Carruthers v Otago Regional Council

[2014] NZHC 2212

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN- REGISTRY

CRI-2012-412-36 [2014] NZHC 2212

BETWEEN

JOHN ANDREW CARRUTHERS

Appellant

AND

OTAGO REGIONAL COUNCIL Respondent

Hearing:	On the papers
Counsel:	CS Withnall QC for Appellant A Logan for Respondent
Judgment:	12 September 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 12 September 2014 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Staley Cardoza Lawyer, Dunedin

Ross Dowling Marquet Griffin, Dunedin

CARRUTHERS v OTAGO REGIONAL COUNCIL [2014] NZHC 2212 [12 September 2014]

[1]      The  District  Court  (Judge  LJ  Newhook,  an  Environment  Court  Judge)

convicted the appellant on two charges laid under the Resource Management Act

1991 (RMA) for contravening s 13 of the Act, s 338(1) of the Act making that an offence.

[2]      The appellant farmer was found to have breached s 13(1)(b) by digging the bed of a river and allowing livestock to disturb it by pugging.   The hearing took place on 17 March 2013.   It commenced with an on-site examination and then continued for the balance of the day in legal argument.  The decision was reserved and judgment issued on 27 March.  On 23 May 2013, I granted leave to appeal.  In the course of argument, there was difficulty identifying the question of law, not because the case turned on the facts, which in part it did, but because of what I described in [6] of that judgment as “the legal complexities of the case”.

[3]      This was a particularly complex application of the RMA.  It required a very experienced counsel.   It was assisted, most unusually, by a visit to the site by the appellate Judge, in order to comprehend the arguments.

[4]      I am satisfied it was a case of special difficulty.

[5]      The written arguments by both sides concentrated on the latter point.   In opposition to the order for costs, Mr Logan emphasised that it is not sufficient that a party has succeeded (s 8(3)).  Rather, he submitted:

The case law emphasises that there must be some discernible feature that takes the appeal out of the ordinary run of cases in which an appellant succeeds on a question of fact or law: e.g. the Court of Appeal decision R v Rust [1998] 3 NZLR 159, 161-162.

[6] This application is governed by s 8 of the Costs in Criminal Cases Act 1967 which provides:

8         Costs on appeals

(1)       Where any appeal is made pursuant to any provision of [Part 6 of the Criminal  Procedure  Act  2011]  the  Court  which  determines  the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.

(2)       No defendant or convicted defendant shall be granted costs under this  section by reason  only of  the fact that his  appeal has been successful.

(3)       No defendant or convicted defendant shall be refused costs under this section by reason only of the fact that the appeal was reasonably brought and continued by another party to the proceedings.

(4)       No Judge, Justice, or Community Magistrate is liable to costs just because an appeal is filed against a determination by that judicial officer.

(5)       If the Court which determines an appeal is of opinion that the appeal includes any frivolous or vexatious matter, it may, if it thinks fit, irrespective of the result of the appeal, order that the whole or any part of the costs of any party to the proceedings in disputing the frivolous or vexatious matter shall be paid by the party who raised the frivolous or vexatious matter.

(6)       If the Court which determines an appeal is of opinion that the appeal involves a difficult or important point of law it may order that the costs of any party to the proceedings shall be paid by any other party to the proceedings irrespective of the result of the appeal.

[7]      In my opinion, this appeal did involve a difficult and important point of law. The question was whether or not the watercourse across the farm was a river or whether it was an artificial watercourse.  Section 2 of the RMA defines a “river” as:

2        Interpretation

(1)      In this Act, unless the context otherwise requires,—

river means a continually or intermittently flowing body of fresh water; and includes a stream and modified watercourse; but does not include  any  artificial  watercourse  (including  an  irrigation  canal, water supply race, canal for the supply of water for electricity power generation, and farm drainage canal).

[8]      Part of the difficult with the case is that a “modified watercourse” is not defined further by the statute.  Having set out the facts in my judgment, on appeal from the District Court, 37 paragraphs were devoted to analysis of the facts against the law, including issues as to what was meant by an “intermittently flowing body of fresh water”.

[9]      I identified the issues in [23] and [24] of my judgment as follows:

[23]     I prefer to examine the issues in this order:

(a)       Would this current watercourse from State Highway 87 to Ngapuna Road (ie, across the farm) be a “river” absent the inflows of water from the diversion from Six Mile Creek?

(b)       If no, did the bed of the current watercourse, particularly below the cutty grass flat, become a river because of the inflows from Six Mile Creek?

(c)       Can the last section, the scene of the changes (the ditch/bed,

339 metres long, between Ngapuna Road and the dam) be isolated as river or not?

[24]      The issues could be approached the other way around, but there is a risk that that analysis would obscure the question of whether or not this is naturally a river. For reasons which will become apparent in my analysis, whether or not this watercourse is naturally a river is very relevant to the ultimate application of the RMA to the conduct of the appellant.

[10]     These are sophisticated issues of mixed law and fact.  I am satisfied that the appeal involved more than one difficult point of law. Therefore I am of the view that this is a case in which this Court has the jurisdiction to award costs.   One of the arguments against awarding costs was delay in making the application.   I do not think that is a problem for the Regional Council.   If anything, postponement of expenditure is a saving.  For these reasons, I am in favour of awarding costs.

[11] The second issue is quantum. Section 8(1) empowers the Court to make such an award as it thinks fit, subject to the regulations.

[12]     The regulations were last updated in 1987.  The amount prescribed in respect of an appeal against conviction is $240 and for appeal against sentence $136.  These amounts are now 27 years out of date.  The sums for an appeal against conviction is now ridiculous, measured against the value of $240 in 2014 as compared to that sum in 1987.    Regulations could not be made today in these amounts.  They would be ultra vires.

[13]     Mr Logan, for the respondent, relies upon the dictum, which is obiter, in the

Court of Appeal’s decision, Solicitor-General v Moore:1

[29]      The Judge then went on to hold, in terms of s 13(3) of the Act, that the award could exceed the scale fixed by the regulations, to fix the award, and to make the order under s 7 that the Police (rather than the Department

1      Solicitor-General v Moore [2000] 1 NZLR 533 at [29].

for Courts which is the usual source) should make the payment.  Because of the view that we take on the main issue, we need not go further into those three matters, except to note in respect of the first of them that the perceived inadequacy of the scale (last fixed in 1988) is not relevant to the determination under s 13(3) of whether the case is of “special difficulty, complexity or importance”; and on the last that the Police cannot be required to make the payment except on the basis, fixed by s 7(2), that they had acted negligently or in bad faith in bringing, continuing or conducting the prosecution.  No such finding was made by the Judge at the relevant point in his judgment.

[14]     This is another case where I can avoid confronting the regulations because I am satisfied that s 13(3) applies.   This is because of the special difficulty and complexity of the case and, indeed, its importance to the rural community.   The payment of greater costs is desirable.

[15]     Mr Withnall QC suggests costs of two-thirds of actual costs.   That is the theoretical benchmark against which party-party costs are awarded in civil proceedings.

[16]     These proceedings under the RMA are similar to civil proceedings, less so to ordinary criminal proceedings. They require experts in RMA law to argue the cases.

[17]     Without directly applying the two-thirds rule, I am satisfied that the sum of

$4,000 plus GST is an appropriate award of costs.

[18]     Accordingly, this application for costs is granted in the sum of $4,600.  There will be no order for costs in respect of this costs dispute.