Foodstuffs South Island Ltd v Queenstown Lakes District Council
[2013] NZCA 458
•4 October 2013 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA647/2013 [2013] NZCA 458 |
| BETWEEN | FOODSTUFFS SOUTH ISLAND LIMITED |
| SHOTOVER PARK LIMITED AND REMARKABLES PARK LIMITED Second Applicants |
| AND | QUEENSTOWN LAKES DISTRICT COUNCIL |
| QUEENSTOWN CENTRAL LIMITED Second Respondent |
| Court: | Ellen France, Stevens and White JJ |
Counsel: | N H Soper and A C Ritchie for First Applicant |
Judgment: (On the papers) | 4 October 2013 at 10.30 am |
JUDGMENT OF THE COURT
AUnder the transitional provisions of the Criminal Procedure Act 2011, this proceeding must continue under s 308(1) of the Resource Management Act 1991 as it was before 1 July 2013.
BThe applications for leave to appeal should therefore be made in the first instance to the High Court.
CCosts are reserved.
____________________________________________________________________
REASONS OF THE COURT
(Given by White J)
The parties have agreed that this Court should determine on the papers whether the applications for leave to appeal to this Court by Foodstuffs South Island Ltd, Shotover Park Ltd and Remarkables Park Ltd (the applicants) should be made in the first instance to the High Court or the Court of Appeal. The decision being appealed against is the decision of Fogarty J in the High Court delivered on 5 July 2013[1] dismissing the appeals on questions of law under s 299 of the Resource Management Act 1991 (RMA) arising from a decision of the Environment Court.[2]
[1]Shotover Park Ltd v Queenstown Lakes District Council [2013] NZHC 1712.
[2]Queenstown Airport Corp Ltd v Queenstown District Lakes Council [2013] NZEnvC 14.
The question arises because the procedure for appeals to this Court under the RMA has been changed by the Criminal Procedure Act 2011 (CPA) as from 1 July 2013.[3] Prior to the change, a party seeking leave to appeal to this Court was required by s 308(1) of the RMA, which incorporated the provisions of s 144 of the Summary Proceedings Act 1957, to seek leave to appeal first from the High Court and then, if leave was declined, special leave from this Court.
[3]Criminal Procedure Act Commencement Order 2013, cl 2. See Criminal Procedure Act 2011 ss 2(2) and 394.
Section 308(1) of the RMA has been amended by s 413 of the CPA and leave to appeal may now be sought only from this Court.[4] The time for seeking leave has been extended from 21 calendar days[5] to 20 working days.[6] To obtain leave under the Summary Proceedings Act it is necessary to establish a question of law of general or public importance or other reason requiring this Court’s consideration, while under the CPA it is necessary to establish a matter of general or public importance or likelihood of a miscarriage of justice if leave is not granted.[7] Some 17 civil appeal provisions also incorporated the provisions of s 144 of the Summary Proceedings Act and have now been amended to incorporate the provisions of the CPA in the same terms as s 308(1).[8]
[4]Criminal Procedure Act, s 303.
[5]Summary Proceedings Act 1957, s 144(3).
[6]Criminal Procedure Act, s 305(2).
[7]Summary Proceedings Act, s 144(2) and Criminal Procedure Act, s 303(2)(a) and (b).
[8]See Criminal Procedure Act, s 413 and sch 3, pt 1.
The applicants submit that under the relevant transitional provisions the new procedure applies only to proceedings commenced after 1 July 2013. As these proceedings were commenced in the Environment Court before that date, the applications for leave should be made to the High Court in the first instance.
The respondents, Queenstown Lakes District Council and Queenstown Central Ltd, submit, however, that the new procedure now applies to all proceedings, regardless of when they were commenced and that the applications for leave should therefore be made to this Court. They submit that the transitional provisions apply only to criminal appeals and not to civil appeals under s 308(1) of the RMA.
Having considered the submissions for the parties, we are satisfied that the transitional provisions do apply to all appeals under s 308(1) of the RMA and that therefore the applicants must first seek leave to appeal from the High Court.
The starting point is s 308 of the RMA, which now provides:
308 Appeals to the Court of Appeal
(1)Subpart 8 of Part 6 of the Criminal Procedure Act 2011 applies as far as applicable with the necessary modifications to a decision of the High Court under section 299 as if the decision had been made under section 300 of that Act.
(2)Subsection (1) does not apply to appeals against a determination of the High Court under section 299 if that determination related to a decision of the Environment Court under section 149U. Instead, section 149V(3) to (7) apply.
There is no dispute that in terms of this provision:
(a)subject to s 308(2), appeals to this Court against High Court decisions under s 299 of the RMA (that is appeals from the Environment Court to the High Court on questions of law) are now governed by subpt 8 of pt 6 of the CPA as if the High Court decision had been made under s 300 of the CPA; and
(b)s 308(2) of the RMA creates a separate regime for appeals from Environment Court decisions under s 149U of the RMA on ministerial referrals under s 149T which are made to the Supreme Court and not to this Court: s 149V(3)–(7).
The cross-references in s 308(1) to subpt 8 of pt 6 of the CPA and s 300, in particular the fact that those sections apply “as far as applicable with the necessary modifications”, mean that:
(a)an appeal from a decision of the Environment Court under s 299 of the RMA to the High Court on a question of law is to be treated as a first appeal to the High Court under s 300 of the CPA; and
(b)the provisions of subpt 8 of pt 6 of the CPA, namely, s 303 (right of appeal against determination of first appeal court), s 304 (second appeal courts), s 305 (how to commence second appeal), s 306 (second appeal court to determine appeal) and s 307 (orders, etc, on successful second appeal) will be applicable.
It is s 303 of the CPA that imposes the new leave requirement:
(1)A party to a first appeal under this subpart may, with the leave of the second appeal court, appeal under this subpart to that court against the determination of the first appeal.
(2)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
If there were no other relevant provisions in the CPA, we would agree with the respondents that in terms of these new provisions it would be necessary for the applicants to seek leave to appeal from this Court and not from the High Court. But these are not the only relevant provisions in the CPA. As is common in statutes introducing new procedures, the CPA contains in pt 8 a series of transitional provisions, including a series of specific provisions under the subheading:
Transitional and savings provisions in relation to provisions brought into force under s 2(2) or 2(3).
Under s 2(2) of the CPA, subpt 8 of pt 6, including s 303, came into force on 1 July 2013 by virtue of the Criminal Procedure Act Commencement Order 2013. The series of specific provisions in pt 8 of the CPA therefore apply to it. In this case the subheading referred to above, which is relevant to ascertaining the meaning of the legislation,[9] makes it clear that Parliament intended the specific transitional provisions to apply generally to the provisions in subpt 8 of pt 6, brought into force under s 2(2), whether they apply in respect of criminal or civil proceedings.
[9]Interpretation Act 1999, s 5(3).
For present purposes the relevant transitional provision is s 397, which provides:
397 Proceedings commenced before commencement date
(1) This section applies to proceedings—
(a)commenced before the commencement date; and
(b)not finally determined (including any rehearing, retrial, or appeal) before the commencement date.
(2)Subject to sections 399 and 400, and to the other provisions of this subpart, the proceeding must continue in accordance with the law as it was before the commencement date.
(3)For the purposes of subsection (1), a proceeding has commenced if—
(a)an information has been laid in accordance with the Summary Proceedings Act 1957 in respect of an offence:
(b)a complaint has been made in accordance with the Summary Proceedings Act 1957:
(c)particulars of a charge have been set out in a charge sheet under section 12(2) of the Summary Proceedings Act 1957:
(d)a person has been served with a summons issued under section 19A of the Summary Proceedings Act 1957 but no information had yet been laid in respect of the offence:
(e)a person has been served with a summons under section 19B of the Summary Proceedings Act 1957 but no information had yet been laid in respect of the offence:
(f)a notice of prosecution has been filed under section 20A(2) of the Summary Proceedings Act 1957 in respect of a minor offence:
(g)a notice of hearing has been filed under section 21(8) of the Summary Proceedings Act 1957:
(h)an indictment has been filed under section 345(3) of the Crimes Act 1961 in respect of the offence.
On its face s 397(1) applies in this case because:
(a)The Environment Court proceedings (which involved appeals against the Queenstown Lakes District Council’s October 2009 decision on its proposed change to its District Plan)[10] were commenced in 2009 which was before “the commencement date” of subpt 8 of pt 6 (as defined in s 394 and appointed under s 2(2) of the CPA).
(b)The appeal to this Court in those proceedings has not been finally determined.
(c)Section 399 (absconding defendants), s 400 (defendants and proceedings to be tried together) and the other provisions of subpt 8 are inapplicable.
(d)Subparagraph (3) is inapplicable.
(e)The appeal to this Court must therefore “continue in accordance with the law as it was before the commencement date”.
[10]The appeals were brought by 11 submitters who made submissions on the proposed changes after they were publicly notified in 2007.
The law as it was before the commencement date includes the requirement for applicants seeking leave to appeal to this Court to obtain leave from the High Court under s 308(1) of the RMA.
The view that s 397 should apply in the present case is supported by the following considerations:
(a)A transitional provision of this nature is consistent with the general principle of statutory interpretation that proceedings should continue to be determined in accordance with the law as it existed when they commenced.[11]
(b)It would be surprising if s 397 was limited in its application to criminal proceedings only, as that would mean there were different appeal regimes in force for criminal appeals, which would continue under the pre-1 July 2013 law, and RMA civil appeals and other civil appeals which would be determined under the post‑1 July 2013 law.
(c)There is therefore no good reason to read subss (1) and (2) of s 397 as being qualified in some way by subs (3). The latter subsection is needed to provide when a criminal proceeding is to be taken as having commenced. The need for subs (3) does not mean that subs (1) and (2) should be read down as applying only to criminal proceedings.
(d)It is clear from s 308(1) of the RMA that appeals from the High Court to this Court against decisions in appeals from the Environment Court under s 299 of the RMA are to be treated as appeal proceedings under the CPA, as are other civil appeals under the CPA.[12]
[11]Interpretation Act, ss 7 and 18 and FAR Bennion Bennion on Statutory Interpretation: A Code (5th ed, LexisNexis, London, 2008) at 315–320 and JF Burrows and RI Carter Statute Law in New Zealand (4th ed, Wellington, LexisNexis, 2009) at 590–591 and 619–622.
[12]Criminal Procedure Act, s 304(b). See above at n 8.
We therefore do not accept the submissions for the respondents that s 397 should be limited in its application to criminal proceedings only. Nor do we agree that there is any particular difficulty in determining when Environment Court proceedings, which are the subject of the first and second appeals referred to in s 303 of the CPA, “commenced”. That question needs to be approached in a pragmatic and commonsense way. Here the Environment Court proceedings commenced in 2009 with the lodging of the applicants’ appeals with the Environment Court.[13] In any proposed Environment Court appeal it should be a relatively straightforward matter to identify the beginning of a “proceeding” by the filing of the first documents in the Environment Court. While we have not considered each provision which incorporates subpt 8 of pt 6, our view is that similar practical definitions of the commencement of the relevant proceeding should be possible in each statutory context. Adopting this approach to the interpretation of these provisions has the advantage of implementing their purpose and giving them practical effect.[14]
[13]In accordance with sch 1, cl 14 of the Resource Management Act.
[14]Interpretation Act, s 5; Northern Milk Ltd v Northland Milk Vendors Association Inc [1988] 1 NZLR 537 (CA) and Commissioner of Inland Revenue v Alcan New Zealand Ltd [1994] 3 NZLR 439 (CA).
Finally, we do not accept the submission for the respondents that a different conclusion is required by the common law presumption that, absent a contrary intention, statutes regulating procedure apply to pending as well as future proceedings.[15] Here it is clear from our interpretation of the relevant statutory provisions that Parliament did intend s 397 to apply to both criminal and RMA civil appeals.
Result
[15]Bennion, above n 11, at 320 and Burrows and Carter, above n 11, at 594.
Under the transitional provisions of the Criminal Procedure Act 2011, this proceeding must continue under s 308(1) of the Resource Management Act as it was before 1 July 2013.
The applications for leave to appeal should therefore be made in the first instance to the High Court.
As we did not hear from the parties on the question of costs, they are reserved.
Solicitors:
Anderson Lloyd, Queenstown for First Applicant
Brookfields, Auckland for Second Applicants
Macalister Todd Phillips, Queenstown for First Respondent
Burton & Co, Auckland for Second Respondent
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