Environmental Law Initiative v Canterbury Regional Council
[2024] NZHC 1669
•24 June 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-7
[2024] NZHC 1669
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016 AND
IN THE MATTER
of an application for review
BETWEEN
THE ENVIRONMENTAL LAW INITIATIVE
Plaintiff
AND
CANTERBURY REGIONAL COUNCIL
Defendant
Hearing: 18 June 2024 Appearances:
D A C Bullock and I K Rollinson for Applicant L F de Latour, K T Dickson for Respondent
Judgment:
24 June 2024
JUDGMENT OF OSBORNE J
[1]Two interlocutory issues arise in this judicial review proceeding:
(a)should the applicant be ordered to serve the proceedings on certain persons with time limits for appearances and/or should the applicant be ordered to publicly notify the proceedings?
(b)should the respondent be ordered to file and serve further particulars and a more explicit pleading of its amended statement of defence?
THE ENVIRONMENTAL LAW INITIATIVE v CANTERBURY REGIONAL COUNCIL [2024] NZHC 1669 [24 June 2024]
Background — r 5.63 of the Canterbury Land and Water Regional Plan
[2] The Canterbury Regional Council (Council) is the consent authority for the Canterbury Region under the Resource Management Act 1991 (RMA). The Council also exercises functions under the RMA in relation to the establishment of regional plans.
[3] On 13 August 2015, the Council upon receipt of a report of hearing commissioners (Hearing Panel) approved the Canterbury Land and Water Regional Plan (CLWRP) as a regional plan under the RMA.
[4] The CLWRP contained a rule — r 5.63 — whereby the discharge of nutrients onto or into land in circumstances that may result in a contaminant entering water that would otherwise contravene s 15(1) of the RMA is a permitted activity, subject to two conditions.1
The challenge
[5] The Environmental Law Initiative (ELI) is a charitable trust board, incorporated in October 2019. Its charitable purposes include the preservation and protection of natural resources.
[6] ELI in this proceeding applies for review of the Council’s inclusion of r 5.63 in the CLWRP.
[7] ELI invokes s 70(1) of the RMA, which required the Council, before including a rule in a regional plan that allows (amongst other activities) the discharge of contaminants as a permitted activity, to satisfy itself that none of the environmental effects listed in s 70(1)(c)–(g) was likely to arise from such discharge.
[8] ELI pleads the Council failed to so satisfy itself before approving r 5.63 and that the Council could not have been so satisfied.
1 Rule 5.63 of the CLWRP has since been amended but without altering the substance of the rule.
[9] The Council, by its first statement of defence, in response to that pleading, denied that it was not so satisfied and that it could not have been so satisfied.
[10] ELI sought particulars of the basis of the Council’s decision and where it was recorded. By its amended statement of defence (ASoD) the Council, by way of particulars, has pleaded that all material before the Hearing Panel formed part of the Council’s decision-making record and that that “included without limitation” five particularised categories of material.
Service
The procedural regime
[11] Section 9(1) of the Judicial Review Procedure Act 2016 (JRPA) identifies the persons who must be named as respondent to an application.
[12] Section 9(1)(a) of the JRPA applied in this case to require ELI to name the Council as respondent (as it has), because the Council is the body whose act or omission is the subject-matter of the application.
[13] Under s 9(1)(b) of the JRPA, any application, if it relates to any decision made in proceedings, has to be served on every party to those proceedings.
[14] In its application for directions as to service, the Council did not cite or rely on s 9(1)(b) of the JRPA. Nor did Ms de Latour, for the Council, refer to s 9(1)(b) in her written submissions. In the course of the hearing, however, Ms de Latour suggested that s 9(1)(b) may operate in this case because the Council’s approval of r 5.63 in the CLWRP may be viewed as a “decision made in proceedings”. She submitted the “proceedings” referred to in the sub-section may include a “Council-level decision”. Ms de Latour noted the decision of this Court in Hughes v Auckland Council as a case in which (albeit under pt 18 High Court Rules 2016) the Court found a body affected
by a Council-level decision should have been served with the judicial review proceedings.2 Wylie J observed:
[33]Relevantly, s 9 of the Judicial Review Procedure Act requires that not only the person whose act or omission is the subject of the application be named as a respondent, but also, where the application relates to any decision made in proceedings, that every party to those proceedings also be a party to the application.
[34]In this case, the Board of Trustees was a party to the decisions made by the Council. They were the named applicants in the application for resource consent. The Council's decisions, both in regards to notification and granting consent, related to the building on the school site. The Board of Trustees and the school are directly affected by the relief sought by Mr Hughes.
[35]While the word “proceedings” used in s 9 is not defined, it has not been construed narrowly. Not infrequently judicial review is sought of decisions made by quasi-judicial bodies, such as Councils. Decisions made by such bodies are decisions made in “proceedings”. In this case, the Board of Trustees was a party to the “proceedings” commenced by the filing of the retrospective resource consent application. The Board should have been joined as a party and served.
[15] The application of s 9(1)(b) is not infrequently discussed in relation to the decisions of “quasi-judicial bodies” such as councils.3
[16] On any view of the Council’s approval of the CLWRP, it is not apt to identify those individuals or organisations who were submitters or otherwise interested in the Council’s plan process to describe them as “parties” to “proceedings”. The concept involved in s 9(1)(b), if a person is to be named as the respondent under that provision, is that they were a party and were therefore directly affected by the decision made in the proceeding.
[17] Accordingly, ELI, by naming the Council as the single respondent in this proceeding did not breach the requirements of s 9(1) of the JRPA. That leaves for consideration whether I should make service or other directions under s 14 of the JRPA
– this was the express provision relied on in the Council’s application.
2 Hughes v Auckland Council [2021] NZHC 3296 [Hughes] at [41].
3 See, for instance, Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [JR9.01(a)].
[18] Relevant to the matters on which submissions were made, s 14 of the JRPA provides:
14 Orders and directions
(1)A Judge may make any of the orders and directions specified in subsection (2)—
(a)at a case management conference held under section 13; or
(b)at any other time before the hearing of the application.
(2)The orders and directions referred to in subsection (1) are orders and directions to—
…
(b)direct that—
(i)a person be named, or not named, as a respondent; or
(ii)the name of any party be added or struck out:
(c)direct which parties are to be served:
(d)direct a person to file a statement of defence within a specified time:
…
(m)give any consequential directions that the Judge considers necessary.
[19] Ms de Latour explains the Council’s foundation for requesting directions as to service on identified persons and classes of person is that those identified will be “directly affected” by the subject matter of this proceeding. The threshold of “a party directly affected by the determination of the dispute”, adopted by both Ms de Latour (for the Council) and by Mr Bullock for ELI was drawn from the decision of this Court in Kellian v Minister of Fisheries.4 In that case, Doogue J addressed the test for joinder in judicial review proceedings (under the then Judicature Amendment Act 1972). Doogue J drew a distinction between two categories of interested people:
4 Kellian v Minister of Fisheries (2002) 16 PRNZ 223 (HC).
(a)those who have an interest indirectly – not justifying joinder but potentially resulting in their seeking to have counsel attend with a watching brief;5 and
(b)those who are “directly affected” by the determination in the dispute.6
[20] For the “directly affected” test Doogue J referred to Mainzeal Corporation Ltd v Contractors Bonding Ltd.7 There, Barker J had identified the appropriate test for joinder in ordinary civil proceedings, drawn from a Privy Council decision, as:8
…will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?
[21] In Capital and Merchant Financial Ltd (in rec and in liq) v Perpetual Trust Ltd, Thomas J in relation to the proposed joinder of interveners or interested parties found on a review of the authorities that certain propositions could be distilled, they being:9
(a)An applicant must show that its legal rights against or liabilities in relation to the subject matter will be directly affected. Commercial, financial, or reputational interests in the outcome will only be sufficient in exceptional circumstances.
(b)If the intending intervener’s presence before the Court will not improve the quality of information before the Court, that will count heavily against its addition to the proceedings.
(c)A relevant consideration is the extent to which the proposed intervener can rely on one of the parties to protect its rights and obligations.
(d)If either party would be prejudiced by the intervention, or if the intervention would create an impression of partiality, the application will not be granted.
(e)In cases where development of the law is likely, the application is more likely to be granted if the proposed intervener has special expertise to assist the Court on wider public policy issues.
5 At [11].
6 At [9].
7 Mainzeal Corporation Ltd v Contractors Bonding Ltd (1989) 2 PRNZ 47 (HC) at 50. Also see
Hallam v Ryan [Parties] (1989) 3 PRNZ 132 (HC) at 134.
8 At 50, citing Pegang Mining Co Ltd v Choong San (1969) 2 MLJ 52.
9 Capital and Merchant Finance Ltd (in rec and in liq) v Perpetual Trust Ltd [2015] NZAR 228 at [41].
(f)The underlying issue is whether it would be unjust to adjudicate on the matter in dispute without the intervener being heard. Several of the factors mentioned above tie into this issue.
(g)Where intervention is justified, the degree of participation granted to the intervener should be the minimum necessary to protect the intervener’s interests
[22] Counsel referred to a number of cases in which joinder of additional parties was in issue. At one end of the spectrum are cases where the applicant for joinder has a conferred right such as the resource consent in Hughes v Auckland Council10 or as a party to a tendered contract.11 Towards the other end of the spectrum are cases where the subject matter is a general provision of law that does not confer a particular legal right on the applicant for joinder. I understood counsel to recognise in the course of their submissions that there will be a range of “interests” sitting along such a continuum and the sufficiency of a particular person’s degree of interest will inevitably require a fact-specific consideration in relation to that applicant or class of applicants for joinder.
[23] For the reasons I come to from [33] below, I do not consider it appropriate as matters stand to direct service on the persons or classes of persons identified by the Council.
[24] I further observe that in determining whether service directions should be made (with a view to the possible joinder or intervention of persons so served) the Court is exercising a discretion that should be exercised cautiously having regard to the fact that procedures provided under the JPRA are intended to provide for the prompt and efficient review of administrative action.
Amended scope of Council’s application
[25] Shortly before the hearing, and in light of the written submissions filed for ELI, Ms de Latour gave notice that aspects of Council’s interlocutory application were
10 Hughes v Auckland Council above n 2.
11 See Minister of Education v De Luxe Motor Services (1972) Ltd [1990] 1 NZLR 27 (CA), the Court of Appeal observing at 18 that the successful tenderers’ interests were directly affected by the judicial review application.
abandoned. That included a request for a direction that ELI serve all the persons and organisations that made submissions on the notified version of what became r 5.63.
[26]Remaining for consideration as persons who might be served are:
(a)persons who rely on r 5.63 to authorise discharges from their farming operations (farmer group);
(b)10 named sets of organisations who were parties to an appeal by Nelson Marlborough, North Canterbury and Central South Island Fish and Game Councils (Fish and Game appeal) of the Council’s decision on CLWRP, including such other entities as the Christchurch City Council, Federated Farmers, Fertiliser Association of New Zealand, and Te Rūnanga o Ngāi Tahu (Fish and Game appeal group).
[27]The Council sought orders that:
(a)ELI provided copies of the proceedings to each submitter and each party to the Fish and Game appeal;
(b)the Council issue a public notice twice in the Press, and on the Council’s website with a copy of the proceedings; and
(c)any person wishing to participate in proceedings following service of the documents on them must file a statement of defence or notice of appearance within 10 working days after service (if served directly) or five working days after the second publication of public notice in the Press.
Submissions – the interest of the identified persons
[28] Ms de Latour submitted the quashing of r 5.63 as sought by ELI would affect the farmer group’s rights in a way equivalent to the quashing of a resource consent, as r 5.63 permits discharge without the need to apply for resource consent. Farmers who currently cause discharges from their farming operations would, upon the quashing of
r 5.63, no longer have a lawful basis for discharge. The farmer group would have a period of uncertain duration and uncertain outcome to obtain necessary resource consents during which they would be in breach of the rules relating to discharge under s 15 of the RMA and subject to enforcement action by the Council (recognised by Ms de Latour as unlikely to occur) or by other persons under s 316 of the RMA.
[29] Ms de Latour stated the Council does not keep particular records identifying the individuals who comprise the farmer group. Ms de Latour referred to evidence provided by the Council that suggests, through other records, the total number in the farmer group is likely to be in the hundreds.
[30] Ms de Latour referred also to the Council’s affidavit evidence in relation to the Fish and Game appeal group. The Fish and Game appeal related to the Council’s decision on the CLWRP and raised questions of law relating to s 70(1) of the RMA, including whether the Council had erred in failing to satisfy itself that effects specified in s 70(1)(g) of the RMA were not likely to arise. The case was resolved without going to a hearing.
[31] In her oral submissions, Ms de Latour suggested the Fish and Game appeal group appeared to be a “good representative sub-group of people affected” by r 5.63.
[32] The overall thrust of Ms de Latour’s submission was that at least some persons in the farmer group and in the Fish and Game appeal group were likely to be affected by the quashing of r 5.63 and, as a matter of natural justice, are entitled to be heard in relation to the formulation of orders as to relief in the event the Court finds r 5.63 was unlawfully included in the CLWRP.
Discussion
[33] I am not satisfied it is appropriate to make the service or publication directions sought by the Council.
[34] The proposed orders by their nature would act as a form of invitation to some hundreds of individuals and organisations to seek either to be joined as parties or to intervene. While the determination of whether a particular applicant should be joined
or intervene would be made at the time of that individual’s application, I am not satisfied on the evidence adduced that service of such a broad group (undefined in terms of individuals) is an appropriate requirement in the context of this proceeding. Individuals in the two groups may or may not be directly affected.
[35] In considering whether to direct service I must also have regard to the fact the central issue relates to the vires of r 5.63, a matter on which it is clear the Council will fully participate and intends to defend the regularity of the rule. As Mr Bullock observed, it is unlikely the fully informed and efficient determination of that issue will be assisted by any other person being joined or intervening. If a person were to seek to be joined or to intervene, the likely outcome is that their joinder or intervention would be permitted, if at all, in relation to relief only. That assessment would be made in relation to the specific circumstances of that applicant, rather than on the very generalised approach taken on the present application as to who may be a relevantly affected person.
[36] I also note the Council by its pleading is not focused narrowly on resisting ELI’s review application on the basis of the vires of r 5.63. The Council has pleaded affirmatively that both the Council and “third parties, including farmers” will be prejudiced should r 5.63 be quashed. The Council pleads those third parties have relied on r 5.63 to permit incidental discharges from their farming operations, because such quashing would require all such persons to apply for and obtain resource consent. Given that it will be incumbent upon the Council to adduce the evidence to support those pleadings, it would appear inevitable the Council will identify and adduce evidence from what Ms de Latour has referred to as a “representative sub-group”.
[37] The Court of Appeal’s decision in D v C [Intervention] is informative.12 That proceeding involved an appeal relating to the interpretation of child support provisions under the Family Support Act 1991. An association sought leave to intervene on the basis that it was well placed to draw to the Court’s attention the impact the issue on appeal would have on women and children. Amongst other reasons for dismissing the application for intervention, the Court of Appeal observed that points which the
12 D v C [Intervention] (No 2)(2001) 15 PRNZ 474 (CA).
Association might wish to advance could be presented through counsel for the respondent.
[38] Finally, it is clear that the existing parties have an interest in ensuring the issues in this proceeding and the existence of the proceeding itself are matters known and understood more broadly. I am informed that ELI already publishes information relating to the proceeding on its website. From the Council’s evidence and submissions, it is apparent that the Council also maintains a website where information relating to the proceeding can be made available – it is that very website that the Council proposes should have to be utilised if the Court makes the proposed directions. There is no impediment to the Council, with its knowledge of addresses that will exist on its database, undertaking one or more mail drops to its relevant rate-payers and any other relevant people with whom such mail drops could provide information or updates in relation to the proceedings, including as to the basis upon which the Council itself is defending the review application. At such point, if there are particular individuals or organisations who wish to be joined or intervene, their applications may be made and supported by appropriate information as to the way and extent to which they say they would be affected by the quashing of r 5.63.
[39] For this combination of reasons, the Council’s application for directions as to service and publication will be dismissed.
Further particulars
The application
[40] ELI’s application for an order requiring the Council to provide a more explicit pleading arises in the context of the pleading of a negative in the statement of claim. ELI’s pleaded case is that the Council did not consider and was not in fact satisfied of the matters of which it was required to be satisfied under s 70(1) of the RMA, before including r 5.63 (the “no consideration/satisfaction pleading”).
[41] The Council filed a statement of defence in February 2024 which ELI considered did not satisfactorily respond to the no consideration/satisfaction pleading.
ELI therefore served a notice for further and better particulars and a more explicit pleading, to which the Council responded with its ASoD.
[42] ELI makes the present application on the basis that ASoD remains an inadequate pleading in response to the consideration/satisfaction pleading.
Pleadings
[43]ELI’s relevant pleadings are:
22.At no point in the Hearing Commissioner process or any other process preceding and connected to the approval of the proposed CLWRP on 13 August 2015, which included r 5.63, did the CRC:
(a)identify that a s 70(1) analysis was required in relation to r 5.63
(b)consider evidence or sufficient evidence of the effects or likely effects in receiving waters of the discharge of contaminants or water (in combination with the same, similar, or other contaminants) to be allowed by the activities permitted by r 5.63;
(c)assess the likelihood of the effects in s 70(1) by reference to evidence of effects or likely effects associated with the activities permitted by r 5.63, or satisfy itself that the requirements of s 70(1) were met in relation to r 5.63 (which required it to satisfy itself that the specified effects were not likely to arise);
(d)provide reasons demonstrating why and how it had satisfied itself that the requirements of s 70(1) were met in relation to r 5.63.
23.By failing to identify the need to analyse the matters in s 70(1) before enacting r 5.63, by failing to consider evidence or sufficient evidence of the effects of likely effects relevant to the analysis required by s 70(1) by reference to r 5.63, and by failing to conduct an s 70(1) assessment in relation to r 5.63 the CRC:
(a)was not satisfied that the requirements of s 70(1) were met in relation to r 5.63; and
(b)could not have been satisfied that the requirements of s 70(1) were met in relation to r 5.63.
24.Because the CRC was not satisfied, and could not have been satisfied, that the requirements of s 70(1) were met before r 5.63 was included in the CLWRP the inclusion of r 5.63 in the CLWRP was unlawful.
[44]By its ASoD, the Council pleaded in response:
22It admits paragraph 22 to the extent that a regional council is required to satisfy itself of the requirements of section 70(1) before including a rule permitting a discharge in a regional plan, including for Rule 5.63, but denies the remainder of paragraph 22 (inclusive of (a) to (d)) and further states that:
(a)The requirements under section 70(1) of the RMA do not prescribe the steps a regional council must take to be satisfied of the matters in section 70(1);
(b)Section 70(1) of the RMA does not require a regional council to undertake this enquiry specifically for each permitted activity rule proposed to be included in a regional plan;
(c)Various submitters to the CLWRP (including without limitation Nelson Marlborough, Central South Island and North Canterbury Fish and Game Councils and the Director-General of Conservation) raised issues regarding compliance with section 70, including in relation to the nutrient management rules (of which Rule 5.50/5.63 formed part), leading to the Hearing Commissioners making a decision on these matters as part of their decision on submissions;
(d)Section 70(1) was considered as part of the evaluation of the CLWRP (including the nutrient management regime), through the Section 32 Report and through considering submissions and evidence throughout the hearings in relation to nutrient discharge provisions and the approach presented to the Hearing Commissioners through the Section 42A Officer Reports, as well as legal submissions presented both on behalf of the CRC and submitters;
(e)All material before the Hearing Commissioners formed part of the CRC’s decision-making record, including without limitation:
(i)From notification, the CRC was compliant with its obligations under section 70 of the RMA, stating in the section 32 report accompanying the notified CLWRP:
The Canterbury Regional Council has been mindful of the responsibilities and obligations imposed by section 30, section 63 and sections 65-70 of the RMA. The CLWRP has been reviewed by independent legal counsel and the RMA requirements have been met throughout.
(ii)In the officers’ report prepared for the Hearing Commissioners, the CRC officers included the relevant test of section 70, before stating:
The permitted activity rules for discharges in the CLWRP have been designed to ensure compliance with section 70 of the RMA.
(iii)The Hearing Commissions considered of all of the submissions, evidence and legal submissions presented across 37 hearing days, demonstrating cognisance with the requirements of section 70 of the RMA by stating:
Section 70(1) directs that before making a rule that allows as a permitted activity a discharge of contaminants into water or onto or into land in circumstances which may result in contaminant entering water, the regional council is to be satisfied that none of certain effects is likely to arise after reasonable mixing, including any conspicuous change in visual clarity, or the rendering of fresh water unsuitable for consumption by farm animals, or any significant adverse effects on aquatic life. Section 70(2) directs that before making a rule requiring adoption of the best practicable option to prevent or minimise adverse effect on the environment of any discharge of a contaminant, a regional council is to be satisfied that having regard to the nature of the discharge and the receiving environment, and other alternatives (including requiring observance of minimum quality standards), the rule requiring adoption of the best practicable option is the most efficient and effective means of preventing or minimising those adverse effects.
(iv)The Hearing Commissioners’ report, in relation to the nutrient management rules (including Rule 5.63) stated:
We received a great deal of evidence from submitters on both the notified provisions and the initial revised policy and rule regime recommended by the officers. We have considered and weighed all of that evidence in coming to the findings that we set out below. However, given the sheer volume of material received and the wide range of divergent relief sought, we do not discuss or summarise the position of each individual submitter, or discuss the efficiency,
effectiveness, benefits or costs of the specific relief sought by each individual submitter.
(v)The CRC decision to approve the CLWRP followed the CRC adopting the Hearing Commissioners’ report as its own at the meeting of the CRC on 5 December 2013.
23It denies paragraph 23 and repeats paragraphs 21 and 22.
24In relation to paragraph 24:
(a)It denies paragraph 24 and repeats paragraphs 21, 22 and 23 further stating that it was satisfied that the requirements of section 70 of the RMA were met following the hearing of all submissions, evidence and legal submissions on the CLWRP by the Hearing Commissioners.
(b)It is not required to plead in response to subparagraphs 24(a) to (g) inclusive which details the relief sought.
ELI’s application
[45]ELI’s application is made under r 5.21(3) High Court Rules.
[46] ELI observes the core of the no consideration/satisfaction pleading in the statement of claim is that the Council failed to consider certain things (being the matters listed at [22] – [24] of the pleading). ELI observes the Council’s denial of the no consideration/satisfaction pleading is a pleading that it did consider these things but the Council has not identified what was considered.
[47]The Council opposes the application. It says:
(a)the ASoD is not evasive as it provides specific references to documents where s 70(1) was considered by the Hearing Panel;
(b)an aspect of the Council’s case is that it was entitled to consider s 70(1) matters holistically across the plan (that is considering other plan provisions alongside r 5.63) and was not required to make an assessment against each of the specified matters in relation to each particular rule; and
(c)the entire hearing record is relevant as it forms the evidence before the decision-maker when it made its decision that the CLWRP coupled with s 70 of the RMA.
Particulars – the principles
[48] Counsel recognised the principles relating to the sufficiency of pleadings are relatively settled and that the judgment of the Court of Appeal (delivered by McGechan J) in Price Waterhouse v Fortex Group Ltd (Fortex) sets out the overall approach that is applicable in this case.13
[49] In particular, the Court of Appeal in Fortex observed that a pleading “is intended to supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation”.14 The Court of Appeal, noting a pleading is an abbreviated summary “statement” of the basic facts said to give rise to a claim, observed that it is the level at which such abbreviation is to be set which causes ongoing difficulties. The Court observed there is (in relation to a plaintiff’s pleading):15
…eternal tension between Plaintiffs who wish to keep content as wide and general as possible, allowing maximum room to cover oversight and further developments, and Defendants who wish to narrow issues and impose restrictions to the maximum possible degree.
[50]The Court of Appeal concluded:16
What is required is an assessment based on the principle that a pleading must, in the individual circumstances of the case, state the issue and inform the opposite party of the case to be met.
[51] Beyond these overarching principles, there exists a sub-set of principles applicable to the denial of negative allegations such as ELI’s paragraphs [22] and [23] (set out above at [43]).
13 Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998.
14 At 19.
15 At 18.
16 At 19.
[52] The pleading of denials is first dealt with by r 5.48 of the Rules, which sets out requirements of a statement of defence. Rule 5.48(2) states:
(2) A denial of an allegation of fact in the statement of claim must not be evasive. Points must be answered in substance. If for example, it is alleged that the defendant received a sum of money, it is not sufficient to deny receipt of the particular amount. Rather, the defendant must deny receipt of that sum or any part of it, or set out how much was received. When a matter is alleged with circumstances it is not sufficient to deny it as alleged with those circumstances. In all cases a fair and substantial answer must be given.
[53] In this Court, Associate Judge Bell in a series of cases applied r 5.48(2).17 As the Associate Judge observed in Ash v Singh:18
In some cases, the defendants have denied a negative allegation by the plaintiff. That is evasive. If someone denies an allegation that something did not happen, it means that it did occur and accordingly they must state what it was and give details of it.
[54] There is one situation in which a bare denial is procedurally acceptable, namely where it is thereby intended to put the other party to proof of their case (which intention should be specifically pleaded).
[55] In ELI’s submission, the Council’s pleading falls into a second category, described in the English authorities as a “pregnant negative” a concept described by the (New Zealand) Court of Appeal as a pleading which conceals positive assertions.19 The English cases recognise that a bare denial of a negative pleading may be intended by the pleading party to set up an affirmative case, in which event the particulars of the affirmative case ought to be delivered.20
17 Fruit Shippers Ltd v Petrie [2020] NZHC 749 at [106]; Aivita Healthy New Zealand Ltd v Unipharm Healthy Manufacturing Co Ltd [2021] NZHC 1401 at [71]; Ash v Singh [2019] NZHC 2790 at [20].
18 Ash v Singh above n 17 at [20].
19 Pfizer Ireland Pharmaceuticals v Eli Lilly and Company CA8/05, 8 December 2005 at [41].
20 Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72; Duke’s Court Estates Ltd v Associated British Engineering Ltd [1948] 1 Ch. 458 at 463; Inland Revenue Commissioners v Jackson [1960] 1 WLR 873; Howard v Borneman (No 1) [1972] 1 WLR 863 (CA). For Australian commentary, see Bernard Cairns Australian Civil Procedure (12th ed, Thomson Reuters, NSW, 2020) at [6.310].
The Council’s intention in this proceeding
[56] From its pleadings, and from Ms de Latour’s submissions, the Council’s intention pursuant to its pleadings in this case is clear. The Council does not simply intend to put ELI to proof of its negative allegations. Rather the Council positively asserts it met the requirements of s 70 by two means, first by taking a holistic approach and, secondly, as pleaded at [22](e) of the ASoC (above at [43]), by having regard to the material before the Hearing Panel, “including without limitation” five particularised matters or material.
Council’s submissions
[57] In her written submissions, Ms de Latour expressly recorded the Council’s intention to defend the proceedings on two bases; namely:
(a)the Council was permitted to satisfy the requirements of s 70 in a holistic way and did; and
(b)the Council did consider the relevant matters in s 70 of the RMA (with regard to r 5.63).
[58] In relation to the specific consideration of relevant matters, Ms de Latour submitted there are documents that form part of the hearing record that “demonstrate this”, which the Council has referred to in its pleadings and correspondence with ELI. But, in her submissions, the quasi-judicial nature of the decision challenged means that the entire record before the decision-maker is relevant to that inquiry.
[59]Ms de Latour invoked a number of principles applying to particulars:21
(a)a request for further particulars may be resisted if the request goes beyond the scope of particulars and probes for evidence;
21 Citing Body Corporate 355492 v Queenstown Lakes District Council [2020] NZHC 2590 at [25], [26], [29].
(b)the standard of particularisation required varies with the facts of individual cases, but it is important not to overload the exercise, as over-pleading can obscure rather than clarify;
(c)whether a pleading is adequate will be influenced by, amongst other things, the nature of the case, the scope of pleadings, the issues in dispute and the stage the proceeding has reached.
[60] Ms de Latour submitted it was not simple in this case to particularise out all of the evidence relevant to the Hearing Panel’s consideration of s 70 matters. She submitted, in response to ELI’s notice for further particulars, the Council had specified in more detail and provided copies of the relevant documents where presentations and evidence before the Hearing Panel had addressed the requirements of s 70. She emphasised the relevance of the entire hearing record and submitted the Council’s pleaded reliance on a non-exhaustive list of documents is appropriate. This was so particularly having regard to the inherently linked nature of discharges that r 5.63 addresses (being diffuse discharges or discharges incidental to farming land use). In Ms de Latour’s submission, the particularisation of every document and piece of evidence before the Hearing Panel on s 70 issues would obscure rather than clarify the matters in contention between the parties.
[61] Finally, Ms de Latour referred to the onus of proof, which is on ELI as applicant. Ms de Latour submitted the particularisation sought by ELI goes beyond the scope of particulars and inappropriately probes the Council for evidence. She submits that it is still open to ELI to produce evidence consistent with its pleadings in the statement of claim. She asserts the fact that the majority of authorities in relation to applications for particulars stem from defendants seeking further particulars from a plaintiff, appropriately reflects that it is in the interests of justice that ELI as the party bringing the claim bears the burden and consequences of its claim (however inconvenient for ELI).
Discussion
[62] I view this as a straightforward case for the application of the principles relating to pregnant negatives identified in Ash v Singh and the other cases referred to
from [53] above. While it would not be correct to refer to the Council’s amended pleading as a bare denial, the pleading has the characteristics of what might be described as a qualified bare denial. As has been made clear by Ms de Latour, the Council intends not merely to put ELI to proof but rather to positively establish that r
5.63 came to be approved both through an “holistic approach” and on the basis the Council did specifically consider the relevant matters in s 70 of the RMA in relation to r 5.63.
[63] If the Council is going to assert at the substantive hearing that particular evidence was considered or effects assessed, ELI needs to be in a position to address through its evidence (if appropriate) and its submissions, what is to be asserted for the Council.
[64] In the course of argument, I gained the impression from Ms de Latour that the precise identification of matters so considered or assessed was a process that would require time and analysis having regard to the sheer volume of material that was before the Hearing Panel (and is the material pleaded in an omnibus fashion by the Council at [22](e) of the ASoC).
[65] The fact that those representing the Council may require further time to comprehensively identify particular documents or material is not a reason for not providing particulars now of what can be identified and is to be relied upon in the Council’s defence. Until the pleadings are closed the Council may as of right amend its particulars. Even after the close of pleadings the Council is likely to obtain leave to make further amendments ahead of the hearing where there is a reasonable explanation for certain particulars not being provided earlier.
[66] The Court of Appeal in Fortex (as quoted above at [49]) identified the tension created in litigation in part because one party wishes to keep content as wide and general as possible, allowing maximum room to cover oversight and further developments. To the extent it is a legitimate aspiration of the Council in this case, it can be accommodated through the Council’s right to amend its pleading should the need arise. What is reasonably required in the meantime is a pleading that is “sufficient to enable a reasonable degree of pre-trial briefing and preparation” as it
was put in Fortex. In this case that means the Council should by way of pleading identify the particular evidence within “all material before the Hearing Commissioners” that the Council asserts was considered in relation to r 5.63. The Council is of course entitled to also assert that it considered the material that was before the Hearing Panel “holistically” and in its entirety. That does not cut across the appropriateness of the Council pleading the specific matters that were considered if the Council at the substantive hearing is to assert specific matters were so considered.
Costs
[67] At the hearing, having regard to the fact there were cross-applications involved, I indicated to counsel I would reserve costs. Having now reached the decisions set out above, it is clear the applicant has been wholly successful and that costs must follow the event. Counsel have previously agreed this is a Category 2 proceeding. In those circumstances there will be a costs order in favour of the applicant.
Orders
[68]I order:
(a)the respondent’s application for directions as to service and publication is dismissed;
(b)there is an order that the respondent file and serve a more explicit pleading whereby the respondent pleads:
(i)the specific parts of documents and information on which it relied to satisfy itself of the absence of effects under s 70(1) of the Resource Management Act 1991 when involving r 5.63 in the Canterbury Land and Water Regional Plan;
(ii)where its specific reasons for being so satisfied are recorded; and
(iii)in the event the Council did not specifically consider s 70(1) with respect to r 5.63 or did not consider documents relating to that issue, or did not satisfy itself of the absence of effects under s 70(1) with respect to r 5.63, or did not provide reasons, a pleading that clearly identifies those facts.
(c)the respondent is to pay the applicant’s costs in relation to both applications, fixed on a 2B basis, together with the applicant’s reasonable disbursements, to be fixed by the Registrar.
Osborne J
Solicitors:
Lee Salmon Long, Auckland for Applicant Wynn Williams, Christchurch for Respondent
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