Otago Regional Council v Alliance Group Limited
[2020] NZHC 628
•24 March 2020
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2019-409-000175
[2020] NZHC 628
IN THE MATTER of an appeal pursuant to s 299 Resource Management Act 1991 AND
IN THE MATTER
of Environment Court Decision [2019] NZEnvC 42
BETWEEN
OTAGO REGIONAL COUNCIL
Appellant
AND
ALLIANCE GROUP LIMITED and others Respondents
Hearing: 16 March 2020 Appearances:
A C Hughes-Johnston QC as counsel assisting the Court A J Logan and T M Sefton for Appellant
P E M Walker and J E St John for Respondent OceanaGold (New Zealand) Ltd
Judgment:
24 March 2020
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 24 March 2020 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
OTAGO REGIONAL COUNCIL v ALLIANCE GROUP LIMITED [2020] NZHC 628 [24 March 2020]
[1] From time to time the Environment Court issues decisions which it describes as “interim” and/or “procedural”.1
[2] The Otago Regional Council (“the Council”) here appeals against a “procedural decision” of the Environment Court relating to the Council’s proposed Otago Regional Policy statement (“PORPS”). It asserts that a part of the decision contains errors of law and that two rulings made in it should be quashed. OceanaGold (New Zealand) Ltd (“OceanaGold”) appears as an interested party. It submits that the decision was not final and is therefore not appealable. In the event the Court is minded to allow the appeal, OceanaGold supports the Council’s position that the decision should be quashed and not remitted to the Environment Court.
[3] In the absence of a contradictor, Mr Hughes-Johnston QC was appointed to assist the Court on this appeal.
[4] This appeal raises issues as to whether a “procedural decision” of the Court was amenable to appeal under s 299 of the Resource Management Act 1991 (“the Act”). Two linked questions arise – was the procedural decision a final decision and is this appeal premature?
The procedural decision
[5] The procedural decision (“the decision”) was issued by Judge J R Jackson from Chambers on 15 March 2019.2 It has two parts. The first, under the heading “Procedural Decision”, consists of a series of directions, rulings and reservation of leave. The second part, headed “Reasons”, sets out the procedural background, then discusses unresolved issues, and concludes with a discussion of reservation of leave.
[6]The initial part containing the decision itself reads as follows:
A:Subject to Order [C], under section 279(1) and section 290 of the Resource Management Act I direct that unless an application is made
1 The power of the Environment Court to issue interim and procedural decisions has not been in issue on this appeal. It may be taken to be conferred by the broad powers under s 269 Resource Management Act 1991 and also as a matter of inherent power.
2 Alliance Group Ltd v Otago Regional Council [2019] NZEnvC 42 (“procedural decision”).
under [C] by 5 April 2019, the Otago Regional Council should by consent amend:
(1)Chapter 3 of the proposed Otago Regional Policy Statement as set out in Schedule “A” to this decision; and
(2)The “Implementation and Glossary” as set out in Schedule “B”.
B: I rule that:
(1)the parties have not responded to all the matters raised in the Minute of 31 August 2018; and
(2)prima facie the purpose of the Act is not achieved by the proposed Otago Regional Policy Statement when read as a whole with the partly operative RPS.
C:The court reserves leave for any party to apply to remedy any possible defects, incompleteness or uncertainty in the pORPS identified in the Minute of 31 August 2018 or raised in the Reasons below either by:
(1)amending proposed Chapter 3; or
(2)by directions under section 293 of the Act.
D: I direct that by Friday 29 March 2019 the Council must lodge a memorandum advising whether there are any outstanding matters in relation to the proposed Otago Regional Policy Statement.
[7] Judge Jackson in his “Reasons” section provided an explanation of the ruling at B(1) of the decision. His Honour stated:
[3] In a Minute dated 31 August 2018, I asked parties to consider (amongst other matters) issues in relation to objectives 3.1 and 3.2 as well as policies 3.1.7 and 3.2.12(a).
[4] The ORC has responded on some matters (and raised a further issue) in memoranda dated 28 September 2018, 19 November 2018 and 11 January 2019 but has simply omitted to act on others in the Minute of 31 August 2018.
[8] Judge Jackson, under a heading “Unresolved issues”, reached the following conclusions:
(a)The issue of the relationship between the chapters of the PORPS raised in the Court’s minute of 31 August 2018 had not been responded to.3
3 At [6].
The Court referred to a discussion at [23]–[24] of the 31 August 2018 minute, the correct reference being to [4]–[5].
(b)The parties did not appear to have answered the Court’s queries in relation to soil values and surf breaks.4
[9] At the conclusion of the procedural decision, the Court dealt with reservation of leave:
[16] I will reserve leave for any party to apply further if they wish to resolve any one or more of the issues raised above.
[17] I should add that I do not wish to be seen as encouraging (or discouraging) applications under the leave reserved in Order [C]. Even if parties consider after reading this decision that the RPS is incomplete, or uncertain (or possibly illegal) in parts, they may prefer to raise these issues in the future in more focused cases where the alleged defect is squarely before the relevant local authority or the courts. Indeed that may be a preferable course of action. However fairness to parties who have not had the time to think about these issues, or the expertise to guide them , requires that I reserve such leave.
Background leading to the decision
[10] The Council publicly notified its PORPS on 23 May 2015. The Council received submissions, conducted hearings and released its decisions on the submissions in October 2016. There followed numerous appeals to the Environment Court all of which were referred to mediation, with most resolved through mediation and negotiation. The Council made a number of consent orders.
[11] Two topics were not resolved through that process, namely ports and mining. The Court issued interim decisions on ports and mining respectively on 28 September 2018 and on 15 March 2019.5
[12] At the same time as the Environment Court issued its interim decision on mining, it issued the decision which is the subject of this appeal.6
4 At [10].
5 Port Otago Ltd v Otago Regional Council [2018] NZEnvC 183 (“interim decision – ports”);
OceanaGold (New Zealand) Ltd v Otago Regional Council [2019] NZEnvC 41 (“interim decision
– mining”).
6 Procedural decision, above n 2.
The subject-matter of the decision
[13] Chapter 3 of the PORPS is headed “Otago has high quality natural resources and ecosystems”.
[14] Chapter 3 and the methods and other miscellaneous provisions of the PORPS remained as issues. In July and August 2018, the parties presented consent documentation on those matters.
[15] On 31 August 2018, the Court issued a minute concerning chapter 3 which posed questions as to:
(a)the relationship between chapter 3 and the other chapters of the PORPS;
(b)the wording of policy 3.1.7 (soil values); and
(c)the wording of policy 3.2.12 (surf breaks).
[16] In the 31 August 2018 minute, the Court identified one question about the relationship between chapter 3 and the other chapters in PORPS,7 observed that the “drip-feeding of memoranda to the Court on different issues has made it difficult for the Court to get the big picture of the PORPS”, and questioned whether it should be signalled that chapter 3 contains most of the (carefully qualified) bottom lines in the PORPS.8 The Judge then questioned whether a point in relation to policy 4.3.4(2) (relating to regionally significant infrastructure) should be made clearly at the beginning of chapter 3 (if that was the Council’s intention) to avoid later arguments over whether the PORPS is incomplete or uncertain.9 Counsel on this appeal recognised that the Court’s concern in relation to incompleteness and uncertainty was
7 Wise Response Inc v Otago Regional Council EnvC Christchurch ENV-2016-CHC-106, 31 August 2018 at [1] (“31 August 2018 minute”).
8 At [2].
9 At [4]. I refrain from summarising the “Other issues” discussed in the minute as they are not directly relevant to this appeal.
referable to the Supreme Court’s decision in Environmental Defence Society Inc v New Zealand King Salmon Co Ltd.10 In the minute, Judge Jackson continued:11
My provisional view is that a new policy is not needed to express the Council’s intention (if I understand it correctly) but merely an introductory explanation.
[17] In the final paragraph of this minute, the Court directed the Council to report back to the Court with its proposed solutions for “these problems” or explanations as to why they are not problems.
[18] Mr Logan, for the Council, consulted with all parties to the appeals and filed his memorandum in response on 28 September 2018. In his memorandum he set out his submissions in response to the 31 August minute under the same three headings.
Other subject-matter
[19] In the meantime, it had come to the attention of the Council that objectives 3.1 and 3.2 (as amended) in the PORPS could be construed in a manner which was not consistent with the parties’ intentions. Mr Logan for the Council reported to the Court on 28 September 2018 that such issues had arisen. Following consultation with the parties, Mr Logan then filed a consent memorandum specifically on the subject of objectives 3.1 and 3.2.
[20] The Court on 3 December 2018 issued a further minute in response to the 19 November 2018 memorandum (but not referring to the 28 September 2018 memorandum).12 The Court proposed an adjusted amendment to objective 3.1 (“to show it is complete and less ambiguous than before”) and to address “a problem with the application of policy 5.4.8(2)” arising from a “confusing implied distinction between Objective 3.1 and 3.2”.
[21] The Court, by its minute, directed the Council to consult with the parties about these issues and to lodge a reporting memorandum as to solutions by 11 January 2019.
10 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [150].
11 31 August 2018 minute, above n 7, at [5].
12 Wise Response Inv v Otago Regional Council, above n 7.
[22] Mr Logan consulted with the parties and filed a memorandum in response on 11 January 2019. He explained the Council’s updated position on the interpretation of objective 3.1 and the wording of policy 5.4.8(2).
15 March 2019 decisions
[23] On 15 March 2019, the Environment Court issued its interim decision on mining.13 On the same day, the Court issued the procedural decision which is the subject of this appeal.
The Council’s appeal
[24] Initially, by its notice of appeal, the Council sought the quashing of orders A, B and C in the procedural decision. In the alternative, the Council sought the quashing of order B alone. By the notice of appeal, the Council requested that the decision be then remitted to the Environment Court for reconsideration.
[25] By the time of the hearing, the Council had limited the scope of the appeal, seeking now only the quashing of orders B(1) and (2). In line with the alternative position adopted by OceanaGold, the Council now asks, in the event that any ruling in the procedural decision is quashed, that there not be a remission of the underlying matter to the Environment Court.
Subsequent consent order
[26] The parties to the Environment Court appeals attended a judicial settlement conference on 27 February 2020. It resulted in the making of a consent order on 6 March 2020.14 The settlement conference took place in a context where the Council was known to still be pursuing its appeal in relation to order B of the procedural decision. In granting the consent order, Judge Jackson had to consider the introduction to chapter 3 of the PORPS. His Honour recorded:
[15] I am now inclined to accept that, at a stretch, the ORPS can be seen as according with Part 2 RMA. Ultimately in the absence of a dispute between the parties, any tentative view of the court about the relationship between
13 Interim decision – mining, above n 5.
14 Alliance Group Ltd v Otago Regional Council EnvC Christchurch 2016-CHC-112, 6 March 2020.
objectives and policies and especially on the maintenance of indigenous biodiversity are irrelevant. Accordingly, I accept that there is no need to add extra words to Chapter 3 Introduction.
Order B(2) – the prima facie ruling
The ruling
[27]At B(2) of the procedural decision, Judge Jackson ruled that:
prima facie the purpose of the Act is not achieved by the proposed Otago Regional Policy Statement when read as a whole with the partly operative RPS.
The Council’s submissions
[28] In his initial written synopsis, Mr Logan did not concentrate submissions on the interpretation of the ruling at B(2). Rather, he characterised the ruling at order B as final, with no provision made for the parties to re-open either order B(1) or (2).
[29] When he came to file a reply synopsis (in light of the submissions of Mrs Walker and Mr Hughes-Johnston), Mr Logan made detailed submissions as to why order B is to be viewed as “final”.
[30] First, Mr Logan invoked s 295 of the Act which states that a decision of the Environment Court is final unless it is reheard under s 294 or appealed under s 299 (the latter section providing for appeals to the High Court on questions of law).
[31] Secondly, Mr Logan referred to authority as to when a decision is final so as to be appealable. Mr Logan referred to the discussion of interim decisions by Wylie J in Mawhinney v Auckland Council, where his Honour stated:15
[97] In my view, no “bright line” rule is possible. Each interim decision must be considered in its terms. If an interim decision finally decides a substantive issue between the parties, then there is a decision in respect of that issue in terms of s 299, notwithstanding that some other issue may be left for further consideration. If an interim decision does not finally decide a substantive issue, and leaves it for the parties to return to the Court, then there is no decision in terms of s 299. If the parties are in any doubt, then, ex abundante cautela, they should file an appeal and seek to adjourn any hearing of the appeal until the final decision is delivered.
15 Mawhinney v Auckland Council (2011) 16 ELRNZ 608 (HC).
Mr Logan referred also to another decision of this Court, in Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council, in which a test in relation to “interim decisions” formulated by the Environment Court in Gardez Investments Ltd v Queenstown Lakes District Council was adopted.16
[32] Mr Logan summarised the authorities as requiring an evaluation of the relevant Environment Court judgment to determine whether there was any matter which was susceptible to an appeal, notwithstanding labels such as “interim” and “procedural”.17
[33] Mr Logan then turned to the structure and content of the procedural decision, which he described as decisive. In particular, he made the following submission:
16.1Order [A] directed the appellant to amend Chapter 3 and other parts of the RPS set out in the Schedules to the decision.
16.2Order [A] is expressly “Subject to Order [C]”.
16.3Order [A] became final unless an application was made under Order
[C] by 5 April 2019.
16.4Order [C] reserved leave for any party to apply to remedy any possible defects, incompleteness or uncertainty in the pORPS identified in the Minute of 31 August 2018 or raised in the “Reasons below” either by amending proposed Chapter 3 or by directions under section 293 of the Act.
16.5The reasons relate to the content of Chapter 3. Any application for directions under section 293 of the Act is limited accordingly.
16.6Order [B] is prefaced by the words “I rule that”. That is plainly an elevation from a step in the Court’s reasoning to a determination.
16.7Order [B] is not subject to Order [C].
16.8There is no mechanism in the decision to reopen Orders [B](1) and [B](2).
16.9While the words “prima facie” in Order [B](2) create a presumption that the RPS18 fails to give effect to the purpose of the Act, the decision provides no ability to rebut that presumption.
16 Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council [2013] NZHC 518 at [33]–[34]; Gardez Investments Ltd v Queenstown Lakes District Council EnvC Christchurch C95/05 1 July 2005 at [40].
17 Citing also Fox v Christchurch City Council HC Christchurch CIV-2008-409-898, 5 December 2008 at [51].
18 Both the proposed Regional Policy Statement and the operative Regional Policy Statement.
16.10Nor is there anything allowing the Environment Court to recall the declaratory statement in Order [B](1).
16.11Order [B](2) goes to the RPS “as a whole”.
16.12Orders [A] and [C] apply only to Chapter 3 and some miscellaneous provisions. It is clear from the decision (and the earlier Minute) that the emphasis is on Chapter 3, not the miscellaneous provisions. The reservation of leave in Order [C] is effectively limited to Chapter 3.
16.13Exercising the leave reserved in Order [C] could only modify, at most, a subset of the provisions to which Order [B](2) applies.
16.14If the process provided for in Order [C] were not undertaken, then all orders would be final.
16.15If the process in Order [C] is undertaken, on its completion Orders [B](1) and [B](2) would still remain in full force and effect. That is in fact what has occurred.
[34] In conclusion, Mr Logan submitted that both orders B(1) and B(2) are “final determinations”. He submitted that the Court must reject the submission of Mr Hughes-Johnston that orders B(2) (and also B(1)) were open to reconsideration by the Environment Court.
OceanaGold’s submissions
[35] Mrs Walker noted the absence of discussion in Mr Logan’s initial submissions as to the significance of the use in order B(2) of the expression “prima facie”.
[36] Mrs Walker invited the Court to apply as the apposite meaning of “prima facie” (as used by Judge Jackson in order B(2)) the following from Black’s Law Dictionary:19
prima facie, adv. [Latin] (15c) At first sight; on first appearance but subject to further evidence or information <the agreement is prima facie valid>.
[37] Mrs Walker submitted that (contrary to Mr Logan’s submission) the reservation of leave under the procedural decision had left open a further process whereby new material could be presented to the Court to address its concerns and to thereby ensure that the PORPS did achieve the purpose of the Act. Mrs Walker submitted that the express reservation in order C (referring to matters “raised in the Reasons below”) and the discussion at paragraphs [15]–[16] within the Reasons
19 Bryan A Garner (ed) Black’s Law Dictionary (10th ed, Thomson Reuters, 2014) at 1382.
indicated an anticipation on the part of the Court of the process which might be followed. Mrs Walker noted particularly the paragraph [16] reservation of “leave for any party to apply further if they wish to resolve any one or more of the issues raised above”.
Submissions of counsel assisting the Court
[38] Mr Hughes-Johnston, pursuant to the terms of his appointment, provided a detailed submission in relation to what he termed “intermediary findings”. I will simply be summarising his comprehensive submissions which I find to identify the correct outcome in relation to order B(2).
[39] Mr Hughes-Johnston referred to Judge Jackson’s earlier decision in Gardez Investments Ltd v Queenstown Lakes District Council.20 There his Honour identified that the labelling of a decision as “interim” is not determinative.21 His Honour observed that the converse also applies: “a decision may be headed simply “Decision” yet leave issues undecided”.22 His Honour went on to identify the test, stating:23
The test is whether, in substance, the “interim” decision:
(a)decides the whole proceedings or, at least, one or more particular issues conclusively (in which case the Court is functus officio on each such issue); or
(b)leaves the matter open for parties to return to the Court with further submissions and/or evidence notwithstanding the views expressed at the interim stage: Marlborough Aquaculture Ltd v Ministry of Fisheries.24
[40] Mr Hughes-Johnston referred also to the Federated Farmers case in which Gendall J adopted the Gardez Investments test.25 Significantly, Gendall J observed in the course of that judgment:26
20 Gardez Investments Ltd v Queenstown Lakes District Council, above n 16.
21 At [40], citing Waitakere Ranges Protection Society Inc v Waitakere City Council EnvC Auckland A220/03, 16 December 2003.
22 At [40].
23 At [40].
24 Marlborough Aquaculture Ltd v Ministry of Fisheries [2003] NZAR 362 (HC) at [28].
25 Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council, above n 16.
26 At [44].
… to find that the judgment under appeal is in fact final in relevant respects would be to conclude that the court has really closed its mind to all argument on those points even where it has expressly stated that its mind remains open.
[41] Finally, Mr Hughes-Johnston referred to Motiti Avocados Ltd v Minister of Local Government.27 In that case, the High Court had to determine whether the Environment Court had made a final determination that a management plan was to be integrated into the proposed Motiti Plan. Andrews J rejected the contention that the Environment Court had made a final determination, observing:28
While there is some inconsistency, I have concluded that, overall, the language used by the Court is more consistent with a preliminary determination than with a final determination.
[42] Mr Hughes-Johnston submitted, in conclusion, that these decisions illustrate that a decision will not be regarded as final, and therefore appealable, where a tentative view has been expressed, anticipating further submissions, or the finding is not material to the outcome.
[43] Mr Hughes-Johnston then referred specifically to the language and structure of the procedural decision in this case.
[44] He supported Mrs Walker’s submission that the definition of “prima facie” in Black’s Law Dictionary was applicable in this case. He submitted also that where that particular definition referred to a conclusion being “subject to further evidence or information”, it is equally the case that a prima facie conclusion may be subject to further consideration or reflection on the part of the body charged with making the decision.
[45] Turning to the Environment Court’s focus in the procedural decision on chapter 3 of the PORPS, Mr Hughes-Johnston (correctly) identified the Court’s earlier concern to get the “big picture” while the RPS was being developed “piecemeal”. Mr Hughes- Johnston submitted that it is apparent from tracking through the process that Judge Jackson anticipated that the Court’s concerns might be fixed by reference to chapter 3, through amendment (such as an additional introduction) or otherwise.
27 Motiti Avocados Ltd v Minister of Local Government [2013] NZHC 1268.
28 At [57].
Subsequent events
[46] In the period following the procedural decision, the parties and the Court did engage with the concerns identified by the Court in the procedural decision (as well as other matters). That included at the judicial settlement conference in February 2020. This led to the consent order of 6 March 2020. As quoted above in [26], Judge Jackson was led in the course of that process to accept (albeit “at a stretch”) that the PORPS could be seen as according with Pt 2 of the Act. In other words, the Judge had reflected on the conclusion contained in order B(2).
Discussion
[47] I find there to be no doubt as to the correct construction of the Environment Court’s ruling in B(2) of the procedural decision. I recognise that the Court’s use of the term “prima facie”, which in some specific legal contexts conveys the sense that it is for another party to rebut the conclusion involved, may have led the Council or its advisors to fear that the Court had stated a conclusion which would now apply to this PORPS once and for all. But that is clearly not the sense in which Judge Jackson was using the term “prima facie” in order B(2). What the Judge was recording was a tentative conclusion or, as articulated in Black’s Law Dictionary, a view “at first sight” or “on first appearance”.
[48] The Environment Court’s discussion as to the reservation of leave (particularly in paragraphs [14]–[15] of the procedural decision) cannot appropriately be read down in the way that Mr Logan would analyse it. It is consistent with the Court’s expression of a tentative conclusion that the Court’s other references (including the lodging of a memorandum to deal with “any outstanding matters in relation to the proposed Otago Regional Policy statement”) extended a broad invitation to the parties to submit further on the matter.
[49] It is unnecessary in these circumstances that I bring into account in construing order B(2) the fact that Judge Jackson himself has since considered it appropriate to modify the conclusion reached on a prima facie basis. I am not persuaded by Mr Logan’s submission that it would be inappropriate to have regard to the Environment Court’s receiving further views on the matters raised and reflecting upon them further
in the processes that followed the procedural decisions. Arguably, the significant relevance of the subsequent (6 March 2020) consent order discussion is a practical one in relation to the concerns which may have motivated the Council to pursue this appeal
– what the Court’s statement at [15] of the 6 March 2020 consent order indicates is that the prima facie conclusion in order B(2) of the (15 March 2019) procedural decision no longer stands. It has been overtaken by the subsequent acceptance by the Environment Court that there was no need to add extra words to the chapter 3 Introduction.
Order B(1) – non-responsive parties
The ruling
[50]In order B(1) of the procedural decision, it is recorded:
B: I rule that:
(1)the parties have not responded to all the matters raised in the Minute of 31 August 2018;
Submissions
[51] Mr Logan in his initial synopsis did not dwell upon order B(1). His submission was effectively an omnibus submission that order B(1) was final, and appealable for errors of law.
[52] That said, Mr Logan recognised authorities which establish that any error of law must materially affect the Court’s decision before this Court will grant relief.29
[53] For OceanaGold, Mrs Walker restricted herself to submissions in relation to order B(2).
[54] It therefore fell to Mr Hughes-Johnston to present submissions in the role of contradictor. Mr Hughes-Johnston noted, upon the basis of authority including that referred to by Mr Logan himself, that the right of appeal is against a decision, not a
29 Countdown Properties (Northland) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153, adopting Royal Forest and Bird Protection Society Inc v W A Habgood Ltd (1987) 12 NZTPA 76 (HC) at [81]–[82].
legal finding of itself. In addition to the authorities referred to by Mr Logan, Mr Hughes-Johnston referred to the judgment of Gault J (delivering the decision of the Court of Appeal) in Port Nelson Ltd v Commerce Commission, where his Honour stated:30
To the extent to which these findings are not material to orders made and appealed against they are not appealable: Lake v Lake [1955] 2 All ER 538, Meridian Global Funds Management [Asia] Ltd v The Securities Commission (Unreported CA 4/92 judgment, 14 September 1992).
[55] Mr Hughes-Johnston also observed that the mere fact that a decision or judgment contains adverse findings does not dictate that there is necessarily a remedy on appeal. This was recognised by the Court of Appeal in the Meridian Global Funds case (referred to in the preceding paragraph) where Gault J observed:31
This is a situation in which a party against which an adverse finding has been made is anxious to challenge it at an early date. That is understandable. It is not the first case however in which a party has been faced with adverse findings against which there is no immediate remedy on appeal: see Lake v Lake …
[56] Including by reference to the cited English decision in Lake v Lake, Mr Hughes-Johnston submitted that the question which arises in relation to order B(1) is whether order B(1) was an obiter dictum or represented an intermediary finding.32 The Court of Appeal’s repeated citation of Lake v Lake clearly establishes the principle that intermediary findings are not appealable.
[57] Parties will occasionally consider statements within a judgment to be unjustified or otherwise unacceptable. That was the position of Port Nelson Ltd in the Port Nelson case, in which the appellant unsuccessfully challenged findings in relation to its managing director and in relation to the influence of local authority representatives on its Board of Directors.33 But, as applied in the Port Nelson case, an appeal court is not an available forum for airing disagreement with and challenging such findings, in the absence of their material contribution to an appealable finding.
30 Port Nelson Ltd v Commerce Commission [1996] 3 NZLR 554 (CA) at 579.
31 Meridian Global Funds Management Asia Ltd v Securities Commission CA4/92, 14 September 1992.
32 Lake v Lake [1955] 2 All ER 538.
33 Port Nelson Ltd v Commerce Commission, above n 30, at 579.
[58] In his reply synopsis, Mr Logan did not challenge Mr Hughes-Johnston’s exposition of the principle relating to intermediary findings so far as it applies to order B(1). Instead, appearing to accept that the principle is applicable here, Mr Logan submitted that:
Notwithstanding the absence of a final decision to appeal, the High Court has nonetheless embarked on a consideration of the merits on occasions where it considers there is good reason to.
[59] Mr Logan then referred to the Lyttelton Port Company case, where the High Court found it did not have jurisdiction to entertain an appeal in relation to obiter dicta.34 Mr Logan observed that the Court considered it appropriate in that case to consider the merits and to make “observations”. Mr Logan invited the Court to comment on the status and effect of orders B(1) and B(2) if the Court finds (as I do) that there is in this case no appealable decision.
Discussion
[60] The Environment Court’s ruling at B(1) is not susceptible to an appeal. It is sufficient to categorise it as akin to an intermediary finding. On a different analysis, it might be considered even less than an intermediary finding as the ruling in B(1) is not a statement substantively linked to the conclusion at B(2) as part of a chain of logic leading to another conclusion. Rather, it is simply a statement of the Court’s view as to the extent or adequacy of submissions it received in response to a minute.
[61] I will not take up Mr Logan’s invitation to make “observations” of the nature made in the Lyttelton Port Company case – in that case there was an obvious advantage in that the High Court had heard submissions concerning what it ultimately found to be obiter findings to express a view as to some of the details of the resource management issues involved. Such observations may have assisted the Environment Court in the future, particularly in interpreting a previous decision of that Court.
[62] Here, there will be no such benefit from this Court making observations in relation to the correctness of the statement in order B(1).
34 Lyttelton Port Company Ltd v Canterbury Regional Council [2002] NZRMA 102 (HC) at [64].
[63] In relation to order B(1), I add only these comments. It was evidently Judge Jackson’s view that the parties (that is, not only the Council but all parties to the appeals) had not responded to all the matters raised in the 31 August 2018 minute (my emphasis). I do not take order B(1) to imply that either the lawyers or the parties had not intended to comprehensively respond to the minute of 31 August 2018. Order B(1) is a far more limited comment reflecting the Judge’s view that one or more of the matters raised in the 31 August 2018 minute had not been responded to.
Outcome
[64] The Council had already withdrawn those aspects of its appeal which went beyond orders B(1) and (2).
[65]The appeal in relation to orders B(1) and (2) will be dismissed.
Costs
[66] In reserving my judgment, I invited counsel to address me to the extent possible in relation to costs.
[67] Responsibly, both Mr Logan and Mrs Walker submitted that this would be an appropriate case in which, as between parties, there should be no order as to costs or disbursements. That will be the order made.
[68] That leaves the Court’s discretion under s 178 Senior Courts Act 2016 in relation to the costs of counsel assisting the Court. My preliminary view is that there should be an order under s 178(2)(b) that the Council pay the costs incurred in the appointment of Mr Hughes-Johnston to assist the Court. It was the Council which pursued this appeal. The appeal has been dismissed for reasons which on material points adopt the submissions of counsel assisting. Directions will be made below as to resolution of costs.
Orders
[69]I order:
(a)The appeal is dismissed.
(b)As between the Council and other parties who entered appearances, there is no order as to the costs and disbursements of the appeal.
(c)The matter of costs under s 178 Senior Courts Act 2016 is reserved. In the event that the Council does not file within 10 working days a memorandum as to the costs and disbursements of counsel assisting the Court, the order of the Court (without further direction) will be that the Council pay the costs and disbursements of such counsel as approved by the Registrar. In the event that such a memorandum is filed, the Court will then deal with the costs and disbursements on the papers.
(d)The Registrar is directed within five working days to provide to counsel for the Council the detailed statement of account of the fees and disbursements of counsel assisting, as approved for payment by the Registrar.
Osborne J
Solicitors:
Ross Dowling Marquet Griffin, Dunedin for Appellant
Anderson Lloyd, Dunedin for Respondent OceanaGold (New Zealand) Ltd
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