Plane Sense Wellington Incorporated v Airways Corporation of New Zealand Limited

[2025] NZHC 961

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-423

[2025] NZHC 961

BETWEEN

PLANE SENSE WELLINGTON INCORPORATED
Applicant

AND

AIRWAYS CORPORATION OF NEW ZEALAND LIMITED AND AEROPATH LIMITED

First Respondent

AND

WELLINGTON INTERNATIONAL AIRPORT LIMITED

Second Respondent

AND

DIRECTOR OF CIVIL AVIATION

Third Respondent

On the Papers

Counsel:

K I Murray and A E Gordon for Applicant

J D Every-Palmer KC and M R G van Alphen Fyfe for First Respondent

G M Richards, J K Scragg and S K Brennan for Second Respondent

B J R Keith, J F Parnell and T W Peoples for Third Respondent

Judgment:

17 April 2025

JUDGMENT OF ISAC J

[Application for adjournment of trial]

Introduction

[1]    The applicant, Plane Sense, seeks judicial review of the respondents’ decisions to alter the flight path of jets taking off in a northerly direction from Wellington Airport. The flight path was changed in 2022, and now brings jets over the northern

PLANE SENSE WELLINGTON INC v AIRWAYS CORPORATION OF NZ LTD & ORS [2025] NZHC 961

[17 April 2025]

suburbs of Wellington City. The applicant says the new flight path has resulted in significant adverse noise effects for residents and is unnecessary to improve safety. In bringing the claim the applicant hopes to have the original flight path restored.

[2]    A three-day hearing of the substantive application for review is scheduled to begin on 12 May 2025. Plane Sense has now applied to adjourn the hearing. Given the relative urgency of the application it wishes to have it determined on the papers. The three respondents oppose the adjournment. They say Plane Sense’s difficulties can be accommodated by an enlargement of the time for the filing of the applicant’s reply evidence and submissions. If Plane Sense is not able to proceed with the hearing for whatever reason, they say the proceedings should be discontinued.

Background

[3]    The proceeding was filed in July 2024. In October 2024 a three-day fixture starting on 12 May 2025 was scheduled at the parties’ request. They then worked toward various interlocutory milestones to ready the case for hearing. This included the provision of a record of decision for all three respondents in December 2024, and the filing of evidence in support of the application in January 2025. This was to be followed by the evidence for the respondents, due according to the existing timbale on Monday, 31 March 2025. In the end the provision of the respondents’ evidence was not completed until Friday, 4 April 2025.1

[4]    The applicant was then due to file any reply evidence by 11 April 2025. On   7 April it filed a memorandum seeking an adjournment of the May hearing on the basis of the four-day delay in the completion and filing the respondents’ evidence. In a minute of 8 April 2025, I declined to adjourn the hearing. In doing so I noted there were still almost five-weeks before the hearing and encouraged the parties to resolve their differences by settling an alternative timetable. I reserved leave for the applicant to apply formally for an adjournment should that be required.

1      The respondents say the bulk  of  their  evidence  was filed  on  time or very  shortly  after  the 31 March 2025 deadline, with only some incidental factual evidence following on Friday, 4 April.

[5]    Subsequently, the respondents advised the applicant they were prepared to extend the time for the provision of the applicant’s reply evidence and submissions until 28 April 2025. In reply, on 11 April 2025 the applicant advised the respondents by email that:

(a)the workload to meet the respondents’ proposed revised timetable exceeded the capacity of its two pro bono counsel (with very limited law firm support due the applicant’s financial situation);

(b)a combination of the late arrival of the respondents’ affidavits and the volume and complexity of that evidence meant the applicant’s experts “have to be allowed whatever time they need to prepare their affidavits.” This appears to be in large part because the applicant’s expert witnesses are also providing pro bono services, which now involves them fitting in the applicant’s work around other professional commitments; and

(c)the respondents should “take this email as formal notification that Plane Sense is not in a position to proceed on the fixture date. We will aim to file affidavit evidence as early as possible next week in support of the adjournment application.”

[6]    Subsequently the applicant filed a notice of interlocutory application seeking an adjournment accompanied by an affidavit in support. The respondents sought an urgent teleconference to determine the application and the status of the May trial given the impending Easter vacation, while the applicant did not consider a conference was required and invited a determination on the papers.

The application for an adjournment

[7]    As noted, in a memorandum of counsel of 7 April 2025 the primary ground advanced in support of an adjournment was the late filing of all of the respondents’ evidence. That ground alone did not in my view support an adjournment in the interests of justice.

[8]    In a subsequent memorandum of counsel of 15 April 2025, and in the joint affidavit of Ms Picker and Ms Steel, the grounds advanced to support an adjournment have been expanded. Plane Sense now submits:

(a)The subject matter is highly technical and outside the ordinary knowledge of the Court. As a result, expert evidence from a number of specialist disciplines is necessary to determine whether the flight path decisions are irrational or not.

(b)The respondents’ timetable delays (both in relation to provision of their records of decision and evidence) together with the complexity and volume of their evidence has affected the applicant’s ability to proceed.

(c)This is compounded by the pro bono basis on which both the services of counsel and all but one of the applicant’s experts are provided. There is simply insufficient time and resources given other commitments to ready the case for hearing next month.

(d)It is not in the interests of justice for the respondents to “leverage” their own difficulties with timetable compliance to pressure the applicant to proceed when it is not in a position to do so, or to discontinue its proceeding.

(e)The balance of convenience favours an adjournment, in that the added delay to trial will not seriously affect the respondents but the ongoing effects of overflights that will result from an adjournment will continue to cause harm to residents.

[9]    In response the respondents say their own delay in filing evidence can be accommodated by the extension of time offered to the applicants to complete the necessary steps. The appropriate course is to proceed with the hearing and if the applicant is for whatever reason unable to do so the proceeding should be discontinued.

Principles

[10]Rule 10.2 of the High Court Rules provides that:

10.2     Adjournment of trial

The court may, before or at the trial, if it is in the interests of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just.

[11]   As I have said previously,2 r 10.2 confers a broad discretion on the Court. The following principles help inform its application:

(a)The interests of justice require consideration of not only the interests of the parties before the Court, but also of those awaiting a hearing who will suffer delay to their own cases should an adjournment be granted.

This reflects the public interest in the efficient use of court resources.3

(b)As between the parties, the decision to grant or decline an adjournment is essentially a balancing exercise. It involves a consideration of the prejudice that will accrue to the applicant as well as the harm to the respondent if an adjournment is granted or denied.4

(c)A further relevant factor is whether the applicant has acted reasonably and done everything practical to avoid the need for an adjournment.5

(d)The strength of the reasons in support of the application, and the prejudice said to follow from continuing with the trial, is a material factor.6

(e)Also relevant is the right of the parties to a fair trial and the need for

2      Poutama Kaitiaki Charitable Trust and Pascoe v Taranaki Regional Council [2022] NZHC 628 at [38]–[39]. See also McGechan on Procedure (online ed, Thompson Reuters) at [HR 10.2.03].

3      Cygnet Farms Ltd v ANZ Bank New Zealand Ltd [2016] NZHC 1945 at [8], approving

Commissioner of Inland Revenue v Patel [2013] NZHC 477.

4      O’Malley v Southern Lakes Helicopters Ltd HC Christchurch CP513/89, 4 December 1990, at 1–2.

5      Shanghai Neuhof Trade Co Ltd v Zespri  International Ltd  [2019] NZHC 3479 at [15]. See also

Gray v Thom [1997] NZFLR 328.

6      So it has been recognised that the late illness of a party or their witness, or counsel, may be a proper ground for an adjournment. See Feasey v Dominion Leasing Corp Ltd [1974] 1 NZLR 593 (SC) at 595–596; and Hamilton v Papakura District Council (1997) 11 PRNZ 43 (HC).

resolution of the proceedings, including the likely impact of further delay on the quality of the evidence and the difficulties of reorganising witnesses for a later trial date.7

Consideration

[12]   By a narrow margin, I have concluded that an adjournment should be granted. I state my reasons briefly.

[13]   First, it seems the predicament the applicant finds itself in is largely of its own making. It sought and confirmed the May 2025 trial date. It was given the option, by Boldt J in February 2025, of adjourning the hearing and using part of the hearing time to pursue an application for tailored discovery. It elected to abandon its application for discovery to preserve the May trial date. Having done so, it now says it is unable to complete the work necessary to be ready for the trial.

[14]   Second, the provision of pro bono services to a litigant is not a proper basis on which to expect a greater allocation of public resources from the Court. All litigants, whether paying for services or not, are expected to diligently advance their proceedings. If their proceedings are highly technical, and there are resource limitations, that is a matter that ought to be considered before a fixture is allocated. There is now a real prospect that the time allocated to hear the applicant’s case will not be fully utilised on other matters.

[15]   Finally, however, it seems apart from the impact on third parties before the court there is limited prejudice to the applicants if the trial is delayed. It is for this reason alone that I am satisfied the interests of justice favour an adjournment.

Conclusion and result

[16]   The application for an adjournment is granted. The three-day fixture commencing on 12 May 2025 is vacated.

7      Shanghai Neuhof Trade Co Ltd, above n 5, at [15].

[17]   Costs on the adjournment are reserved, as are all other orders consequent on the adjournment.

[18]   The parties are to cooperate in the preparation of proposed timetabling orders that will advance the case to trial. A joint memorandum of counsel should be filed by 2 May 2025 addressing future steps. In the event of disagreement, the memorandum should identify the different position of the parties. However, given the added delay that will now result, and the respondents’ concerns about the scope and admissibility of the applicants’ expert evidence and its likely impact on the duration of the trial, it may be appropriate to schedule an interlocutory hearing to determine that question before the evidence is completed and a new trial date scheduled. That is a matter for consideration at a later date.

Isac J