine them.
Background
[4]Court of Appeal (Civil) Rules 2005, r 35(4).
For present purposes, the background can be sufficiently stated by recording the summary given in this Court’s decision declining the application for a stay. The summary was as follows:[5]
[3] The Trust is developing and will operate a bird and other wildlife sanctuary in the Brook Valley, known as the Brook Waimarama Sanctuary on land the Trust leases from the third respondent, the Nelson City Council (the Council). The sanctuary, of some 711 hectares of public land, is surrounded by a predator proof fence and is covered by native bush. It is home to a number of native birds and mammalian pest species. Adjacent to the sanctuary is the Council-owned Dun Mountain Railway Walkway and the Brook Reserve, as well as private farmland owned by various persons, some of whom are involved in the [Brook Valley] Community Group. The aerial drop the Trust intends to conduct is of the poison brodifacoum.
[4] On 11 May 2016 a resource consent was granted by the Council permitting the Trust to carry out a series of aerial brodifacoum drops, subject to 47 conditions. Then on 20 February 2017 regulations were made by Order in Council under s 360(1)(h) of the Resource Management Act 1991 (the RMA) following a recommendation by the Parliamentary Commissioner for the Environment in 2011 and consultation with interested parties, including The Royal Forest and Bird Protection Society of New Zealand. Regulation 5 of the Resource Management (Exemption) Regulations 2017 (the Regulations), as amended on 2 June 2017, provides that the discharge of the RMA contaminant brodifacoum is exempt from s 15 of the RMA if the discharge complies with the Regulations. As a consequence, on 9 May 2017, the Trust notified the Council of a wish to surrender, and the Council approved the part surrender of the Trust’s resource consent as it related to the aerial discharge of brodifacoum and cancelled the conditions previously imposed.
[5] The Trust was intending and still intends to carry out the aerial drop, relying on the authority of the Regulations. The intention is to kill mice, ship rats and Norway rats. A total of 26.5 tonnes in mass will be dropped, and steps will be taken to deter birds from consuming it. The drop is intended to cover the entire sanctuary area subject to a zone which is to be hand baited. The goal is to create a pest-free sanctuary.
[6] The Community Group issued the judicial review proceedings within weeks of the Regulations being enacted. The Community Group argues that the Regulations are unlawful and that the exemptions under the Regulations apply only to s 15 of the RMA. A declaration is sought that s 13(1)(d) of the RMA prohibits the aerial broadcast of brodifacoum and other poison baits in the area. A declaration is also sought that a provision in the Nelson Resource Management Plan prohibits the aerial broadcast of brodifacoum and other toxic baits in certain circumstances that apply in this case, and that if the Regulations were lawful various requirements have not been met.
[7] The appeal was filed shortly after the release of Churchman J’s substantive decision. As we have said there has been an application for a stay and interim orders in the High Court which were declined by Churchman J on 15 August 2017. He found that there were insufficient grounds to grant the stay and the interim relief. He observed:[6]
To [grant relief] would deny the respondents the fruits of the litigation and would cause irreparable harm to the first respondent’s interests. The applicant’s position in the appeal will not be rendered nugatory by the refusal to grant a stay.
Brook Valley’s application
[5]Brook Valley Community Group Inc v The Brook Waimarama Sanctuary Trust, above n 3.
[6]Brook Valley Community Group Inc v The Brook Waimarama Sanctuary Trust, above n 2, at [23].
Brook Valley’s application to dispense with security proceeds on the basis that it is an incorporated society of limited means and that the matters raised by its appeal are public interest matters going to the interpretation of important statutory provisions, constraints on the exercise of executive power, the rule of law and the principles of natural justice. It claims to raise significant issues concerning the concept of “sustainable management” under the Resource Management Act 1991 (the RMA) and the protection of water and riverbeds from deliberate contamination by poison.
Central to the case is the interpretation and proper application of s 13(1)(d) of the RMA and the relationship between that provision, s 15(1) and regulations that exempt discharges of specified toxic agents into water and land in circumstances where it may enter water from the prohibition that would otherwise apply under s 15(1). Section 13(1)(d) prohibits the deposit of any substance in, on, or under the bed of any lake or river unless allowed by a national environmental standard, a rule in a regional plan or a resource consent. Under s 15(1), no person may discharge any contaminant into water, or onto land in circumstances that may result in the contaminant entering water unless allowed by a national environmental standard, a rule in a regional plan or a resource consent. Among the arguments Brook Valley intends to pursue is that the regulations are invalid.
Brook Valley claims that the resolution of the issues will establish an important precedent. It points out that it has consistently received fee exemptions in the proceeding to date and asserts it would be contrary to the administration of justice to allow procedural or financial barriers to stand in the way of the appeal proceeding to a hearing. It notes that the second respondent is a Minister of the Crown (the Minister of Conservation) and the third respondent (the Nelson City Council) applied to join the proceedings.
Since this Court’s judgment declining interim relief, Brook Valley has also been able to rely on conclusions reached for the purposes of that application that the appeal raises issues that are “open to argument”,[7] that there is no doubt about the bona fides of Brook Valley and that there was a “public interest element” that was reflected in the application for stay.[8]
The respondents’ application
[7]Brook Valley Community Group Inc v The Brook Waimarama Sanctuary Trust, above n 3, at [12].
[8]At [13].
The respondents’ application for increased security is advanced on the basis that security for costs is the norm, the prospect of recovering costs from Brook Valley in the event the appeal fails is low, there have been no undertakings given in the High Court proceeding, the merits of the appeal are weak, and the appeal is overly broad. Counsel submit that the direct benefits to Brook Valley of continuing the appeal are low given that the Trust is proceeding with its intended applications of brodifacoum baits. Counsel note that Brook Valley is an incorporated society and that it would not be unreasonable for its members to contribute financially to the costs of the litigation initiated and pursued by it. They refer to the observations made by this Court in declining the application for a stay, noting that there was no undertaking as to damages, that some of the members of the group are land owners and that the Court was not satisfied “a meaningful undertaking could not be provided if there was a willingness of a member or members of [Brook Valley] to give it”.[9]
[9]At [20].
Counsel for the respondents submit that the previous waiver of filing fees should not have the result that security for costs is dispensed with. They note finally that Brook Valley is not legally aided. They submit that, as a consequence, it has not had the benefit of an independent assessment of the merits of its appeal, which would otherwise protect respondents against a hopeless appeal being brought by an impecunious appellant.
The respondents calculate that on the basis that costs are payable for a standard appeal, and the respondents are successful, each would be entitled to costs in the sum of $14,049.[10] Allowing for a two‑day hearing of the appeal it is sought that security should be ordered in the sum of $42,147, more than twice the sum fixed by the Registrar.
Discussion
[10]See Court of Appeal (Civil) Rules, r 53C(1)(a) and sch 2; and High Court Rules 2016, sch 3.
Brook Valley accepts that by the time the substantive appeal is heard, it is likely that the intended poison drop will have been completed. However, the issues going to its lawfulness will remain and I accept that they raise relevant public interest issues that can appropriately be pursued on appeal. It is not possible to say anything meaningful about the prospects of success other than to observe that this Court previously decided the appeal raises arguable issues.
The general approach to applications to dispense with security for costs on grounds of impecuniosity has been summarised by the Supreme Court in Reekie v Attorney-General.[11] In that case the Court said:
[35] Against that background, we consider that the discretion to dispense with security should be exercised so as to:
(a)preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
[11]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
The Court observed that a reasonable and solvent litigant would not proceed with an appeal that is hopeless or one in which the benefits are outweighed by the costs of proceeding. However, analysis of costs and benefits is not to be confined to those which can be measured in money.[12] Later in the judgment the Court emphasised:
[41] As we have made clear, cost and benefit are not to be assessed in purely financial terms. An appeal may raise issues of public interest which are not measurable in economic terms. As well, considerations which are personal to an appellant (for instance, considerations affecting reputation) may legitimately fall to be considered as part of the cost/benefit assessment. Proceedings relating to the vindication of rights under the New Zealand Bill of Rights Act 1990 may have both personal and public non-financial benefits. In the end, what is called for is an exercise of judgment.
[12]At [35].
The approach to ordering increased security is different. In accordance with this Court’s judgment in Houghton v Saunders, considerations relevant to whether increased costs should be awarded include: past procedural misconduct, pointing to a risk that the appellant cannot or will not meet costs on the appeal; whether the appeal is obviously without merit or vexatious; and whether there is any reason to suppose the respondents will encounter difficulty in getting their costs paid promptly.[13]
[13]Houghton v Saunders [2015] NZCA 141 at [8]–[10].
I am satisfied that this is not a case in which increased security should be awarded. As to the merits, this Court has already said that the appeal raises issues that are open to argument. The other factors relied on by the respondents do not persuade me that increased costs should be ordered. I do not read Houghton v Saunders as establishing that impecuniosity of itself should be taken into account in considering whether there are reasons to suppose a respondent will encounter difficulty getting costs paid promptly. The examples given in that case refer to likely costs and disbursement that are unusually large, or overseas residence enabling an unsuccessful appellant to shelter assets from an award of costs.[14] Brook Valley is not in that category. The information about Brook Valley’s financial position is not extensive. In submissions lodged on 23 August 2017 by Brook Valley in the context of the application for stay it asserted that it is impecunious. The respondents say that as at 20 December 2016 Brook Valley had an account balance of $62.78. In this Court’s judgment declining a stay, as noted earlier, the Court referred to the fact that some members of the group are landowners who might have been in a position to file a meaningful undertaking.[15] No evidence has subsequently been filed in relation to the ability of Brook Valley to raise funds that could be used for the purposes of security for costs.
[14]At [10].
[15]Brook Valley Community Group Inc v The Brook Waimarama Sanctuary Trust, above n 3, at [20].
I do not place any weight on the respondents’ argument to the effect that the fact Brook Valley is not legally aided means that it has not had the benefit of an independent assessment of the merits of the appeal. As Brook Valley’s counsel, Ms Grey, points out, it does not qualify for legal aid and the reference to that consideration in Reekie was clearly in the context of an impecunious appellant unable to obtain legal advice.[16] That is not this case. The Court also recognised that sometimes impecunious appellants secure legal representation from lawyers willing to act either without remuneration or on deferred or conditional remuneration arrangements. In those cases, there will likely have been some assessment that the case is a proper one for appeal.[17]
[16]Reekie v Attorney-General, above n 11, at [36].
[17]At [37].
I agree with the respondents, however, that the fact fees have been waived is not a ground for dispensing with security for costs. As the Supreme Court observed in Reekie, security for costs is an inter parties issue, unlike fees.[18]
[18]At [42].
In the present case, it is necessary to take account of the fact that there are three respondents, one of which, the Trust, is itself a body claiming to represent aspects of the public interest. In this Court’s decision declining leave, the Trust was referred to as follows:[19]
[14] The Trust has, if anything, a stronger claim to the public interest than the Community Group. It has over 360 members who pay annual subscription fees. Volunteers provide approximately 35,000 hours of voluntary assistance each year to the Trust. During construction of the fence individuals and companies provided labour and sponsored materials. The purpose of the Trust is to establish a pest-free sanctuary where lost species can be re‑introduced and existing species preserved, a goal that is in the public interest.
[19]Brook Valley Community Group Inc v The Brook Waimarama Sanctuary Trust, above n 3.
The Trust succeeded in the High Court and I can see no basis upon which it would be appropriate to require it to defend its position on appeal without security for costs.
On the other hand, given the apparently impecunious state of Brook Valley, a requirement that it pay security for costs in the full amount in respect of all three respondents might very well have the effect of bringing to an end a case raising arguable issues in respect of the exercise of public powers. The other two respondents are respectively the relevant Minister, and the local authority with responsibility for enforcing s 15 of the RMA. A reduction in the security payable in respect of those parties commends itself to me as the fairest way of resolving the present issues.
Result
For these reasons, I have decided that Brook Valley must pay security for costs:
(a)for the Trust in the sum of $6,600; and
(b)for the Minister and the Council in the sum of $2,000 in each case.
Security is to be paid to the Registrar in the total sum of $10,600 within 20 working days of the delivery of this judgment.
Solicitors:
Duncan Cotterill, Nelson for First Respondent
Crown Law Office, Wellington for Second Respondent
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