Pascoe v Minister for Land Information
[2024] NZHC 1598
•18 June 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-48
[2024] NZHC 1598
UNDER the Judicial Review Procedure Act 2016 BETWEEN
TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE
Applicants
AND
THE MINISTER FOR LAND INFORMATION
Respondent
CIV-2024-443-08 UNDER
the Judicial Review Procedure Act 2016
BETWEEN
TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE
Appellants
AND
THE ENVIRONMENT COURT
First Respondent
MINISTER FOR LAND INFORMATION
Second Respondent
Teleconference: 31 May 2024 with further submissions on 4, 7 and 11 June 2024 Appearances:
Applicants/Appellants in person
A J Vincent for Environment Court
J M Prebble and K F Gaskill for Minister for Land InformationJudgment:
18 June 2024
JUDGMENT OF PALMER J
Solicitors
Crown Law Office | Te Tari Ture o te Karauna, Wellington
PASCOE v THE MINISTER FOR LAND INFORMATION [2024] NZHC 1598 [18 June 2024]
CIV-2024-485-48
UNDERthe 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
BETWEENTONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE
Appellants
ANDCHRIS PENK, MINISTER FOR LAND INFORMATION
Respondent
What happened?
[1] Mr Tony Pascoe and Mrs Debbie Pascoe own 155 hectares of land in the Mangapepeke Valley, near Mount Messenger in North Taranaki. Waka Kotahi | the New Zealand Transport Agency (NZTA) has sought to acquire various interests in the Pascoes’ land for Te Ara o Te Ata: the Mount Messenger Bypass Project.
[2] Waka Kotahi has been negotiating with the Pascoes since 2016 to acquire their land by agreement under the Public Works Act 1981 (the Act). The negotiations were unsuccessful. On 4 August 2021, under s 23(1)(c) of the Act, the Minister for Land Information (the Minister) issued a notice of intention to acquire around 11.2 hectares of the Pascoes’ land for construction of the road and a leasehold estate over 12.7 hectares of their land for temporary occupation during construction. The Pascoes objected in the Environment Court, which upheld the notice and declined to stay its decision.1
[3] All this has engendered a number of legal proceedings. Most relevant are two judicial review proceedings which have been collectively allocated a priority fixture in the High Court for up to three days from 15 July 2024:
(a)In Pascoe v Minister for Land Information (CIV-2021-443-48) (the notice of intention judicial review), the Pascoes apply for judicial review of the Minister’s decision to issue the notice of intention, including on grounds of breach of natural justice and failure to provide reasons. They have appealed to the Court of Appeal an interlocutory determination in these proceedings on a question of law. That will be heard on 10 July 2024.
(b)In Pascoe v Environment Court (CIV-2024-443-8) (the Environment Court judicial review), the Pascoes apply for judicial review of
1 Pascoe v Minister for Land Information [2024] NZEnvC 101. See also the refusal to grant a stay: Pascoe v Minister for Land Information NZEnvC Wellington ENV-2021-AKL-116, 19 January 2024. The High Court dismissed the Pascoes’ appeal of the Environment Court’s decision to refuse a stay: Pascoe v Environment Court [2024] NZHC 1169.
decisions of the Environment Court leading up to its upholding of the notice of requirement.
[4] In her minute of 23 May 2024 setting down the collective priority fixture, Grice J noted that the Pascoes sought disclosure:2
…
c)that the Environment Court provide disclosure in relation to judicial conferences between 24 and 29 November 2023 (including with NZTA persons present) in relation to mediation, negotiations, site visits and adjournments as per paragraph [127] of the Statement of Claim dated 16 January 2024 in CIV-2024-443-8.
d)that the Environment Court provide disclosure in relation to its consideration and decision whether or not to grant or decline Mr Webb’s 17 November 2023 application for adjournment, in CIV-2024-443-8.
e)a discovery order relating to production of the relevant records of the decision maker being the first respondent as well as the second respondent in CIV-2024-443-8.
[5] In the same minute, Grice J stated that requests for disclosure of all factual information about the “Washer landslide”, which is a part of Mount Messenger that State Highway 3 currently traverses, “are not relevant here” and will be dealt with in management of another proceeding.3 Grice J directed that the Minister and Environment Court file memoranda listing the material to be provided in the Minister’s affidavit and material from the Environment Court which will be made available for the hearing.4 This has been done. If there was no agreement on discovery, the Pascoes were directed to file a memorandum setting out what further documents have not been provided and why they are sought, and a hearing on discovery issues would be held on 31 May 2024.
[6] On 23 May 2024, the Pascoes filed a memorandum that, among other things, disputed the irrelevance of the Washer landslide information and explained why they
2 Pascoe v Minister for Land Information HC New Plymouth CIV-2021-443-48, 23 May 2024 at [36].
3 At [39]–[40].
4 At [43].
wanted it. On 24 May 2024, Grice J issued another minute which, among other things, reiterated that the information is outside the scope of discovery.5
[7] At the hearing on 31 May 2024, which was converted to a teleconference to suit Mr Pascoe, Mr Pascoe said he was underprepared due to having the Court of Appeal hearing the previous day and his wife being sick. He relied on his memorandum of 15 May 2024 which does not address discovery issues except by bare requests for the information identified above. Following the hearing, on 4 June 2024, without leave and without seeking leave, the Pascoes filed further written submissions. In light of the circumstances, and in the interests of fairness, I agreed to receive his memorandum but gave the other parties the opportunity to respond in writing and Mr Pascoe to reply to those responses. They all did so.
[8] On 31 May 2024, the Pascoes did have time to file a notice of appeal against the Environment Court decision of 10 May 2024. The hearing of that appeal (the Environment Court appeal) will now occur at the priority fixture as well.
Submissions
[9] The Pascoes allege that the Minister has reneged on previous undertakings to provide information. They clarify that they seek discovery of documents in the possession of the Minister, Land Information New Zealand (LINZ) and NZTA. They complain that a briefing on the project has been withheld from them on grounds of legal privilege and seek discovery of that too. They reiterate their request for discovery of the Washer landslide information and make new requests for discovery of a contract between NZTA and The Property Group (TPG) (an accredited supplier of services to LINZ), and audio recordings of the Environment Court teleconferences or notes and correspondence of the Judge and mediator in relation to them.
[10] Mr Prebble, for the Minister, opposes further discovery. The documents sought in relation to the Environment Court proceeding are not required. Affidavits will be provided in relation to the judicial review proceedings. The appeal is required to be on matters of law only. The Pascoes’ request for factual information in relation to the
5 Pascoe v Minister for Land Information HC New Plymouth CIV-2021-443-48, 24 May 2024.
Washer landslide was determined by Grice J and is outside the scope of discovery for the present proceedings. The contract is also irrelevant.
[11] The Environment Court abides the decision of the Court. Ms Vincent, on the Court’s behalf, notes that the index of records was filed on 29 May 2024 and that there are no documents relating to the mediation and judicial conferences between 23–29 November 2023. Judicial information is not normally accessible. The record must speak for itself.
Relevant law of discovery
[12] There is no discovery in an appeal, especially on points of law. Under r 20.15 of the High Court Rules 2016, the Court can direct the decision-maker to provide a report setting out any considerations not set out in the decision, but to which the decision-maker had regard in making the decision appealed against. Under r 20.16, further evidence on a question of fact may only be adduced with the leave of the Court, which may only be granted if there are special reasons for hearing the evidence.
[13] In relation to judicial review proceedings, under s 14(2)(h) and subs (j) of the Judicial Review Procedure Act 2016, a Judge may require a party to make discovery or produce documents and determine whether the record of proceedings should be filed. Accordingly, discovery in judicial review proceedings is not available as of right.6 The starting point in considering whether discovery is appropriate are the issues made relevant by the pleadings.7 A court will also consider whether such discovery is proportionate. As Cooke J stated in Gama Foundation v Chief Executive of the Ministry of Social Development:8
[10] In the end the Court must make an assessment of what discovery is required to enable the applicant to fairly argue its case, whilst at the same time ensuring that the materials remain relevant, and the requirements are consistent with the objective of judicial review being a simple, untechnical and prompt procedure.
6 Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614, (2016) 27 NZTC 22-084 at [20].
7 At [21].
8 Gama Foundation v Chief Executive of the Ministry of Social Development [2021] NZHC 3146. See also Smith v Attorney-General [2017] NZHC 2810; and Te Runanga o Ngati Awa v Attorney-General HC Wellington CIV-2006-485-1025, 28 March 2007.
Should further discovery be ordered?
[14] I only consider the requests for discovery that relate to the upcoming collective priority fixture, namely: the notice of intention judicial review; the Environment Court judicial review; and the Environment Court appeal. If the Pascoes wish to pursue their other various requests for discovery, pertaining to their other proceedings, they must do so by way of formal application.
[15] Records of the Environment Court’s consideration about whether or not to grant the Pascoes’ application for adjournment on 17 November 2023, and the judicial teleconferences or audio-recordings, do not form part of the record of the Environment Court’s decision-making. The affidavit to be filed will set out the steps taken in the course of the objection proceedings, will annex Environment Court minutes, and will record when a minute was not issued. The Environment Court assisted mediation is conducted on a confidential and without prejudice basis, so records of that should not be made available.9 There are no recordings of the teleconferences.
[16] I decline the request for discovery of the further judicial information sought. It is the court record that is relevant to the proceedings to be heard at the collective priority fixture, including the latest appeal on points of law. I do not consider there is any basis, on the information before me, to consider a further report by the Environment Court. It would not add anything useful to the affidavit to be filed. The Pascoes will need to proceed on the basis of the record and the affidavits to be provided. If the Environment Court failed to issue a minute or provide reasons when it was required to do so, the Court can still determine the application for judicial review as a matter of law.
[17] Legally privileged information does not have to be discovered or disclosed in proceedings unless there are particular circumstances, as set out in the s 53 of the Evidence Act 2006 and related provisions. Those circumstances are not present here and have not been argued to be present here.
9 See Te Kōti Taiao o Aotearoa | Environment Court of New Zealand Practice Note 2023 at [7.3(k)]. See also Evidence Act 2006, s 57.
[18] Grice J has already determined for the High Court, twice in her minutes of 23 and 24 May 2024, that Washer landslide information is not relevant to the proceedings to be heard at the collective priority fixture. I do not revisit those decisions.
[19] The contract between NZTA and TPG now sought by the Pascoes is also not relevant to the collective priority fixture. The Pascoes do not explain how it is. Furthermore, neither NZTA nor TPG are parties to these proceedings. If it is thought to be relevant to the first and second grounds of the notice of intention judicial review, those issues were already determined by Grice J on 30 November 2022.10 The appeal of that decision will be heard by the Court of Appeal on 10 July 2024. Discovery cannot now be pursued in the High Court in aid of that appeal.
Result
[20] The applications for discovery in relation to the proceedings to be heard at the collective priority fixture scheduled for 15 July 2024 are declined. Costs will be determined in the context of the substantive proceedings.
Palmer J
10 Pascoe v Minister for Land Information [2022] NZHC 3173 [Preliminary Determination].
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