Pascoe v Environment Court
[2025] NZHC 1784
•2 July 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2024-443-8
[2025] NZHC 1784
UNDER the Judicial Review Procedure Act 2016 BETWEEN
TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE
Applicants
AND
THE ENVIRONMENT COURT
First Respondent
MINISTER FOR LAND INFORMATION
Second Respondent
Hearing: 15-17 July 2024 (further memoranda received after the hearing, most recently dated 18 December 2024) Appearances:
Applicants in person (assisted by M Gibbs with R Gibbs in attendance)
S R Hiha for First Respondent (appearance excused) K F Gaskell and E S Harris for Second Respondent
Judgment:
2 July 2025
JUDGMENT OF McQUEEN J
[Judicial Review — Environment Court]
PASCOE AND PASCOE v THE ENVIRONMENT COURT [2025] NZHC 1784 [2 July 2025]
Table of Contents
Para Nos
Introduction [1]
Background [6]
Reviewability of the Environment Court’s exercise of statutory powers [32]
The application for judicial review [42]
Preliminary matters [45]
Approach to discussion of causes of action [48]
Environment Court’s refusal to grant adjournments and failure to provide written reasons [49]
First and eighth causes of action [49]
Discussion [51]
Remaining causes of action [58]
Content of Minutes dated 21, 22 and 23 November 2023 [59]
Allegations in relation to each Minute [62]
Environment Court’s directions and statements about the role of counsel for the Pascoes [67]
Second, fourth, fifth and seventh causes of action [67]
Discussion [69]
Environment Court’s directions about attendance of support persons at
mediation [77]
Third cause of action [77]
Discussion [79]
Environment Court’s statement about outside interference with counsel [83]
Sixth cause of action [83]
Discussion [86]
Environment Court’s direction about persons entitled to communicate with the Court [89]
Ninth cause of action [89]
Discussion [91]
Conclusion and result [95]
Costs [97]
Introduction
[1] Mr and Mrs Pascoe (the Pascoes) objected to the compulsory acquisition of part of their land by the Minister for Land Information (the Minister) for a roading project, known as Te Ara o Te Ata | Mt Messenger Bypass (the Project), to improve the highway connection between Taranaki and Waikato under the Public Works Act 1981 (PWA). The Environment Court inquired into the objection and determined that the taking of the Pascoes’ land was fair, sound and reasonably necessary for achieving the Minister’s objectives.1
[2] The Pascoes apply to judicially review procedural matters and statements made by the Environment Court in the lead up to the hearing of their objection. They seek declarations that the Environment Court acted unfairly and outside its jurisdiction, and failed to observe the New Zealand Bill of Rights Act 1990 and the principles of natural justice. They also seek orders and directions requiring the Environment Court to revisit their objection to the taking of their land. They do so under nine causes of action, alleging in broad terms that the Environment Court did not give them a fair hearing in the hearing of their objection.
[3]The first respondent, the Environment Court, abides the decision of the Court.
[4] The second respondent, the Minister, says that the application for judicial review should be dismissed because the matters under challenge are procedural or administrative in nature and are not therefore “statutory powers of decisions” affecting the rights or liabilities of the Pascoes so as to be amenable to judicial review. Some allegations are factually inaccurate. The Minister says that in any event, even if the matters under challenge can be reviewed, there is no error on the part of the Environment Court.
1 Pascoe v Minister for Land Information [2024] NZEnvC 101 (Environment Court Objection Decision).
[5] I conclude that as no decision that is reviewable has been identified by the Pascoes and/or there is no error in the Environment Court’s exercise of its statutory powers, the application for judicial review must be dismissed.2
Background
[6] There is an extensive context to this proceeding.3 Here, I set out only the relevant background as necessary for this judicial review.
[7] On 31 August 2021, the Pascoes filed an objection (under s 23(3) of the PWA) in the Environment Court to the Minister’s notice of intention to take part of their land for the Project (the Objection Proceeding).
[8] On 8 September 2021, the Pascoes filed an application for judicial review of the Minister’s decision to issue the s 23 Notice (the Original JR Application).4
[9] Relevantly, on 31 May 2022, the Environment Court issued timetabling directions for the parties to file evidence in the Objection Proceeding and for a five- day hearing to be set down on the first available date after 13 March 2023. On 30 November 2022, the Environment Court granted the Minister’s request for a short extension, moving the due date for the filing of his evidence to 9 December 2022. The Minister then filed and served their evidence in the Objection Proceeding on 9 December 2022. The Objection Proceeding was set down for a five-day fixture before the Environment Court to commence on 13 March 2023.
[10] The Pascoes did not file their evidence on 7 February 2023, as required by the timetable directions. A record of a teleconference with the Environment Court on 24 February 2023 states that despite the timetable directions being made nine months earlier, the Pascoes advised they needed time to engage an ecologist and an engineer and to consider whether to engage a lawyer.
2 I have also issued judgments in related proceedings Pascoe v Minister for Land Information [2025] NZHC 1782 (Objection Appeal); Pascoe v Minister for Land Information [2025] NZHC 1783 (Original JR Application); and Pascoe v Minister for Land Information [2025] NZHC 1785 (Stay Appeal). This judgment should be read in conjunction with the judgments in the Objection Appeal and the Original JR Application.
3 See Objection Appeal, above n 2, at [5]–[48].
4 The Original JR Application has been dismissed: Original JR Application, above n 2, at [129].
[11] On 28 February 2023, an application for an adjournment of the Objection Proceeding was made by counsel for the Pascoes, Alan Webb.5 Although the Environment Court recorded that the Pascoes’ non-compliance with the timetable was concerning, the Court adjourned the fixture. In July 2023, the Environment Court directed that the Objection Proceeding was to be case managed on the priority track.
[12] On 10 August 2023, the Environment Court made new timetabling directions to bring the Objection Proceeding to hearing. These included for a fixture to be set down for a 10-day hearing on the first available date after 27 November 2023; and the Pascoes to file and serve evidence by 1 September 2023 (the Environment Court noted that this took into account that the Pascoes had at that time over a year to prepare their evidence), as well as a timetable for a common bundle and opening submissions.
[13] On 30 August 2023, Mr Webb filed a memorandum advising that he had been instructed to act for the Pascoes in the Objection Proceeding and asked that all correspondence affecting the Pascoes be directed to him.
[14] The Pascoes did not provide their evidence by 1 September 2023, and instead sought another extension of time. On 11 September 2023, the Environment Court made amended timetabling directions allowing the Pascoes further time to provide their evidence.
[15] On 19 September 2023, the Environment Court issued a notice of hearing for the Objection Proceeding for a seven-day fixture in New Plymouth to commence on 27 November 2023.
[16]In accordance with the Environment Court’s timetabling directions:
(a)the Pascoes filed evidence on 6 and 11 October 2023;
(b)the Minister filed reply evidence on 8 November 2023;
5 Mr Webb was at that time instructed for limited purposes only.
(c)the Minister provided the Pascoes with a draft common bundle index on 8 November 2023, and the Pascoes responded on 13 November 2023 providing an updated index that included additional documents;
(d)the Pascoes filed opening submissions on 10 November 2023; and
(e)the Minister filed and served the common bundle of documents electronically on 13 November 2023.
[17] The Environment Court issued a minute on 14 November 2023 expressing concern at the volume of evidence.
[18] On 16 November 2023, Mr Webb sought an urgent teleconference with the Environment Court. Mr Webb raised concerns at the size of the common bundle; considered there was potential to refine the issues for hearing; and noted a “very exacting timetable” requested by the Crown in the lead up to hearing with the result that there is no time for the refinement process to be discussed or agreed. Mr Webb advised that “a short adjournment of the hearing may be necessary” and proposed that the “week of 27 November (or part of it, or some other time before Christmas), instead be used for an Environment Court meditation to finally refine the issues between the parties …” as meetings had taken place between the parties.
[19] The Environment Court then scheduled and held a teleconference on 17 November 2023. The Minister filed opening submissions on the same date. At the teleconference, the Environment Court declined the Pascoes’ request for an adjournment. Mr Webb appeared at the teleconference on the Pascoes’ behalf. The Environment Court did not issue written reasons for that decision.
[20] However, the Court did arrange an Environment Court Commissioner to facilitate Court-assisted mediation between 23 and 24 November 2023 at the Novotel in New Plymouth.
[21] The Environment Court convened a further teleconference on 21 November 2023, in response to an email from Marie Gibbs to the Court, and
confirmed mediation arrangements. The Court issued a written minute after the teleconference. The Environment Court issued further minutes on each of 22 and 23 November 2023 commenting on arrangements made by the Pascoes as to who would attend mediation.
[22] On 24 November 2023, the Minister filed and served a bundle of key documents for the Objection Proceeding.
[23] The Court-assisted mediation took place over Thursday 23 November and Friday 24 November 2023. The Pascoes were represented at the mediation by counsel (Mark Utting) and supported by Ms Gibbs.
[24] The Pascoes and the Minister then continued with private mediation discussions (without the assistance of the Environment Court Commissioner) from Sunday 26 November until Tuesday 28 November 2023. Mr Webb as well as Ms Gibbs and Russell Gibbs (the Pascoes’ support persons) were involved in those discussions.
[25] Counsel for both the Minister and the Pascoes jointly updated the Environment Court at certain points on the progress of the private mediation discussions and the likelihood of the hearing still being required. This included a teleconference on Friday 24 November 2023 at around 8.30 pm to the Environment Court (at which the Pascoes were represented by Mr Utting), and further discussions with Mr Webb representing the Pascoes on the mornings of Monday 27 November 2023 and Wednesday 29 November 2023.6
[26] The Environment Court did not issue a written decision or record of these judicial conferences. Given the start of the hearing on Wednesday 29 November 2023, it can be inferred that the Environment Court agreed to further adjourn the hearing to
6 Mr Pascoe has suggested in evidence that the Pascoes were excluded from the Friday teleconference while representatives of the Minister were permitted to attend. The evidence for the Minister is that while two representatives of the Minister were present in the room during the teleconference, counsel for the Pascoes and the Minister respectively were appearing at the teleconference. I do not consider it necessary to make any findings on this matter.
enable the parties to continue their private mediation discussions until the morning of Wednesday 29 November 2023.
[27] The Objection Proceeding was then heard by the Environment Court between 29 November and 1 December 2023. The Environment Court heard extensive evidence on the Project from both parties. The Pascoes, Ms Gibbs and their expert witnesses (an ecologist, a registered valuer and a farm management consultant) gave evidence. The Pascoes were represented at the hearing by Mr Webb.
[28] On 16 January 2024, the Pascoes filed the present judicial review application (the New JR Application). On 18 January 2024, the Pascoes applied to the Environment Court to stay the Objection Proceeding pending determination of the New JR Application, including not requiring closing submissions to be filed or a decision to be given by the Court. The Environment Court declined the application.7 The Pascoes filed an appeal against the Environment Court’s refusal to grant an interim order to stay the Objection Proceeding until the New JR Application was determined (the Stay Appeal).8
[29] Alongside this, in the New JR Application and the Stay Appeal the Pascoes sought interim orders from this Court to stay the Objection Proceeding. These applications were declined and instead the Minister’s application staying the New JR Application and the Stay Appeal until the Environment Court issued its decision in the Objection Proceeding was granted.9
[30] The Environment Court issued its decision on 10 May 2024 and determined that the taking of the Pascoes’ land is fair, sound and reasonably necessary for achieving the Minister’s objectives (the EC Objection Decision).10 The Pascoes appealed the decision to this Court (the Objection Appeal).11
7 Pascoe v Minister for Land Information NZEnvC Wellington ENV-2021-AKL-116, 19 January 2024.
8 Stay Appeal, above n 2.
9 Pascoe v Environment Court [2024] NZHC 876 at [26]–[27].
10 Environment Court Objection Decision, above n 1, at [96].
11 The Objection Appeal has been dismissed: Objection Appeal, above n 2, at [234]–[235].
[31] The Objection Appeal, the Original JR Application and the Stay Appeal are based on common subject matter and claims overlapping with the present judicial review application, the New JR Application. The four matters were set down to be heard sequentially over a three-day fixture from 15 July to 17 July 2024.12 Written submissions for the hearing were to be filed by the Pascoes by 4 July 2024. While the Pascoes filed draft submissions on that date, I permitted them to file further written submissions at the commencement of the hearing on 15 July 2024. I also permitted Ms Gibbs to address the Court on behalf of the Pascoes and Russell Gibbs to assist with the documents and taking notes during the hearing.
Reviewability of the Environment Court’s exercise of statutory powers
[32] I first set out the statutory powers of the Environment Court before turning to the reviewability of the Environment Court’s exercise of those statutory powers.
[33] Part 11 of the Resource Management Act 1991 (RMA) provides for the constitution and powers of the Environment Court.
[34] Section 267(1) of the RMA provides that an Environment Court Judge may, at any time, require parties to a proceeding to be present at a conference presided over by a member of the Court. Each party required to be present must attend in person or have a representative present with authority to make decisions on matters that may reasonably be expected to arise.13 The member of the Court presiding over the conference may, after giving the parties an opportunity to be heard, make any of the directions listed in s 267(3) including such further or other directions they consider necessary.
[35] Section 268 provides that the Environment Court, may for the purpose of facilitating the resolution of any matter, ask a member of the Court or any other person
12 At that fixture, I adjourned the hearing of the Objection Appeal, directing that a further one day hearing be set down, which then took place on 12 August 2024. The Pascoes had raised concerns that they did not have sufficient opportunity to prepare for the July hearing. The adjournment allowed the Pascoes additional time both to present oral submissions in relation to the other matters at the July fixture and to prepare for the hearing of the Objection Appeal.
13 Section 267(1A).
to conduct an alternative dispute resolution process before or at any time during the course of a hearing. The Court may act under s 268 on its own motion or on request.
[36] Section 269 provides that the Environment Court may regulate its own proceedings in such manner as it thinks fit, provided it best promotes their timely and cost-effective resolution:
269 Court procedure
(1)Except as expressly provided in this Act, the Environment Court may regulate its own proceedings in such manner as it thinks fit.
(1A)However, the Environment Court must regulate its proceedings in a manner that best promotes their timely and cost-effective resolution.
(2)Environment Court proceedings may be conducted without procedural formality where this is consistent with fairness and efficiency.
(3)The Environment Court shall recognise tikanga Maori where appropriate.
(4)The Environment Court may use or allow the use in any proceedings, or conference under section 267, of any telecommunication facility which will assist in the fair and efficient determination of the proceedings or conference.
[37] The Environment Court is required to hear and determine all proceedings as soon as practicable unless, in the circumstances of a particular case, it is not appropriate to do so.14
[38] Section 297 requires every decision of the Environment Court unless it is pronounced orally at a sitting of the Court and every report, recommendation, or determination made by the Court on an inquiry, to be in writing signed by the member who presided at the hearing or inquiry (or by a majority of the members).
[39] Bearing in mind that the Environment Court is a specialist court with these statutory powers, the High Court can review the exercise of those statutory powers under the Judicial Review Procedure Act 2016. In order for an action or decision to be reviewable, it must flow from a statutory power, which is defined as “a power or right
14 Section 272.
to do any thing”, including “to exercise a statutory power of decision”.15 The term “statutory power of decision” means:16
… a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision deciding or prescribing or affecting—
(a)the rights, powers, privileges, immunities, duties, or liabilities of any person; or
(b)the eligibility of any person to receive, or to continue to receive, a benefit or licence, whether that person is legally entitled to it or not.
[40] The word “affecting” means “altering the rights or obligations of a person or depriving them of some benefit or advantage”.17 In Sloan v R, Hardie Boys J held that not every decision made under statutory authority is subject to review.18 To be amenable to review, a decision must go beyond what is merely administrative or procedural,19 or the exercise of a function rather than a power.20 The test is whether a decision or recommendation materially affects the applicant’s rights or interests, warranting the court’s intervention.21 To similar effect, New Zealand courts are reluctant to entertain judicial review when the underlying decision is subject to a statutory appellate procedure that is more appropriate than judicial review.22
[41] As such, the ability to review decisions on procedural or interlocutory steps in the course of a judicial hearing will depend on the facts of each case.23 Counsel for the
15 Judicial Review Procedure Act 2016, s 5.
16 Section 4.
17 Deliu v Executive Board of the New Zealand Law Society [2013] NZHC 2504, [2013] 3 NZLR 833 at [45], citing Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 (HL) at 949.
18 Sloan v R [1990] 1 NZLR 474 (HC) at 479.
19 Philips & Pike Ltd v Commerce Commission SC Wellington A444/79, 14 December 1979 at 13; and Mafart v Gilbert [1986] 1 NZLR 434 (HC) at 440.
20 Ruddlesden v Kapiti Borough Council (1986) 6 NZAR 20, (1986) 11 NZTPA 301 (HC).
21 Philip Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters Wellington, 2021) at [27.5.2(3)].
22 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [15] and [56]–[57], per Elias CJ and McGrath J, as endorsed in H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433; also see Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 at [567]–[573].
23 Kersten v Stack (1992) 6 PRNZ 300 (CA).
Minister, Ms Gaskell, referred me to several cases to illustrate circumstances where interlocutory decisions may or may not be reviewed.24 The Court of Appeal in Genesis Power Ltd v Environment Court held that the question is whether the interlocutory decision affects the rights or privileges of the parties or the eligibility to receive or continue to receive a benefit.25
The application for judicial review
[42] The Pascoes identify nine causes of action in their statement of claim. The Pascoes did not provide written submissions for the New JR Application in advance of the hearing, as was directed. Ms Gibbs made brief oral submissions on this matter. She relied on the statement of claim and Mr Pascoe’s affidavits of 17 June 2024 and 1 July 2024 (both of which contain matters of submission).26
[43] From those materials, I understand the Pascoes’ key contention to be that the case management decisions made by the Environment Court had an impact on their ability to have a fair hearing on their objection to the taking of their land. Ms Gibbs emphasises that she is not asking this Court to review the Environment Court’s entitlement to make case management decisions but rather is saying that the case management decisions must have a clear rationale and have regard to the instructions from the Pascoes to their counsel.
[44] The Minister’s position is that the Pascoes have not identified a statutory power of decision by the Environment Court that is amenable to review, as the interlocutory decisions identified are procedural or administrative in nature.27 The Minister submits that even if there was a reviewable decision, there is no error by the Environment Court and the application for judicial review should be dismissed.
24 Genesis Power Ltd v Environment Court [2003] NZAR 371 (HC) at [18]–[19]; Chef and Brewer Bar & Café Ltd v Police [1994] NZAR 428 (HC); Ngati Toarangatira Manawhenua Ki Te Tau Ihu Trust v Te Runanga o Tarangatira Inc HC Wellington CP228/94, 16 August 1994; and Rose v Hambles [1972] 1 WLR 33.
25 Genesis Power Ltd v Environment Court, above n 24, at [18].
26 I note that a substantial portion of the statement of claim under the heading “Objection proceeding” is replicated in Mr Pascoe’s affidavit dated 17 June 2024. It is also convenient to note here that the Minister reserved their position on the relevance (and admissibility) of documents in the Environment Court file in respect of each proceeding (including the present application). The Minister also recorded their specific objections to the admissibility of aspects of Mr Pascoe’s affidavits dated 17 June 2024 and 1 July 2024.
27 The Minister relies on the affidavits of Trevor Knowles and Caleb Perry both dated 21 June 2024.
Preliminary matters
[45] There are two preliminary issues raised by the Pascoes that I mention before turning to discuss the causes of action pleaded.
[46] The first relates to the potential availability of funding to the Pascoes from a company named Thistlehurst Dairy Ltd. Ms Gibbs says that the Pascoes’ right to a fair hearing had already been compromised by such funding not being available as Mr Webb was not able to be engaged for the Objection Proceeding until the end of August 2023. She says that the Environment Court was aware of the impecunious situation of the Pascoes and the need for this to be taken into account for the Pascoes to have a fair hearing. I have already addressed this issue in the Objection Appeal and therefore do not consider it further here.28
[47] The second issue relates to certain communications between the Pascoes and the Minister in November 2023 (prior to the Environment Court’s hearing of the Objection Proceeding). During the hearings for this matter and the other related proceedings, counsel for the Minister objected when Ms Gibbs sought to refer to the communications, on the basis they are confidential and without prejudice and therefore subject to settlement privilege. I have addressed this issue in my judgment in the Objection Appeal, concluding that the material is subject to settlement privilege.29 However, I am also satisfied that I can properly determine this judicial review application without needing to refer to the material in contention.
Approach to discussion of causes of action
[48] Given the overlapping nature of the matters raised by the Pascoes it is convenient to deal with the causes of actions by grouping them by reference to the allegations made.
28 Objection Appeal, above n 2, at [112]–[119].
29 Objection Appeal, above n 2, at [131]–[132].
Environment Court’s refusal to grant adjournments and failure to provide written reasons
First and eighth causes of action
[49] The Pascoes allege, in these causes of action, that the Environment Court failed to provide written reasons, in breach of the New Zealand Bill of Rights Act and the principles of natural justice. The Pascoes say that on 17 November 2023 the Environment Court declined their application to adjourn the Objection Proceeding and failed to provide written reasons for that decision.30 The Pascoes also say that the Environment Court held judicial conferences between 24 and 29 November 2023 and failed to issue any written record of those conferences, including in relation to its refusal to grant an adjournment sought on 29 November 2023.31
[50] The Minister submits that the declining of the adjournment requests is an administrative or procedural decision not amenable to review. The Minister also submits that these causes of action should be dismissed as there is no general requirement for the Environment Court to provide written reasons. In any event, the Minister says no breach of natural justice arose in the circumstances.
Discussion
[51] I deal first with the Pascoes challenge to the Environment Court’s refusal to grant adjournments. Despite refusing the adjournment request on 17 November 2023, the Environment Court facilitated mediation on 23 and 24 November 2023 prior to the commencement of the hearing. The Court also later twice agreed to defer the commencement of the hearing to permit further mediation to take place, although the Court did not grant a further adjournment on 29 November 2023.
[52] These decisions were made in circumstances where the notice of objection had been filed in August 2021 and the Environment Court was likely concerned to bring the proceeding to a resolution, given the passage of time and the statutory direction in s 272 of the RMA for the Environment Court to hear and determine all proceedings as soon as practicable. The Pascoes had been granted several extensions of time to file
30 First cause of action.
31 Eighth cause of action.
their evidence and granted an earlier request for the adjournment of the March 2023 hearing date. In addition, they were represented by experienced counsel from August 2023, and throughout the hearing and mediation processes.
[53] I consider that the declining of a request for an adjournment on the two occasions identified by the Pascoes is not the exercise of a statutory power of decision that materially affects the rights or liabilities of the Pascoes in this case. In any event, given the context just outlined, the refusal to grant the adjournments does not breach the Pascoes’ right to natural justice. Rather, their legitimate expectation of natural justice was upheld in circumstances where there is no right to have proceedings heard on a particular date or have an adjournment to another date.32
[54] I turn now to the allegations in relation to failing to give written reasons. As the Minister accepts, it is certainly desirable for the Environment Court to give reasons for its decisions. However, any obligation on the Environment Court to make a written record is context-specific.33 The Minister suggests that although s 297 of the RMA requires every decision of the Environment Court to be in writing “unless it is pronounced orally at the sitting of a court”, it can be inferred that when the Court pronounces a decision orally in a teleconference it is not required to issue a written decision with reasons. The reference to “decision” in s 297 may relate to a substantive decision not a procedural one. Such an interpretation may be supported by the general terms of s 269 of the RMA, and especially that Environment Court proceedings may be conducted without procedural formality where this is consistent with fairness and efficiency. This may be particularly so in the context of the Environment Court’s function under s 24 of the PWA being more in the nature of an inquiry.
[55] Although providing any decision in writing certainly promotes open justice, the allegations need to be viewed in context. Counsel for both parties were present at each of the teleconferences in question and were able to convey the outcome of them to their clients. The reality of what happened after the teleconferences reinforces this. In relation to the 17 November 2023 teleconference, the Court then arranged for
32 Ngati Toarangatira Manawhenua Ki Te Tau Ihu Trust v Te Runanga o Tarangatira Inc, above n 24, at 10.
33 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75]–[86]; and Primeproperty Group Ltd v Wellington City Council [2022] NZHC 1282 at [12].
Court-assisted mediation. The teleconferences that took place during the private mediation were conferences to update the Environment Court on developments with the mediation. I accept these likely were relatively informal, given the circumstances. The private mediation continued on until the 29 November 2023 request for an adjournment was refused, and then the Environment Court hearing commenced. There is no suggestion the Pascoes were in fact unaware of the position through this period.
[56] I am satisfied that in the circumstances there is no requirement that the Environment Court make a written record of these teleconferences. If I am wrong about that, I am nonetheless satisfied that there was no breach of natural justice.
[57] Therefore, I conclude there is no reviewable decision, or if there is, there is no error by the Environment Court. Accordingly, the first and eighth causes of action are not made out.
Remaining causes of action
[58] The Pascoes have identified seven causes of action in relation to minutes issued by the Environment Court dated 21, 22 and 23 November 2023 (causes of action two to seven and nine). As mentioned above, it is convenient to group the causes of action in relation to the allegations raised by the Pascoes. Before doing so, I set out the relevant parts of those Environment Court minutes.
Content of Minutes dated 21, 22 and 23 November 2023
[59] The record of teleconference dated 21 November 2023 (the 21 November Minute) relevantly states:
[3] I confirm my advice to counsel that the only people who might appropriately correspond with the Court are counsel or instructing solicitors. I also confirm my advice that the appropriate person to represent the [Pascoes] at mediation is Mr Webb as counsel. He confirmed that he could and would do so. At Mr Webb’s request (and with the agreement of counsel for the Minister) I confirmed that Ms Gibbs (but no other persons) may attend the mediation as a support person for Mr and Mrs Pascoe. It will be solely the responsibility of counsel to address the mediator and manage the mediation for the [Pascoes].
[4] Counsel for the Minister advised that in addition to counsel one person from LINZ and one from Waka Kotahi would attend on behalf of the Minister.
[60] The Minute of the Environment Court dated 22 November 2023 (the 22 November Minute) states:
[1] The Court has received advice from counsel, Mr Webb, that his instructions are that Mr Utting is to attend the mediation on behalf of the Pascoes rather than have Mr Webb present. Ultimately that is a decision to be made by the Pascoes, nevertheless I express the Court’s concerns as to that proposal and formally request Mr and Mrs Pascoe to revisit their instructions in that regard.
[2] As with the Resource Management Act proceedings previously dealt with by the Court, these proceedings involve the application of provisions of the Public Works Act which have a draconian impact on Pascoes property rights and way of life. It is important that they be represented at all stages of the proceedings by appropriately qualified and experienced legal representatives particularly at a mediation to take place immediately prior to commencement of hearing. The proposal that someone other than highly experienced counsel appearing at the hearing might represent the Pascoes at mediation is inherently problematic and may potentially impact on presentation of the Pascoes case at hearing.
[3] I request Messrs Webb and Utting to discuss this minute and urgently convey the Court’s views on this matter to Mr and Mrs Pascoe. They are to advise the Court as to the outcome of that discussion as soon as practicable.
[61] The Minute of the Environment Court dated 23 November 2023 (the 23 November Minute) states:
[1] I have perused the memorandum dated 22 November filed by the instructing solicitor for the [Pascoes]. It is apparent from that memorandum that the performance of duties of both counsel for the [Pascoes] involved in these proceedings is subject to outside interference. The suggestion that the time of senior counsel might be better spent preparing for hearing (when opening submissions have already been filed) than attending a mediation which might shape the form and content of and live issues at the hearing to commence on Monday is simply a nonsense and demonstrates the abysmal quality of advice being given to the Pascoes by third parties.
[2] At the request of Mr Webb and with the consent of counsel for the Minister I had agreed (against my better judgement) to Ms Gibbs attending the mediation as a support person. Ms Gibbs is not to intervene in discussions between counsel and the Pascoes and counsel for and representatives of the Minister. She is not to address the mediator but is to observe the proceedings. The second line of paragraph 7 of counsel’s memorandum should read that Messrs Gibbs and White may not attend mediation.
Allegations in relation to each Minute
[62]The Pascoes allege the 21 November Minute shows the Environment Court:
(a)acted unfairly and outside its jurisdiction by directing Mr Webb to stop preparing for the hearing and attend the Court-assisted mediation in person against the Pascoes’ instructions and without reasons (second cause of action);
(b)failed to observe the New Zealand Bill of Rights Act and natural justice principles, including the duty to act fairly and interfered in the performance of duties of their counsel (Mr Webb and Mr Utting), by misrepresenting Mr Webb’s advice to the Court by incorrectly stating in the record of teleconference that Mr Webb said that he would and could represent the Pascoes at the Court-assisted mediation against their instructions (fourth cause of action); and
(c)failed to observe the New Zealand Bill of Rights Act and natural justice principles, including the duty to act fairly and the right to a fair hearing, by directing that the only persons who may appropriately correspond with the Court are counsel or instructing solicitors, and not providing reasons for that direction (ninth cause of action).
[63] In relation to the 22 November Minute, the Pascoes allege that the Environment Court acted beyond its jurisdiction, acted unfairly and interfered in the performance of duties of their counsel (Mr Webb and Mr Utting) by criticising the Pascoes’ instructions that Mr Webb was not to attend the mediation and by directing their counsel to put pressure on the Pascoes to change their instructions (fifth cause of action).
[64] The Pascoes also allege that the 23 November Minute shows the Environment Court:
(a)failed to observe the New Zealand Bill of Rights Act and natural justice principles, including the duty to act fairly, by making directions in relation to the conduct of the mediation (including limiting Ms Gibbs’ role to “support person” and barring Mr Gibbs and Mr White from
attending the mediation) and not providing reasons (third cause of action);
(b)failed to observe the rule of law, the rules of evidence, the New Zealand Bill of Rights Act and natural justice principles, including the duty to act fairly, by stating that the performance of counsel for the Pascoes’ duties was subject to outside interference (sixth cause of action); and
(c)failed to observe the rule of law, the rules of evidence, the New Zealand Bill of Rights Act and natural justice principles, including the duty to act fairly, by criticising the suggestion that Mr Webb’s time would be better spent preparing for hearing than attending Court-assisted mediation which might shape the form and content of live issues at the hearing (seventh cause of action).
[65] As I understand the Pascoes’ allegations, it is that the Environment Court wrongly:
(a)made directions and statements about the role of counsel for the Pascoes;
(b)made a direction about attendance of support persons at mediation;
(c)made a statement about outside interference with the Pascoes’ counsel; and
(d)made a direction about who was entitled to communicate with the Environment Court.
[66] I now address each of these allegations (and therefore the corresponding causes of action).
Environment Court’s directions and statements about the role of counsel for the Pascoes
Second, fourth, fifth and seventh causes of action
[67] Under these causes of actions, the Pascoes challenge what they say are the Environment Court’s directions and statements about the role Mr Webb should have had in the Court-assisted mediation. The Pascoes say that the Environment Court directed Mr Webb to attend the mediation, which was against the Pascoes’ instructions,34 then criticised the Pascoes’ instructions that Mr Webb was not to attend mediation and directed their counsel to put pressure on the Pascoes to change their instructions.35 The Pascoes take further issue with the Environment Court’s statement that they say criticised their suggestion that Mr Webb’s time would be better spent preparing for the Objection Proceeding rather than attending Court-assisted mediation.36 Finally, the Pascoes say that the Environment Court misrepresented Mr Webb’s advice to the Court that he could and would represent the Pascoes at the Court-assisted mediation.37
[68] The Minister’s position is that these allegations do not identify any statutory power of decision amenable to review. As a matter of fact, the Environment Court did not direct Mr Webb to attend Court-assisted mediation but indicated concern that the Pascoes should be represented by experienced counsel at all stages of the proceedings. In any event, this was not material because Mr Webb did not attend the Court-assisted mediation, but instead the Pascoes were represented by Mr Utting as counsel and supported by Ms Gibbs.
Discussion
[69] I do not consider that the 21 November Minute or the 22 November Minute are properly understood as containing a direction from the Judge to Mr Webb to attend the Court-assisted mediation. The 22 November Minute makes it perfectly clear that the Judge recognised that whether Mr Utting or Mr Webb were to attend the mediation
34 Second cause of action.
35 Fifth cause of action.
36 Seventh cause of action.
37 Fourth cause of action.
was ultimately a decision for the Pascoes to make. What underpinned the Judge’s comments was the expressed concern that, given the draconian impact of the PWA on the Pascoes’ property rights and way of life, it was important that the Pascoes were represented by experienced counsel at all stages of the proceeding. From this perspective, the Judge’s comments are designed to promote natural justice for the Pascoes rather than being a criticism. I do not accept that the Judge acted outside of the Environment Court’s jurisdiction or acted unfairly in suggesting that the Pascoes be represented at mediation.
[70] The Pascoes’ concerns about the practical impact of their counsel participating in the mediation and preparing for the hearing are understandable. The pressures of such a process inevitably affect all parties and counsel. This may be especially so where it was suggested to me that the Environment Court perceived the focus of the Court-assisted mediation as refining the issues for the hearing whereas from the parties’ perspective the mediation included a broader scope. However, it is common practice in the Environment Court for such Court-assisted mediations to take place ahead of a hearing and for hearing counsel to be involved in the mediation. In the end, Mr Utting attended the Court-assisted mediation and Mr Webb was available by telephone. Mr Webb was then involved in the private mediation that followed and the hearing of the Objection Proceeding. I do not accept the Pascoes’ submission that the process that ensued constitutes a breach of their entitlement to natural justice.
[71] For completeness, I address the submission for the Pascoes that it was not open to the Environment Court to record that Mr Webb said “he could and would” attend the mediation when he said “I could attend but I have been instructed not to”. In making this submission, Ms Gibbs relies on Mr Pascoe’s affidavit dated 17 June 2024 where Mr Pascoe states:
… Judge Dwyer asked Mr Webb point blank if Mr Webb could attend. Mr Webb said he could attend but his instructions are that he was not to. Judge Dwyer said he was going to direct that either Mr Webb or Mr Utting must attend.
[72] It is not clear to me that Mr Pascoe attended the teleconference on 21 November 2023 himself (the 21 November Minute records only the appearances of counsel) or whether he has obtained this information from elsewhere. The
documentary record assists somewhat. Mr Webb emailed the Court later on 21 November 2023 seeking clarification of his understanding that the Court had approved either him or Mr Utting to attend the mediation. A further email from Mr Webb to the Court early on 22 November 2023 states that his instructions “just received” were that Mr Utting was to attend the mediation instead of Mr Webb.
[73] In addition, the Minister says that the memorandum from Mr Utting dated 22 November 2023 places some doubt on whether the Judge’s comment did misrepresent the position. Mr Utting’s memorandum relevantly states:
4. Counsel confirms that after extensive discussions the Pascoes instructed that [Mr] Webb is not [to] attend as they require him to prepare for the hearing beginning on Monday 27 November 2023
…
6. On the evening of Tuesday 21 November 2023 Counsel was contacted on behalf of the Pascoes regarding the mediation on Thursday 23 November 2023 and Friday 24 November 2023. Counsel was advised that [Mr] Webb was not available to attend the hearing because of his preparation commitments for the substantive hearing. Mr Webb did not say this. This was the advice Counsel received on behalf of the Pascoes. Counsel was also advised that it had been the intention of the Pascoes to ask Marie Gibbs in particular (but also Russell Gibbs and Haumoana White) to assist them in the mediation. They did not believe that they needed the assistance of any lawyers provided they could contact [Mr] Webb during the mediation if necessary.
[74] In any event, none of this is material given the terms of the 22 November Minute and the fact counsel for the Pascoes were involved in both the Court-assisted mediation and the hearing.
[75] The directions and statements made by the Environment Court and pleaded in these causes of action are not decisions amenable to judicial review. They are procedural matters that do not amount to decisions materially affecting the Pascoes’ rights or interests.
[76] Therefore, I conclude there is no reviewable decision, or if there is, there is no error by the Environment Court. Accordingly, the second, fourth, fifth and seventh causes of action are not made out.
Environment Court’s directions about attendance of support persons at mediation
Third cause of action
[77] The Pascoes claim that the Environment Court breached the New Zealand Bill of Rights Act and natural justice principles by making directions in relation to the conduct of the Court-assisted mediation. The directions limited the attendance of supporters of the Pascoes to Ms Gibbs only, to observe but not intervene in discussions between the parties and their counsel, nor address the mediator. The Pascoes say there were not similar restrictions placed on who could attend for the Minister.
[78] The Minister submits that such directions were not an exercise of a statutory power of decision amenable to review. The Environment Court also has a discretion to regulate its proceedings in a manner as it sees fits and therefore there is no discernible error.
Discussion
[79] As I have already discussed, the Environment Court was concerned that the parties were being represented at all stages by appropriately qualified and experienced legal representatives “particularly at a mediation to take place immediately prior to commencement of hearing”. The Judge was of the view that mediation had the best chance of succeeding if both parties were represented by experienced legal counsel. As it was a Court-assisted mediation, it is entirely open for the Environment Court to make directions of this nature, consistent with the Court’s statutory powers.
[80] The Pascoes were represented at the Court-assisted mediation by Mr Utting and Ms Gibbs (as a support person) and both spoke on the Pascoes’ behalf. Therefore, it cannot be said that the Pascoes’ right to natural justice was impacted by the directions as to the conduct of the mediation. Nor do I accept that there was any error by comparison with those attending for the Minister. Representatives of Toitū Te Whenua | Land Information New Zealand (LINZ) and Waka Kotahi | New Zealand Transport Agency (NZTA) along with counsel attended on behalf of the Minister.
[81] The directions made by the Environment Court about support persons who could attend the mediation are not decisions amenable to judicial review. They are procedural matters that do not amount to decisions materially affecting the Pascoes’ rights or interests. Nor do the directions require explanation.
[82] I conclude there is no reviewable decision, or if there is, there is no error by the Environment Court. Accordingly, the third cause of action is not made out.
Environment Court’s statement about outside interference with counsel
Sixth cause of action
[83] The Pascoes allege that the Environment Court erred by making a finding in the 23 November Minute that the performance of the duties of counsel for the Pascoes was subject to outside interference.
[84] The Pascoes say the Environment Court made a finding that is not based on evidence, and is unfair and unwarranted. They say that if the Judge is referring to the conduct of Ms Gibbs, Mr Gibbs or Mr White, then this finding is simply not correct and may undermine and affect the outcome of the Objection Proceeding.
[85] The Minister submits that this statement does not amount to a decision amenable to review and the Environment Court was concerned to ensure the Pascoes were properly represented at the Court-assisted mediation.
Discussion
[86] The statement that the Pascoes have identified is not a decision by the Environment Court which is amenable to review. The statement does not amount to a decision materially affecting the Pascoes’ rights or interests.
[87] For completeness I note this statement was made in the context of confirming arrangements for the Court-assisted mediation, including that the Pascoes were appropriately represented. The Judge’s comment refers to Mr Utting’s memorandum of 22 November 2023. That memorandum seems to suggest that there may have been some miscommunication in respect of advice received between the Pascoes, their
support persons and the Pascoes’ counsel. It may be that this underpins the Judge’s statement. In any event, I cannot see any basis for concluding that the statement would impact the Pascoes’ right to a fair hearing in the Objection Proceeding. This is particularly so now that the Environment Court has delivered its decision in that proceeding and I have concluded in the Objection Appeal that the Environment Court made no error of law in its decision.
[88]Accordingly, the sixth cause of action is not made out.
Environment Court’s direction about persons entitled to communicate with the Court
Ninth cause of action
[89] The Pascoes allege that the Environment Court failed to observe the New Zealand Bill of Rights Act and natural justice principles by directing that the only persons who may appropriately correspond with the Court are counsel or instructing solicitors, and not providing reasons for that direction. The Pascoes say this is prejudicial to them given the inequality of arms, the compressed timetable, mediation and hearing preparation in parallel and the volume of evidence with no opportunity to refine the issues before the hearing.
[90]The Minister says that this direction is not a decision amenable to review.
Discussion
[91] In the 21 November Minute, the Judge recorded his confirmation that he had advised counsel that only counsel or instructing solicitors may correspond with the Environment Court. In February 2023, the Judge had observed that there had been confusion as a result of both counsel and Ms Gibbs and Mr Gibbs communicating with the Court on the Pascoes’ behalf.
[92] The Environment Court has the discretion to regulate its proceedings in a manner as it sees fit.38 Where a party is legally represented, it is usual for
38 Resource Management Act 1991, s 269.
communications with the Court to be conducted by the party’s legal representative. This tends to enhance a party’s rights to natural justice. In any event, Mr Webb had asked that all correspondence related to the applicants be directed to him and therefore it was reasonable for the Environment Court to direct that counsel for the applicants should correspond on their behalf.
[93] The Judge’s advice is not the exercise of a statutory power of decision amenable to review. Nor does it require further explanation.
[94]Accordingly, the ninth cause of action is not made out.
Conclusion and result
[95] The Pascoes have challenged procedural matters and statements by the Environment Court. Nothing raised by the Pascoes constitutes a reviewable error by the Environment Court. Nor have the Pascoes established any breach of natural justice suggesting their right to a fair hearing was compromised or any other discernible error.
[96]The application for judicial review is dismissed.
Costs
[97]I encourage the parties to agree costs.
[98] If such agreement cannot be reached, I invite the parties to file a joint memorandum (or separate memoranda if necessary) within 15 working days proposing an appropriate timetable for determination of costs. My preliminary view is that it would be appropriate to determine costs in this matter and the other related proceedings (being the Objection Appeal, the Original JR Application and the Stay Appeal) within a common timeframe given the overlapping nature of the matters in issue and the manner in which the proceedings were advanced and heard. I ask that the parties bear this in mind in any proposed timetable.
[99] I will then make further directions about the determination of costs, anticipating that they will be determined on the papers.
McQueen J
Solicitors:
Crown Law Office, Wellington for First and Second Respondents
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