Pascoe v Environment Court
[2024] NZHC 876
•22 April 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2024-443-8
[2024] NZHC 876
UNDER the Judicial Review Procedure Act 2016 BETWEEN
TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE
Applicants
AND
ENVIRONMENT COURT
First Respondent
MINISTER FOR LAND INFORMATION
Second Respondent
CIV-2024-485-48 UNDER
the Public Works Act 1981 and the Resource Management Act 1991
IN THE MATTER OF
An appeal under Section 299 of the Resource Management Act 1991
BETWEEN
TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE
Appellants
AND
MINISTER FOR LAND INFORMATION
Respondent
Hearing: 18 April 2024 Appearances:
Mr and Mrs Pascoe in person, supported by Ms Gibbs A J Vincent for First Respondent in CIV-2024-443-8 K F Gaskell and E S Harris for Second Respondent in
CIV-2024-443-8 and for Respondent in CIV-2024-485-048
Judgment:
22 April 2024
JUDGMENT OF O’GORMAN J
PASCOE v ENVIRONMENT COURT [2024] NZHC 876 [22 April 2024]
Introduction
[1] This is a hearing of three applications made in two different proceedings commenced in this Court, both relating to an Environment Court proceeding (ENV-2021-AKL-116) to determine whether it is fair, sound and reasonably necessary for the Minister for Land Information (the Minister), despite Mr and Mrs Pascoe’s objection under s 24 of the Public Works Act 1981 (PWA), to acquire parts of their land for the purpose of Te Ara o Te Ata: Mt Messenger Bypass Project (the Project).
[2] The Environment Court’s substantive hearing took place in November and December 2023, and closing submissions were filed by the parties on 2 February 2024. The Pascoes’ submissions were filed under protest, without prejudice to their position in the two proceedings now before this Court. The Environment Court reserved its decision. If not stayed, I understand the Environment Court would aim to issue its decision around the end of this month, or shortly afterwards.
[3]The three applications for my determination are:
(a)In a judicial review proceeding (CIV-2024-443-8)1 challenging a series of related decisions, findings, and directions of the Environment Court in the lead-up to the substantive hearing, Mr and Mrs Pascoe have applied for an interim order under s 15 of the Judicial Review Procedure Act 2016 (JRPA) staying the Environment Court proceeding. In summary, they say these matters prejudiced their right to a fair hearing before the Environment Court.
(b)In an appeal (CIV-2024-485-48)2 of the Environment Court’s decision to refuse a stay,3 Mr and Mrs Pascoe have applied to stay the Environment Court proceeding under s 24 of the PWA pending the determination of the stay appeal.
1 This proceeding was filed on 16 January 2024.
2 This appeal was filed on 29 January 2024.
3 The Environment Court’s decision was made on 19 January 2024.
(c)The Minister has sought orders staying the judicial review proceeding and the appeal proceeding, to enable the Environment Court to complete its determination of the proceeding under s 24 of the PWA.
[4] By way of wider context, there are also other proceedings on foot concerning the Minister’s earlier decision to issue the notice of intention to acquire under s 23 of the PWA. In a different judicial review proceeding (CIV-2021-442-048), Mr and Mrs Pascoe challenged that decision. On 30 November 2022, Grice J determined preliminary issues in the Minister’s favour.4 The balance of that proceeding was stayed pending the Environment Court decision,5 save for the seventh cause of action about the legality of delegation which was determined in favour of the Minister.6 The Pascoes have appealed Grice J’s decision. That appeal is due to be heard on 30 May 2024.
[5] In addition, a further judicial review proceeding was commenced on 11 April 2024 about alleged failures to make decisions to approve and preapprove payments under the PWA.
[6] At the outset of the hearing, I gave leave for Ms Gibbs to be heard as amicus assisting Mr and Mrs Pascoe. Ms Vincent appeared for the Environment Court to record its position that it simply abides.
Legal principles
JRPA
[7] To grant interim relief under s 15 of the JRPA, the Court must first be satisfied the orders sought are necessary to preserve the position of the applicant.7 If that statutory threshold is met, the Court has a wide discretion to consider all of the
4 Pascoe v Minister for Land Information [2022] NZHC 3173.
5 Pascoe v Minister for Land Information HC New Plymouth CIV-2021-443-048, 31 July 2023 (Minute of Gendall J); and Pascoe v Minister for Land Information HC New Plymouth CIV-2021-443-048, 15 September 2023 (Minute of Radich J).
6 Pascoe v Minister for Land Information [2023] NZHC 2844; and Pascoe v Minister for Land Information [2023] NZHC 2836.
7 Judicial Review Procedure Act 2016, s 15(1).
circumstances including the strength or the private and public repercussions of granting relief.8
Stay pending appeal
[8] The appeal proceeding is brought under pt 20 of the High Court Rules 2016. Under r 20.10(2) of the High Court Rules, pending the determination of an application for leave to appeal or an appeal, the court appealed from (in this case the Environment Court) or this Court may, on an interlocutory application:
(a)order a stay of the proceeding in which the decision was given or a stay of the enforcement of the decision; or
(b)grant any interim relief.
[9] In determining whether or not to grant a stay, the Court must weigh the factors “in the balance” between the successful litigant’s rights and “the need to preserve the position in case the appeal is successful”.9 Factors to be taken into account in this balancing exercise include:10
(a)whether the appeal may be rendered nugatory by the lack of a stay;
(b)the bona fides of the applicant as to the prosecution of the appeal;
(c)whether the successful party will be injuriously affected by the stay;
(d)the effect on third parties;
(e)the novelty and importance of questions involved;
(f)the public interest in the proceeding;
8 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [JR15.02], citing Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 (CA).
9 Keung v GBR Investment Ltd [2012] NZAR 17 (CA) at [11], referencing Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.
10 At [11].
(g)the overall balance of convenience; and
(h)the apparent strength of the appeal.11
Timing of interlocutory appeals
[10] In the context of considering the scope of statutory appeal rights that are not directly relevant to these applications,12 the Supreme Court in Siemer v Heron13 commented on the discretion to decline to hear interlocutory appeals in advance of trial (or the substantive hearing of an appeal from a lower court) if it considers that they may be overtaken by the trial (or hearing) or that the appellant is unlikely to be prejudiced by such a postponement.14 It is not generally necessary to appeal against an interlocutory order made during the course of the proceedings until after the substantive decision in the proceedings has been delivered.15 In part, this is because up to that time it is not necessarily apparent whether and on what basis the interlocutory ruling may be relevant to the substantive outcome. Any application for leave to appeal brought against that substantive determination can signal that it includes a wish to appeal against an order made in the course of the proceedings which logically influenced the substantive determination.16
[11] The above principles were applied in Knauf Insulation Ltd v Tasman Insulation New Zealand Ltd,17 which concerned appeals against interlocutory decisions about the late disclosure of survey evidence and the Judge’s refusal to adjourn the trial. The Court of Appeal declined to hear the appeal of the interlocutory judgments in advance of the completion of the High Court trial and the High Court determination of the case. It gave three reasons:
11 At [11]; and Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZCA 377 at [10].
12 Judicature Act 1908, ss 66–67. Now superseded by Senior Courts Act 2016, ss 56–60.
13 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.
14 At [32].
15 At [32], refencing Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1)
[2006] NZSC 59, [2007] 2 NZLR 1 at [14].
16 Paper Reclaim Ltd, above n 15, at [14].
17 Knauf Insulation Ltd v Tasman Insulation New Zealand Ltd [2013] NZCA 427, (2013) 21 PRNZ 535.
(a)the Court was not satisfied that any real prejudice had been or would be caused to the appellants by reason of the interlocutory judgments;
(b)this was a situation where the issues on appeal would be overtaken by the substantive hearing which had already commenced; and
(c)appellate courts should be, and traditionally have been, reluctant to interfere with an interlocutory decision unless it is such as to effectively resolve the case or has such a substantial impact on the trial that it would be unfair to require the appellant to wait until after the trial to pursue it.
[12] Relevant to the present statutory context, in Island Bay Residents’ Association Inc v Wellington City Council, the Court held that an interlocutory decision (in that case refusal to grant a stay) could be appealed as part of a substantive appeal, provided a point of law could be identified, after the Environment Court has issued its substantive decision.18
PWA objection, inquiry and appeal procedures
[13] Under s 23(3) of the PWA, any person objecting to a notice of an intention to take land has the right to object to the Environment Court, in which case the Environment Court conducts an inquiry in accordance with s 24(3) of the PWA.
[14] In such a case, s 296 of the Resource Management Act 1991 (RMA) provides that no application for review under the JRPA may be made unless the right to an inquiry has been exercised and the Environment Court has made its decision.
[15] The decision of the Environment Court may be appealed on questions of law.19 In Marlborough District Council v Evans, McQueen J held that such appeals from the Environment Court to the High Court under the RMA are restricted to questions of law on substantive issues between the parties that have been finally decided.20 In
18 Island Bay Residents’ Association Inc v Wellington City Council [2001] NZRMA 63 at [39].
19 Resource Management Act, s 299.
20 Marlborough District Council v Evans [2023] NZHC 3849 at [79].
Island Bay Residents’ Association Inc, the High Court held that a refusal to grant an adjournment was not an appealable decision under s 299 of the RMA in its own right.21
General powers of stay
[16] The Court may stay proceedings before it under HCR 15.1(3) on such conditions as are considered just. In Kidd v Registrar-General of Land,22 Powell J stayed proceedings to allow a Māori Land Court proceeding to be concluded first.
[17] The Court also has power under its inherent jurisdiction to stay any matter to effectively manage its own processes in a manner consistent with the just, speedy, and inexpensive determination of proceedings.23
Analysis
Judicial review interim relief
[18] For interim relief in the judicial review proceeding, the Pascoes cannot establish that a stay is “necessary” to preserve their position:
(a)Their ability to seek relief is not lost by the Environment Court releasing its decision. To the contrary, s 296 of the RMA requires that the Environment Court makes its decision as a pre-condition to the Pascoes pursuing their judicial review claim. This is consistent with the principles on interlocutory appeals outlined at [10]–[12] above.
(b)Ms Gibbs submitted that s 296 does not apply as a bar because the case management decisions are separate from what will be addressed in the Environment Court’s substantive decision, and she interpreted the stay decision of Gendall J to support that distinction. I do not accept this is correct as a matter of law (given the wording of the statutory provisions
21 Island Bay Residents' Association Inc, above n 18, at [34]–[38]. See [12] for it being appealable as a point of law affecting the substantive decision.
22 Kidd v Registrar-General of Land [2021] NZHC 1747.
23 McGechan on Procedure, above n 8, at [CR12.01], referencing Sullivan v Wellsford Properties Ltd [2018] NZHC 708; and High Court Rules 2016, r 1.2.
and the general approach to interlocutory appeals described above), nor does Gendall J suggest otherwise.24
(c)The possibility of mediation or settlement is not precluded by the Environment Court’s decision being issued.
(d)Their current position is preserved without the stay they seek, because if the Pascoes are ultimately successful in the judicial review proceeding, then the Court has the discretion to quash the Environment Court’s decision and direct that court to reconsider the whole or any part or any matter to which the claim relates.25
[19] Furthermore, balance of convenience and interests of justice factors favour allowing the Environment Court to issue its decision:
(a)The Environment Court trial has concluded and there are no further steps required of the parties in that substantive process. Accordingly, there is no burden or prejudice to the Pascoes or others in allowing the Environment Court to issue its decision. There is no practical justification for taking an exceptional approach in this case of hearing challenges of interlocutory decisions prior to the substantive judgment being issued.
(b)This is a case where the issues in the judicial review proceeding may be overtaken by the Environment Court’s decision (if successful, the Pascoes would have no need to pursue the judicial review claim), or any challenge of it (e.g., the Pascoes might succeed in such a challenge).
24 It appears there may be a mistake in the last sentence of [10] of the 31 July 2023 minute which could have caused confusion. Gendall J observed that there may not have been an obvious right of objection for causes of action 1, 2 and 6 (relating to s 18 and not s 23 of the PWA). On my reading, the last sentence should have included the word “not”, i.e. “As such, arguably s 296 of the Resource Management Act may not have applied to these grounds”. This was not material to the stay issues that Gendall J was determining because those causes of action had already been determined by the High Court, but he stayed the remaining ones. There can be no question that the Pascoes did have a right of objection in this case, and their judicial review relates to that very process.
25 Judicial Review Procedure Act, s 17(3).
(c)Relief in judicial review proceedings is discretionary. This Court cannot properly assess the effect of the interlocutory rulings until the substantive outcome is known.
(d)No prejudice arises from the Environment Court issuing its decision first, in terms of timing. Unless stayed, the Environment Court expects to issue its decision around the end of this month, or shortly after. The judicial review application could not be heard by then. The Environment Court issuing its decision first provides the quickest path to a final outcome, among other things because it will enable potential efficiencies of hearing related judicial review challenges/appeals together.
(e)The affidavit of Mr Perry, the project manager for the Project, outlines significant costs and delays to construction while the disputes with the Pascoes remain unresolved. These have public interest implications beyond the present parties. Regardless of any reasons for delays to date, or why existing commitments were made, it is in the interests of all parties and the public to pursue the objective of the just, speedy, and inexpensive disposal of proceedings.26 A proper determination of Mr and Mrs Pascoe’s legal rights is supported rather than undermined by the Environment Court issuing its decision (so the judicial review and appeal challenges can proceed), and this will also be the quickest and most efficient path.
Stay pending appeal
[20]For the reasons outlined above, a stay pending appeal is not appropriate either:
(a)other than giving proper effect to ss 296 and 299 as a matter of law, the appeal will not be rendered nugatory by declining their present application, nor would the Pascoes suffer any practical prejudice;
26 High Court Rules, r 1.2.
(b)to the contrary, the normal position is that appeals concerning interlocutory decisions should await the substantive outcome and any related appeal, if this would be efficient;
(c)while I acknowledge the Pascoes feel genuinely aggrieved by the Environment Court’s refusal of a stay, that decision is not appealable under s 299 of the RMA other than on a point of law arising from the substantive decision, so the final decision is necessary for their purposes anyway;27
(d)the Minister, third parties and the public interest would be injuriously affected by any stay that would have the effect of delaying determination of the substantive issues;
(e)there are no questions of novelty and importance involved; and
(f)the overall balance of convenience favours allowing the Environment Court to issue its decision first, as assessed in [19] above.
Minister’s application for stay
[21] Section 296 of the RMA stipulates that the proper order is for an inquiry before the Environment Court (a specialist body28) to be concluded before any related judicial review in the High Court proceeds.
[22] Similarly, the Pascoes’ objections arising from the refusal of stay must be pursued under s 299 of the RMA as a point of law arising from the substantive decision.
[23] Even if there were a residual discretion, the various factors addressed above in respect of the Pascoes’ applications make it appropriate for the stay sought by the Minister to be granted.
27 See [12] above.
28 Resource Management (online ed, Thomson Reuters) at [A296.02]; and St Mary’s Bay Assn v Auckland City HC Auckland A9/81, 9 February 1981.
[24] Accordingly, I accept the Minister’s position that a stay should be issued in respect of these two High Court proceedings,29 to enable the Environment Court’s substantive decision to be issued first.30 If counsel advise this Court’s registry once the decision has issued, both of these proceedings will then be listed for appropriate case management directions to be made promptly thereafter.
Updating submissions and evidence
[25] The Pascoes filed updating submissions on 18 April 2024 outlining recent developments with settlement negotiations, and further evidence (particularly geotechnical investigations) which they say is relevant to the merits of their s 24 objection. They rely on this to say that there would be no practical prejudice of delay from the stay orders they seek, and to emphasise their concern they have been or will be treated unjustly. I have not referred to this material because it does affect my analysis of the issues for my determination. Whether or not there may be a practical impact or prejudice caused by the stay orders sought, this Court seeks to avoid delay and inefficiency. The substantive grounds of challenge in the judicial review, stay appeal and any future substantive appeal (including potential issues of updating evidence) are not for determination now.
Result
[26] I decline the applications by Mr and Mrs Pascoe seeking a stay of the Environment Court proceedings, as pursued in their applications made in the judicial review proceeding (CIV-2024-443-8) and in the appeal (CIV-2024-485-48).
[27] Instead, I grant orders as sought by the Minister staying the judicial review proceeding (CIV-2024-443-8) and the appeal (CIV-2024-485-48) until the Environment Court has issued its substantive decision in ENV-2021-AKL-116, or until further order of this Court.
29 CIV-2024-433-8 and CIV-2024-485-48.
30 ENV-2021-AKL-116.
[28] If the parties cannot agree on the issue of costs, I direct that the respondents’ memoranda on costs be filed and served within 10 working days of this judgment, and that a memorandum from the Pascoes be filed and served 10 working days later.
O’Gorman J
Solicitors:
Crown Law Office, Wellington
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