Poutama Kaitiaki Charitable Trust v Taranaki Regional
[2022] NZHC 628
•30 March 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-15
[2022] NZHC 628
BETWEEN POUTAMA KAITIAKI CHARITABLE TRUST AND D & T PASCOE
Appellants
AND
TARANAKI REGIONAL COUNCIL
First Respondent
NEW PLYMOUTH DISTRICT COUNCIL
Second RespondentWAKA KOTAHI NZ TRANSPORT AGENCY
Third Respondent
TE RŪNANGA O NGĀTI TAMA TRUST
Section 301 Party
Hearing: 18–19 October 2021 Appearances:
M Gibbs and R Gibbs for Poutama Kaitiaki Charitable Trust (until withdrawal from the hearing on 18 October 2021)
S J Grey for D and T Pascoe (granted leave to withdraw on 18 October 2021)
D Allen, C A Easter and T Ryan for Third Respondent
P F Majurey and V N Morrison-Shaw for Te Rūnanga o Ngāti Tama Trust
Judgment:
30 March 2022
Reissued:
8 April 2022
JUDGMENT OF ISAC J
[Reasons for recusal and adjournment]
POUTAMA KAITIAKI CHARITABLE TRUST AND PASCOE v TARANAKI REGIONAL COUNCIL [2022] NZHC 628 [30 March 2022]
Introduction
[1] This proceeding concerns an appeal from decisions of the Environment Court.1 In another judgment delivered today I have dealt with the merits of the appeal.2 This judgment deals with two remaining procedural issues. They are:
(a)an application by Poutama Kaitiaki Charitable Trust (Poutama) that I recuse myself from hearing their appeal; and
(b)an application made by the appellants at the hearing for an adjournment.
[2]I declined both applications. I now set out my reasons.
Application for recusal by Poutama
First Gas Ltd v R V & P J Gibbs Family Trust
[3] On 2 July 2021 I heard an urgent application by First Gas Ltd against the Trustees of the R V & P J Gibbs Family Trust (Gibbs Family Trust) concerning a repair of the Maui pipeline. The pipeline traverses a farm in northern Taranaki owned by the R V & P J Gibbs Family Trust. The farm is subject to a registered statutory easement in favour of First Gas under the Petroleum Act 1937. The Trustees named as defendants in the First Gas proceeding were Mr Russell and Ms Parani Gibbs, and Mr Leigh Horton.
[4]I granted an interim injunction in a judgment of 9 July 2021.3
[5] Subsequently, First Gas sought to advance its underlying proceeding to a substantive fixture. A fixture was then scheduled to commence on 20 September 2021.
[6]On 9 September 2021 I issued a minute in the following terms:
1 Director-General of Conservation v Taranaki Regional Council [2021] NZEnvC 27 [second interim decision]; Director-General of Conservation v Taranaki Regional Council [2021] NZEnvC 40 [final decision].
2 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2022] NZHC 629.
3 First Gas Ltd v Gibbs [2021] NZHC 1722.
I understand Mr Paul Goodeve is the Chief Executive Officer of the plaintiff company. He is not a witness in the proceeding, but his name appears on a small number of emails that are in evidence.
I had not reflected on this in terms of the Recusal of Guidelines before now.
To the best of my recollection, I acted for Powerco in relation to one matter on instructions from Auld Brewer Mazengarb & McEwen while I was a partner at Fitzherbert Rowe and, briefly, at Gibson Sheat. I believe the relevant period was between 2010 or 2011, and the first part of 2013. At some point during this period I recall Mr Goodeve was involved for Powerco either as one of its witnesses, or as a representative of Powerco, where he worked. He attended a hearing or possibly two hearings, at which I appeared as counsel for Powerco. I dealt with Mr Goodeve in those circumstances.
I cannot recall the last time I spoke with Mr Goodeve. It is likely to be at least eight years ago. And as I have noted, my instructions in relation to the case came from another firm of solicitors, who acted for Powerco generally.
Having now considered my limited involvement with Mr Goodeve against the Guidelines, I would not expect there would be any cause for concern for either party, but out of an abundance of caution I raise it now.
Should either party wish to raise the question of recusal with me, I ask them to file a memorandum by noon on 10 September 2021, setting out their position and the reasons for it. I also note that if recusal is raised and I consider (for reasons currently unknown to me) that I ought to recuse myself, that will not affect the trial proceeding on 20 September. Another judge will be allocated.
[7] In a memorandum of 10 September 2021, Mr Russell Gibbs made an application on behalf of the Gibbs Family Trust that I recuse myself. The basis for the application was unusual. The Trust said it intended to call Mr Goodeve as its witness in the proceeding. It submitted that as a witness of disputed facts, given my former acquaintance with Mr Goodeve, a properly informed lay observer would apprehend that I might not bring an impartial mind to the hearing.
[8] As I had noted in my former minute, my limited contact with Mr Goodeve was historical. I did not consider that the nature of that limited acquaintance was such that a properly informed lay observer would apprehend a potential appearance of bias. Nor did I consider my limited acquaintance would cause a properly informed lay observer to apprehend I would be unable to deal with any evidence from Mr Goodeve in an impartial manner. However, as I had already noted in my previous minute, another Judge was available to conduct the trial. Accordingly, in a minute of 13 September 2021 I said:
Mr Gibbs’ memorandum requests that I recuse myself. The ground advanced in support is that the defendants intend to subpoena Mr Goodeve to give evidence of disputed facts. Mr Gibbs goes on to say that as Mr Goodeve is someone known to me and about whom “Judge Isac has formed a view, being a former client”, the defendants are apprehensive that I may not bring an impartial mind to the issues for determination at the trial.
Some of the suggestions in Mr Gibbs’ s memorandum require correction. For instance, Mr Goodeve has never been a client of mine. Nor did I deal with him during the period 2010 and 2013. My recollection of the nature of my contact with him is instead set out in minute No. 6. Finally, I have not formed a view of Mr Goodeve incompatible with my judicial oath.
Be that as it may, and only because the defendants are calling Mr Goodeve as their witness on matters of disputed fact, while grounds for recusal are not made out, I consider the preferable course is to have another judge assigned to the trial. I have asked the scheduling manager to do so.
[9] Grice J subsequently undertook the trial, granting a final injunction.4 From a review of her judgment it does not appear that Mr Goodeve was called by the Gibbs Family Trust as a witness.
Recusal application in this proceeding
[10] In a memorandum of 14 October 2021, Mr Haumoana White on behalf of Poutama sought my recusal in relation to the current proceeding.
[11] The essence of his application was that during the Gibbs Family Trust litigation against First Gas I made “a number of unwarranted criticisms” of the Gibbs Family Trust.
[12] Mr White takes issue with three points in my judgment recording its procedural history, two of which appeared in an appendix to the judgment. As I said in the appendix:5
It is helpful to record events leading up to the hearing of the application and those following shortly thereafter, in response to a submission by [the Gibbs Family Trust] that First Gas’ provision of a synopsis of submissions in support
4 First Gas Ltd v Gibbs [2021] NZHC 3309.
5 First Gas Ltd v Gibbs, above n 3, appendix at [1]. The procedural background was also summarised in my subsequent judgment dealing with the Trust’s application for leave to defend the proceeding having failed to file a statement of defence in accordance with the High Court Rules 2016, and for an adjournment of the trial: First Gas Ltd v Gibbs [2021] NZHC 2425 at [6]– [10].
of its application on 1 July gave rise to a breach of natural justice and other unfairness to the [Trust].
[13]The three points Mr White contends I got wrong are:
(a)At [20] of the appendix to the judgment, I recorded that the Trustees had not made a request on 23 June 2021 for a further extension of time to file evidence that had not, contrary to the High Court Rules 2016, been filed with a notice of opposition. Mr White submits that I was wrong to say this because at 5.01 pm on 23 June, Russell Gibbs had emailed the Court seeking a further extension of time to file his affidavit;
(b)Second, at [20] of the appendix, I recorded that the Trustees had not filed their evidence until 12.07 pm on 28 June 2021. Mr White points to an email indicating the evidence was in fact filed at 12.06 am on 28 June 2021. So my comment that the evidence had been filed at
12.07 pm on 28 June was “simply untrue”;
(c)Finally, at [5] of the judgment, I recorded that following the hearing of First Gas’ application on 2 July 2021, I received unsolicited submissions and further materials from the Trustees. Mr White claims that I had in fact requested that “only the Plaintiff was to file a brief summary of the relevant provisions and repeal history of the Petroleum Act 1937, and a copy of the repealed Act.” First Gas, it is said, had failed to draw my attention to a relevant provision in the Petroleum Act, and the Trust had done so.
[14] Mr White submits that my conclusions on these procedural points were “simply untrue” and amounted to unwarranted criticisms. On that basis he submitted that “[w]e do not believe we got a fair hearing.”
[15] It is unclear who the “we” in this context is. The First Gas litigation involved the trustees of the Gibbs Family Trust, who are Russell Gibbs, Parani Gibbs and Leigh Horton. Nevertheless, Mr White concluded by saying that:
This case essentially involves the same parties, being Poutama and Poutama hapū and whānau, by way of the Poutama Kaitiaki Charitable Trust.
Applicable principles
[16]The general principles I apply are these:6
1.1A judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist.
1.2A judge should recuse him or herself if, in the circumstances, a fair- minded, fully informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
1.3The standard for recusal is one of “real and not remote possibility”, rather than probability.
1.4The test is a two-stage one. The judge must consider:
1.4.1First, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and
1.4.2Second, whether there is a “logical and sufficient connection” between those circumstances and that apprehension.
1.5The question of recusal is for the judge hearing the case. Some of the matters the judge should consider are:
1.5.1A judge should apply the above principles firmly and fairly and not accede too readily to suggestions of bias.
1.5.2A judge should be mindful of the burden that passes to other judges if the judge recuses him or herself unnecessarily.
1.5.3A judge is not required to recuse him or herself merely because the issues involved in a case are in some indirect way related to the judge’s personal experience or that the judge has previously dealt with the case.
1.5.4The making of a complaint to the Judicial Conduct Commissioner against a judge does not of itself serve to disqualify the judge from hearing cases involving the complainant.
1.5.5If, after considering all relevant circumstances, there is doubt about whether there may properly be an appearance of bias, it may be prudent for the judge to decline to sit in that case.
6 High Court Recusal Guidelines 2017 at [1.1]–[1.7].
1.6Conflicts of interest can arise in a number of different situations. A judge should be alert to any appearance of bias arising out of connections with litigants, their legal advisors or witnesses.
1.7The apprehension of bias is case dependent. The fact that a particular relationship falls outside the examples in these guidelines does not automatically mean that there cannot be a reasonable apprehension of bias in the particular circumstances of the case at hand.
Consideration and result
[17] I begin by considering what it is said that might lead to a reasonable apprehension by a fully informed observer that I might decide the case other than on its merits. Here, Mr White identifies three points recorded in the appendix to my interim injunction decision which, he says, were simply untrue. Those points are summarised above at [13].
[18] The relevant context for my comments appears at [10]–[20] of the appendix. I do not repeat it here, other than to note it was necessary to record the procedural history leading up to and following the hearing of the interim injunction because of various claims of procedural unfairness made by the Trustees that I found lacked merit.
[19] The essence of the points raised by Mr White is that I made a mistake in the procedural history recorded at [20] of the appendix. That submission may be correct in relation to the first two points but it is not necessary to reach a view on them because the claimed errors could not lead to a reasonable apprehension by a fully informed observer that I might decide the present case other than on its merits.
[20] First, the claimed errors appear in an appendix setting out the procedural history, and did not form part of the reasons for the decision.
[21] Second, Mr White does not take issue with the rest of my record of the procedural history, and nor could he. The central point — that the Trustees of the Gibbs Family Trust did not file evidence in accordance with their obligations in the High Court Rules leading to difficulties for First Gas filing its submissions ahead of the hearing — is not challenged.
[22] Finally, alleged factual errors of the trivial nature identified and relating to the procedural history could not leave a fully informed observer with a reasonable apprehension of bias.
[23] Turning to the second limb of the test, I do not consider there is a sufficient connection between the circumstances identified by Mr White in the First Gas litigation and an apprehension I might not bring an impartial mind to Poutama’s appeal.
[24] The parties to the two sets of litigation are not the same. While it is clear Ms Marie Gibbs and Mr Russell Gibbs have some connection to both, the real question is the nature and extent of any connection between Poutama and the Gibbs Family Trust. Given one is a family trust owning a specific piece of land involved in proceedings against First Gas concerning the Maui pipeline, and the other is said to be a charitable trust claiming interests in other lands involving different parties and concerning a proposal to upgrade a section of state highway, there is no logical connection between the identified circumstances and the claimed apprehension.7
[25]For these reasons I declined Poutama’s recusal application.
Application for adjournment after commencement of hearing
Procedural history
[26] The decisions under appeal were delivered by the Environment Court on 10 March8 and 1 April 20219 respectively. A notice of appeal was filed by the
7 In Director-General of Conservation v Taranaki Regional Council [2018] NZEnvC 203 at [332]– [358], the Environment Court found that Poutama is not an iwi or iwi authority. The Court went on to observe that Poutama is a collective comprised of both Māori and pākeha (Māori ancestry is not a requirement), Poutama has a register of hapū (although a majority appear to be inactive), being a kaitiaki of Poutama land is voluntary (no ancestral connection is necessary), and neighbouring iwi do not recognise Poutama as an iwi. These findings were upheld by the High Court in Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159 at [96]–[134], and then by the Supreme Court in declining leave for a direct appeal from the High Court in Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZSC 87. The Environment Court made similar findings regarding the status of Poutama in its subsequent decision in Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZEnvC 165 at [36]–[101].
8 Second interim decision, above n 1.
9 Final decision, above n 1.
appellants on 31 March 2021 in relation to the interim decision, and an amended notice of appeal was filed on 22 April 2021, following the Environment Court’s final decision earlier that month.
[27] On 27 April 2021, Gwyn J conducted a teleconference with counsel for Poutama, Ms Grey, and Mr and Mrs Pascoe in person. In a minute of 29 April 2021, her Honour noted that the third respondent, Waka Kotahi, had sought a priority fixture and that a hearing was available on 23 and 24 August 2021 for that purpose. As her Honour noted in her minute:10
The appellants strongly argued that an August hearing, and the proposed timetable leading up to that hearing, is simply not realistic for the appellants. They are also involved in a Public Works Act (PWA) consultation process with LINZ, which has very recently restarted, and is very time consuming. Although Ms Grey is acting as counsel, the appellants are conducting much of the preparation for that process, as well as for this appeal, themselves, in addition to carrying out their usual jobs.
[28] Having considered the concerns of the appellants with an August fixture, Gwyn J concluded:11
I indicated to the parties that an alternative fixture date of 19 and 20 October 2021 was available. I acknowledged that it is the appellants’ responsibility to conduct their appeal in an expeditious manner. However, little purpose is served by ignoring the appellants’ submission that they simply do not have the resources to meet a somewhat expedited timetable for this matter, in addition to dealing with other, related processes.
[29] Gwyn J also went on to note at [9] of her minute that following the teleconference Waka Kotahi had filed a memorandum setting out the impact of a delay of the hearing from August to October. The delay would defer the construction for a further “full construction season”. Despite this, her Honour concluded:12
I acknowledge Waka Kotahi’s concerns, but for the reasons I have already canvassed I do not think it is feasible to allocate an August hearing date. However, I emphasise to the appellants their responsibility to advance their appeal expeditiously.
10 Poutama Kaitiaki Charitable Trust and D & T Pascoe v Taranaki Regional Council & Ors HC New Plymouth CIV-2021-443-15, 29 April 2021 at [4].
11 At [7].
12 At [10].
[30] The appeal then came back before Gwyn J following an exchange of memoranda addressing a timetable needed to ready the appeal for a hearing in October 2021. In a minute of 18 May 2021, her Honour made timetabling directions by consent requiring the appellants to file and serve a common bundle of all relevant documents not later than 3 August 2021. The minute noted that Waka Kotahi had offered to assist the appellants compile the bundle “subject to the appellants strictly complying with the timetabling directions and timeframes for information to be provided for the common bundle”. A direction was made requiring the appellants to file and serve their submissions and chronology no later than 24 August 2021.
[31] In the end, Waka Kotahi prepared and filed the electronic case on appeal, and the appellants’ submissions were filed on 28 September 2021.
[32] On 12 October 2021, Cooke J convened a further teleconference with counsel and the parties to make sure that arrangements were in place for the hearing, particularly in light of the COVID-19 measures then in place. At that point there was no indication by the appellants that there was any risk to the 18 October fixture.
[33] I then conducted a further teleconference with counsel and the parties on Friday, 15 October 2021. That was the last working day before the appeal hearing. Again, there was no suggestion by the appellants that an adjournment would be sought.
[34] When the hearing commenced on 18 October, Ms Grey sought an adjournment. She advanced two grounds in support:
(a)First, the day before the hearing her clients had made a late “discovery” and, as a result, laid a complaint with New Zealand Police concerning an allegation of perjury and perverting the course of justice. The police complaint and any investigation needed to be completed before the appeal could proceed.
(b)Second, because various maps of Waka Kotahi’s proposed work were not available or were misleading, the hearing could not proceed.
[35] I declined to grant an adjournment and then called on Ms Grey to begin her submissions in support of her clients’ appeal. Ms Grey sought an adjournment to take instructions, which I also declined. She then advised that she was unable to proceed and would need to seek leave to withdraw. She said she had no instructions to proceed. I then granted Ms Grey leave to withdraw.
[36] I then heard from Ms Marie Gibbs, who was the person appearing for Poutama. She proceeded to make submissions in keeping with Ms Grey’s, and also sought an adjournment. When this was declined, she confirmed her instructions were that Poutama was not in a position to proceed with the hearing.
[37] Not long after this Ms Gibbs and Ms Grey left the hearing by disconnecting their VMR connection. At my direction the registrar invited them to re-join the hearing to observe the submissions taking place. Ms Grey and Ms Gibbs did not re-join the hearing, and the appellants chose to take no further part in their own appeal.
Applicable principles
[38]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.
[39] This confers a broad discretion on the Court.13 Nevertheless, the following principles 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.14
(b)As between the parties, the decision to grant or decline an adjournment
13 McGechan on Procedure (online ed, Thompson Reuters) at [HR 10.2.03].
14 Cygnet Farms Ltd v ANZ Bank New Zealand Ltd [2016] NZHC 1945 at [8], approving
Commissioner of Inland Revenue v Patel [2013] NZHC 477.
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.15
(c)A further relevant factor is whether the applicant has acted reasonably and done everything practical to avoid the need for an adjournment.16
(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.17 So too is the presence of an offer by the applicant to pay the wasted costs of the respondent should an adjournment be granted. An adjournment may be granted on conditions, including a requirement to pay the wasted costs of the other party.
(e)Also relevant is the right of the parties to a fair trial and the need for 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.18
The application
[40] As noted, Ms Grey and then Ms Gibbs developed two primary submissions in support of the application for an adjournment.
[41] First, due to a late discovery by the appellants, a complaint had just been made with the police. It seems the complaint relates to an allegation of perverting the course of justice said to have arisen at some point during the hearings before the Environment Court due to non-disclosure by Waka Kotahi of information to the appellants, and the Environment Court, about an alternative “online” route. Ms Grey submitted that this alternative route arose in July 2017 but “for some reason” that alternative route was
15 O’Malley v Southern Lakes Helicopters Ltd HC Christchurch CP513/89, 4 December 1990, at 1–2.
16 Shanghai Neuhof Trade Co Ltd v Zespri International Ltd [2019] NZHC 3479 at [15]. See also
Gray v Thom [1997] NZFLR 328.
17 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; Hamilton v Papakura District Council (1997) 11 PRNZ 43 (HC).
18 Shanghai Neuhof Trade Co Ltd, above n 16, at [15].
never disclosed in any of the previous Environment Court proceedings. She said the issue only became known to her clients “very recently” as a result of an Official Information Act request to Land Information New Zealand. For this reason she submitted that it would be inappropriate and “contrary to justice” to proceed with the hearing until the police complaint was addressed and there had been an opportunity to explore it properly.
[42]Second, Ms Grey submitted that:
…there are some other matters of concern which have been of concern when I appeared in the High Court proceeding last time as well which related to the inadequate map setting out exactly what was proposed by Waka Kotahi and the different maps between what have been provided by Waka Kotahi for the resource consent process compared to the High Court – sorry, the Public Works Act process, last time without a map of what was being proposed, in closing submissions the maps were changed and after closing submissions the maps were changed again. Since then the matters have been changed again, your Honour, and so as a combination of these matters, your Honour, I’m unable to proceed today with my clients.
[43] Ms Grey and Ms Gibbs submitted that the “issue of non-disclosure” was a “pattern of behaviour” by Waka Kotahi.
[44] Waka Kotahi and Ngāti Tama opposed the application. In essence they said the allegations of perverting the course of justice or fraud lacked any merit but, in any case, were irrelevant to an appeal on a point of law.
[45] Mr Allen emphasised that the application was “late … breaking news”. And, given the importance of the roading upgrade to the health and safety of road users, and regional economic resilience, the matter should proceed.
[46] Mr Majurey in turn submitted that the eleventh-hour application was a strategy to derail the appeal. He submitted that the assertion that the police complaint followed from a recent discovery was surprising given that the online option mentioned in the appellants’ submissions (as an alternative route) was disclosed in an Official Information Act response from LINZ provided to the appellants in June 2021, four months before the appeal hearing.
[47] In response to the contention that inaccurate or misleading maps was a reason for adjourning the appeal, Mr Majurey noted this issue had been raised by the appellants in the previous appeal before Grice J, and were noted in passing in her judgment.19 So again, this was not a recent discovery or claim by the appellants, and if it were genuinely an issue it could have been raised with the Court months earlier.
Consideration
[48] Having heard from the appellants, Waka Kotahi and Ngāti Tama, I was not satisfied that the interests of justice supported an adjournment. There were five reasons for this:
(a)the grounds advanced were insubstantial and lacked a connection to the need for an adjournment;
(b)there was no adequate explanation for the late application;
(c)there would be no prejudice to the appellants if the appeal continued;
(d)prejudice to Waka Kotahi and Ngāti Tama would be significant; and
(e)the overall interests of justice did not favour an adjournment.
The grounds advanced were insubstantial and lacked a connection to the need for an adjournment
[49] The two grounds advanced in support of the adjournment were so vague and insubstantial that they defied any meaningful consideration. They also lacked a connection to any need to adjourn the hearing.
[50] Both Ms Grey and Ms Gibbs made bald allegations of perjury and perverting the course of justice based on an asserted non-disclosure of an online route, but no effort was made to provide evidence to support these late claims. As a result the Court
19 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159 at [257]– [261].
was unable to make its own assessment of their merits. Nor was any evidence provided to explain why the issue had arisen so late, or who was responsible for that situation.
[51] As a matter of respect and courtesy both to the Court and the other parties, one might have expected that such serious allegations of criminality would have been supported by written submissions as well as evidence, rather than the broad-brush strokes that were used.
[52] It is also questionable how the outcome of a police investigation into alleged criminal offending could ever be relevant to the determination of the questions of law raised in the appeal. If the appellants’ concern is an alleged non-disclosure of relevant evidence to the Environment Court, the correct procedure would have been an application for the admission of new evidence in support of the appeal. Whether any criminal charges can or should attach to the alleged non-disclosure is not relevant to the determination of the appeal. And as I have noted, while it seemed implicit in the appellants’ application that the “missing” evidence was now in their possession, it was not provided to me.
[53] Overall, the lack of evidence to support the application, and the lack of particularity in submissions, robbed it of any merit.
No adequate explanation for the late application
[54] Married to the last point was the failure of the appellants to provide any coherent explanation for the last-minute nature of their discovery.
[55] Ms Grey’s submissions suggested that while the appellants had the relevant information in their possession for some unidentified period, the penny only dropped the night before the hearing. No evidence — or submissions — were provided to demonstrate why this “discovery” could not have been made and addressed earlier. Nor was any attempt made to indicate when the information came into the possession of the appellants. According to Mr Majurey’s submission, it would seem the appellants received the information on which their allegations are based in June 2021, four months before the hearing.
[56] It is not a surprise, then, that Ngāti Tama’s counsel suggested that the timing and manner in which the application was made is suggestive of a strategy to derail the appeal process. I agreed with that submission.
No prejudice to the appellants if the appeal continued
[57] For the reasons noted, it seems that the information claimed by the appellants to be critical to the determination of the appeal was already in their possession. No prejudice arises from proceeding with the appeal before resolution of their police complaint.
[58] I also accepted the submission of counsel for Waka Kotahi that, in the event the police decide to investigate the appellants’ allegations, and in the event any such investigation revealed additional evidence relevant to the current appeal, those would be matters that could be addressed once the information is available. Applications for recall or for the admission of fresh evidence on further appeal were obvious procedural mechanisms available to the appellants. Rather than proceed with the appeal on that basis, the appellants chose to withdraw from the hearing.
Prejudice to Waka Kotahi and Ngāti Tama would be significant
[59] The other parties to the appeal had completed all of the necessary preparation for the hearing and indeed in the case of three counsel for Waka Kotahi had travelled from Wellington to New Plymouth for a two-day hearing.
[60] More significantly, Waka Kotahi submitted that the current State Highway 3 alignment subject to the appeal is not fit for purpose,20 and presents health and safety concerns for road users. Further delay will affect or delay the economic benefit to the Taranaki region and wider economy of an improvement to the roading design.
[61] And for Ngāti Tama, who through a lengthy process of consultation with Waka Kotahi have reached an agreement involving the acquisition of part of their Treaty settlement lands for the project, coupled with ecological mitigation programmes,
20 As found by the Environment Court in its first interim decision, Director-General of Conservation v Taranaki Regional Council [2018] NZEnvC 203, at [4]–[5] and [427]–[436].
further delay and wasted costs were unwarranted given the iwi was ready to proceed with the appeal.
[62] Overall, I found the prejudice to Waka Kotahi and Ngāti Tama was such that a last-minute adjournment could only be justified in the most compelling and clear circumstances. As I have found, those circumstances did not exist.
Overall interests of justice did not favour an adjournment
[63] Finally, the overall interests of justice, including those of other litigants before the Court, did not favour an adjournment. The appeal had been set down since April 2021, some six-months before the hearing. I was not persuaded that the matters on which the adjournment had been advanced held any merit, or that the absence of an adjournment would cause any prejudice to the appellants in the appeal.
[64] I considered the public interest favoured the efficient use of court resources, and the wasted public resources stemming from an adjournment would be unwarranted.
Conclusion and result
[65]For these reasons I declined the appellants’ application for an adjournment.
[66] I would not expect the respondents to seek costs in relation to the applications determined in this judgment given they were not required to respond to them outside the appeal hearing itself. Should they nevertheless wish to pursue an application for costs, memoranda should be filed. Any submissions by the appellants in reply should be filed 10 working days thereafter.
Postscript
[67] After I had declined Mr and Mrs Pascoe’s application for an adjournment, I called on Ms Grey to begin her submissions in support of their appeal. Ms Grey sought an adjournment to take instructions. When I declined that request and called on her again to begin her submissions, she advised me that she had no instructions to proceed with the appeal.
[68] That is an unusual situation for counsel to find themselves in having entered an appearance at the hearing.
[69] An inference that could be drawn from this sequence is that Ms Grey had been instructed by her clients that she was not to continue with their appeal before the hearing commenced and, therefore, before the result of their application for an adjournment was known.21
[70] This impression is reinforced by the appellants’ decision to arrange a meeting with police during the afternoon of the first day of the hearing. That arrangement — apparently made before the start of the hearing — would appear to be incompatible with an intention to participate in the hearing.
[71] I have recorded these preliminary observations as they may have costs or other consequences, which can be addressed later.
Isac J
Solicitors:
Buddle Findlay, Wellington for Waka Kotahi
Atkins Holm Majurey, Auckland for Te Rūnanga o Ngāti Tama Trust
21 Either the adjournment would be granted, and the appeal would not proceed, or the adjournment would be declined, and Ms Grey and her clients would not participate in the appeal.
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