Environmental Defence Society Incorporated v Otago Regional Council

[2019] NZHC 189

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-94

[2019] NZHC 189

UNDER

the Resource Management Act 1991

IN THE MATTER

of an appeal under s 299 of the Act

BETWEEN

ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED

Appellant

AND

OTAGO REGIONAL COUNCIL

Respondent

Hearing:	(Determined on the Papers)
Counsel:	D A Allan and M C Wright for Appellant
Judgment:	18 February 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

(application for review of Registrar’s decision declining refund of fees)

[1]    The Environmental Defence Society Incorporated (“the Society”) is appellant in an appeal in the Dunedin High Court. The Society applied for a refund of the filing fee paid on the proceeding. The Registrar issued a decision dated 11 January 2018 declining the application with the reasons for the decision recorded as: “Not a matter of genuine public interest – Appeal continued”.

[2]    Regulations permitting the Registrar to refund fees already paid are made under s 157 of the Senior Courts Act 2016 (“SCA”).

ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED v OTAGO REGIONAL COUNCIL [2019]
NZHC 189 [18 February 2019]

[3]    Under s 160 of the SCA, a Judge or Associate Judge can review the decision of a Registrar in relation to the refund of a filing fee.

[4]    This application to review was made within the 20 working day time frame provided for under s 160(2)(a) of the SCA.

[5]Under reg 23 of the High Court Fees Regulations 2013:

23       Power to refund fees

(1)A Registrar may, on application made to him or her, refund a fee that has been paid if satisfied that –

(a)no application, under regulation 18, for a waiver of the fee was made; and

(b)the fee would have been waived, in accordance with regulation 18, had that application been made; and

(c)the criteria that would have justified that waiver still apply at the date of the application for the refund.

[6]    Regulation 18(2)(b) of the High Court Fees Regulations empowers the Registrar to waive fees if satisfied that the proceeding:

(i)on the basis of one of the criteria specified in regulation 20, concerns a matter of genuine public interest; and

(ii)is unlikely to be commenced or continued unless the fee is waived.

[7]    Regulation 20 sets out the criteria for determining when a proceeding concerns a matter of genuine public interest. Regulation 20(a) applies where there is a question of law that is of significant interest to the public, and reg 20(b) applies where there is a proceeding that:

(i)raises issues of significant interest to the public or to a substantial section of the public; and

(ii)has been or is intended to be commenced by an organisation that, by its governing  enactment,  constitution,  or  rules,  is  expressly  or  by necessary implication required to promote matters in the public interest.

[8]    The Society in its application for review explains its objectives as being to preserve, protect and enhance New Zealand’s natural and cultural resources and environment  and  to  defend  them  against   harm,   misuse,   unsustainable   use  and destruction.

[9]    The appeal to which the fee relates is against an Otago Regional Council decision on the planning framework applying to ports in the Otago region, raising environmental issues relating to the coastal environment, fresh water, biodiversity and landscapes. The application concludes that the outcome of the appeal is regionally significant for Otago as it relates to Otago’s highest value natural areas and their protection and preservation for public use, enjoyment and wellbeing.

[10]   I am satisfied that the proceeding to which the fee waiver relates does raise an issue of significant interest to a substantial section of the public and has been commenced by an organisation whose constitutional rules expressly or by necessary implication require it to promote matters in the public interest.

[11]   The Rules of the Society have been produced and the objectives of the Society include that it is:

(a)To be an advocate for the preservation, conservation, protection and enhancement of the New Zealand environment.

[12]   However, that the matter concerns a matter of public interest as defined by reg 20 is only one of the two criteria that must be met before the fee can be waived. The applicant for a refund must, in addition to showing that the proceeding concerns a matter of genuine public interest, show that the proceeding “is unlikely to be commenced or continued unless the fee is waived” under reg 18(2)(b)(ii).

[13]   It is in respect of this second requirement issue that the application for waiver does not meet the criteria.

[14]   In the original fee waiver application under the heading “Tell us what will happen if this application is declined”, there is the question:

If this application for the fee to be waived is refused, would the organisation move forward with the proceeding?

[15]   The Society has ticked the box “Yes. The organisation would start or continue with the proceeding anyway”.

[16]There is a note added by the Society:

However, [the Society’s] resources are extremely limited. The cost of a filing fee represents a significant expenditure. Other than in-house counsel, assistance with the proceeding is being provided  on a pro  bono  basis by  Mr Allan, partner at Ellis Gould.

[17]   Accordingly, on the frank disclosure of the Society, it cannot be said that the appeal would be “unlikely to be … continued unless the fee is waived” as required by reg 18(2)(b)(ii).

[18]   Having reached that conclusion, the application to review the Registrar’s decision is declined, for while I disagree with the Registrar in respect of whether the proceeding involves a matter of  public  interest,  the  application  does  not  meet  the requirement set out in reg 18(2)(b)(ii).

Associate Judge Lester

Solicitors:

Ellis Gould, Auckland