Save Environmentally Endangered Soil and Water Incorporated v Fulton Hogan Limited
[2025] NZHC 435
•7 March 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-277
[2025] NZHC 435
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016 IN THE MATTER
of an application for judicial review
BETWEEN
SAVE ENVIRONMENTALLY
ENDANGERED SOIL AND WATER INCORPORATED
Applicant
AND
FULTON HOGAN LIMITED
First Respondent
CANTERBURY REGIONAL COUNCIL
Second Respondent
Hearing: 4 March 2025 Appearances:
DAC Bullock and BM Jacobs for the Applicant
AC Limmer KC, RN Poutawera, SA Chidgey and JK Holt for the First Respondent
PAC Maw for the Second RespondentJudgment:
7 March 2025
JUDGMENT OF FITZGERALD J
[As to application for leave to file discovery application]
This judgment was delivered by me on 7 March 2025 at 2.00pm, pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar ………………….……………
Solicitors: Lee Salmon Long, Auckland
Tavendale & Partners, Christchurch Wynn Williams, Christchurch
To: A Limmer KC, Christchurch
SAVE ENVIRONMENTALLY ENDANGERED SOIL AND WATER INC v FULTON HOGAN LTD [2025] NZHC 435 [7 March 2025]
Introduction
[1] The applicant (SEESAW) seeks judicial review of a resource consent granted by the second respondent (the Council) to the first respondent (Fulton Hogan), for the use of groundwater for activities associated with quarrying (including dust suppression). SEESAW says that granting of the groundwater use consent was unlawful, because the Council had no power to grant a “use-only” consent under the relevant planning rules and legislation which had the effect of expanding the use of water taken pursuant to an earlier “take and use” resource consent.
[2] Background context to these proceedings is what I will refer to as the “Cloud Ocean” litigation, culminating in the Supreme Court’s decision in November 2023 in Cloud Ocean Water Ltd v Aotearoa Water Action Inc.1 SEESAW says the Supreme Court’s decision confirms that the Council had no power to issue a “use-only” consent when that use was associated with an earlier “take and use” consent.
[3] Fulton Hogan denies the Council did not have the power to grant the resource consent in issue, including on the basis that the planning rules and legislation in issue in the Cloud Ocean litigation were different to those engaged in this case.
[4] Fulton Hogan also pleads affirmative defences, and says that even if SEESAW’s ground for review is made out, the Court should decline to exercise its discretion to grant relief. Fulton Hogan emphasises that the grant of the use-only resource consent followed a lengthy and public process, including appeal proceedings in the Environment Court; that members of SEESAW were involved in that earlier consenting process (and did not raise any issue of the legality of a use-only consent); that the environmental effects of the consent were fully considered in the earlier planning processes; that significant time has passed from the granting of the consent to the commencement of these proceedings; and that Fulton Hogan has placed significant reliance on the consent in the interim. In short, as part of its affirmative defence (and position that the Court should decline to grant relief), Fulton Hogan says that it is inappropriate and too late for SEESAW to be permitted to have “another bite at the cherry” (my words), in challenging the grant of the consent.
1 Cloud Ocean Water Ltd v Aotearoa Water Action Inc [2023] NZSC 153, [2023] 1 NZLR 474 [Cloud Ocean].
[5]The hearing of the application for judicial review is scheduled to take place on
17 and 18 March 2025. On 18 February 2025, Fulton Hogan filed an urgent application for orders that SEESAW give discovery of certain documents, and gave notice to SEESAW that it intended to apply for leave to cross-examine the deponents of two affidavits filed by SEESAW in support of its application for judicial review.2 SEESAW says that the application for discovery is an abuse of process and should be struck out, and/or that leave is required to file the application in any event, and given its lateness and the unfair prejudice to SEESAW as a result, leave should be declined.
[6] Fulton Hogan subsequently filed an application for leave to pursue its discovery application, which has since been “trimmed down” from that originally filed. This judgment accordingly deals only with the question of leave. However, given the proximity of the hearing, and that on a leave application, the Court will consider (at least in a preliminary way) the merits of the proposed application, I make some observations on the merits of the discovery application which I would hope will assist the parties to take matters forward by way of agreement, or at least largely by agreement, (rather than the somewhat combative approach to date).
[7] It is first necessary to trace through the procedural history to Fulton Hogan’s discovery application, as it is crucial to why SEESAW says the application is an abuse of process.
The procedural background
The application for leave to file an amended statement of defence
[8] These proceedings were commenced by SEESAW in late May 2024. On 18 October 2024, the application for judicial review was set down for a one and a half day hearing commencing on 17 March 2025. By virtue of Rule 7.6(4A) of the High Court Rules 2016 (the Rules), that meant the close of pleadings date was 28 November 2024.
2 Though the application for leave to cross-examine is no longer pursued, at least at this time, and pending any discovery being given by SEESAW.
[9] As noted earlier, SEESAW’s application for judicial review rests on the proposition that the Council did not have the power to issue a use-only consent to Fulton Hogan. As also already noted, Fulton Hogan challenges that proposition as a matter of law, and in its original statement of defence, also pleaded affirmative defences. These focused on the rules and legislation addressed and interpreted in the Cloud Ocean litigation, but Fulton Hogan also said that if the Court found that the grant of the use-only resource consent was unlawful, the Court ought to decline to exercise its discretion to grant relief. The basis for this included that:
(a)the relevant consent is critical to Fulton Hogan’s quarrying operations;
(b)significant time has passed since the grant of the consent and the commencement of these proceedings;
(c)Fulton Hogan has taken significant steps and invested considerable funds in the interim in reliance on the consent;
(d)that a “solution” to the unlawfulness found in the Cloud Ocean
litigation is not available in this case;
(e)that the original resource consent was pursued on a notified basis, and those with an interest in the matter were provided with and took up substantial opportunities to submit on the application for a resource consent and to be involved in related processes (including appeals in the Environment Court);
(f)the potential environmental effects of the use granted under the consent in issue were fully assessed in the earlier consenting process, and relevant experts agreed on a volumetric limit for the use-only permit to ensure it would not cause adverse effects;
(g)two of SEESAW’s officers took an active part in that earlier resource consenting process and did not submit on the lawfulness, or otherwise, of a use-only consent; and
(h)SEESAW has unduly delayed in bringing this proceeding, particularly given those matters referred to at (g) above, and when the grant of a use only consent is said to have been a “live issue” in the earlier consenting process.
[10]The original statement of defence also pleaded that:
[Fulton Hogan] does not know whether other members of [SEESAW] submitted on or appeared at the hearing for the [consent], because [SEESAW] has refused to disclose who its members are.
[11] Following completion of the pleadings, the parties duly engaged in the preparation and filing of their affidavit evidence. Of some importance to the matters discussed in this judgment is an email from counsel for Fulton Hogan to counsel for SEESAW dated 27 January 2025. This was the culmination of an email chain over the prior few days, in which counsel for Fulton Hogan confirmed that it would be seeking leave to file an amended statement of defence. In terms of the chronology, this followed Fulton Hogan filing its affidavit evidence, but before the date by which SEESAW was required to file its evidence in reply.
[12] In the 27 January email, counsel for Fulton Hogan set out what it expected SEESAW’s evidence in reply would address, stating:
The membership of SEESAW is raised several times in Fulton Hogan’s pleadings. However, this has still not been provided by you or in your client’s evidence in chief. I have recently become aware the Regional Council has membership details (although has not told me what they are). It seems unnecessarily and pointlessly obstructive not to afford Fulton Hogan the same courtesy. In the same vein of openness and cooperation as you raise, I trust this information can now be forthcoming — at least in your client’s rebuttal evidence. It is also Fulton Hogan’s expectation that SEESAW’s rebuttal evidence will include discussion as to:
I. What prompted the formation of SEESAW in April last year;
II. When SEESAW was being established, what potential members were told about what SEESAW would be doing;
III. What SEESAW has done to date;
IV. Why the FH water permit is of particular interest to SEESAW.
[13] By memorandum dated 28 January 2025 (and before SEESAW’s reply evidence had been filed), Fulton Hogan sought leave to amend its statement of defence — such leave being required by r 7.7 of the Rules.3
[14] The proposed amendments (at least those relevant for the purposes of this judgment) included an additional ground for an affirmative defence, being “res judicata (along with cause of action estoppel, issue estoppel and abuse of process)”, for the reasons set out in existing aspects of the original statement of defence (summarised above), as well as that:
(a)the issuing of the use-only consent followed a high profile and publicly notified application for consents;
(b)two of SEESAW’s officers were involved in the earlier consenting process; and
(c)Fulton Hogan understood that other members of SEESAW were submitters in the earlier consenting process but information about the membership had not been provided by SEESAW.
[15] It will be appreciated that there is a reasonable degree of overlap between these proposed amendments and the matters already pleaded by way of affirmative defence in the original statement of defence.4
[16] In its memorandum of 28 January, under the heading “No prejudice to the applicant or second respondent from amendment”, Fulton Hogan noted that it had written to the applicant on 23 December 2024 foreshadowing the likelihood of Fulton Hogan seeking to amend the statement of defence. Fulton Hogan noted it had received documentation from the Council regarding historical resource consents referred to in
3 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2471 at [29].
4 The same factual matters relied on in the original statement of defence in support of the pleading that if there was unlawfulness in granting the use-only consent, the Court should nevertheless exercise its discretion to decline to grant relief, were also relied on in the proposed amended statement of defence.
the statement of claim, which also required amendments.5 Paragraph [10] and [11] of the 28 January memorandum went on to state as follows:
[10]This additional ground of affirmative defence has not necessitated the production of more or different evidence from what the First Respondent would have filed anyway. Rather, it was during the final stages of evidence preparation the First Respondent recognised the evidence could support an additional affirmative defence. The First Respondent finalised its proposed amended Statement of Defence after the evidence was finalised, served and subsequently filed with the Court on Monday 20 January 2025. The amendment of the Statement of Defence follows that.
[11]It is the First Respondent’s view the additional affirmative defence will engage additional legal argument only and will not require additional evidence or discovery beyond that which would be needed anyway, particularly in respect of the Court’s residual discretion as to whether relief should be granted.
(Emphasis added)
[17] Counsel for SEESAW filed a memorandum in response, noting the informal application for leave to file an amended pleading was very late, coming well after close of pleadings and that the purpose of a close of pleadings date is to avoid disruption to other parties’ preparation. SEESAW recorded that as a community group with limited resources the application had proved disruptive.
[18] SEESAW observed that the material said to have come from the Council requiring an amendment had been provided to all parties prior to the close of pleadings date. SEESAW’s final position, however, was that it wished to focus its limited resources on advancing its case rather than engaging in interlocutory squabbles. It said it would abide the Court’s decision on Fulton Hogan’s informal application.
Justice Mander’s decision on the application for leave
[19] Mander J dealt with Fulton Hogan’s application in a Minute issued 5 February 2025. His Honour said at [6] of his Minute:
[6] In the circumstances, I am prepared to grant leave to the first respondent. There is still some six weeks until the hearing and the new affirmative defences sought to be pleaded arise from the evidence as it currently stands. No further material is required to be adduced. It follows that the amendments will only generate further legal argument. I do not underestimate the additional work required on counsel’s part to meet these
5 These amendments are not relevant to the matters addressed in this judgment.
new issues, but, in the circumstances, I consider it best to afford the opportunity to have all relevant issues canvassed. Accordingly, the following directions are made:
(a)No formal interlocutory application is required by the first respondent seeking leave to amend its statement of defence after the close of pleadings date.
(b)The first respondent’s amended statement of defence (filed with its memorandum of 28 January 2025) is accepted for filing, notwithstanding it was filed after the close of pleadings date.
(Emphasis added)
[20]Mander J also said:
[2] … It is noted these additional affirmative defences will not necessitate any more or different evidence than is otherwise required to be filed, and that they only give rise to additional legal argument. There is no need for additional discovery or further evidence.
[21] I pause to note that counsel for Fulton Hogan did not suggest to Mander J upon the issuing of the Minute that his Honour had somehow overstated the import of the paragraphs set out at [16] above from Fulton Hogan’s memorandum of 28 January 2025. I return to this point below.
[22] The amended statement of defence was duly filed by Fulton Hogan on 30 January 2025.
[23] On 5 February 2025, SEESAW filed an affidavit in reply, sworn by one of SEESAW’s officers, Ms Penny. In her affidavit, Ms Penny (amongst other matters):
(a)confirmed SEESAW has 15 members (and named each of them);
(b)did not dispute that four of SEESAW’s members (including Ms Penny and a Mr Wood, both of whom are officers of SEESAW) participated in the earlier consenting process;
(c)stated that those four and the remaining members did not convene together as a group to discuss the quarry with each other until the formation of SEESAW was completed;
(d)stated that none of the appellants in the earlier Environment Court proceedings concerning the resource consent have any connection to SEESAW;
(e)explained that SEESAW was incorporated with the aim of achieving the purposes set out in its Constitution (which are broader than matters concerning the resource consent and the Fulton Hogan quarry);
(f)said that SEESAW came together following the Supreme Court’s judgment in the Cloud Ocean litigation “on the basis of their concerns about a range of issues, including the Fulton Hogan quarry, arising out of that judgment and other issues relating to soil and water in Canterbury”; and
(g)stated that this case is not SEESAW’s only concern or activity, and SEESAW has also been involved in the “proposed LWRP plan change
….”, and that “the issue of the Regional Policy Statement and LWRP plan change are agenda items on the forthcoming annual general meeting for SEESAW”.
[24] Ms Penny’s affidavit did not annex any documents relevant to the matters discussed above (such as SEESAW meeting agendas and minutes).
Fulton Hogan seeks discovery and leave to cross-examine
[25] On 18 February 2025, Fulton Hogan filed an urgent application for orders that SEESAW provide specified discovery and for two of SEESAW’s deponents to be cross-examined at the substantive hearing. The application for discovery was framed in broad terms, seeking discovery of the following categories of documents:
1.Documents in the possession or control of one or more SEESAW (including all members), Davina Penny, or William Woods relating to the establishment of SEESAW, including (but not limited to):
…
2.Documents in the possession or control of one or more of SEESAW (including all members), Davina Penny, or William Woods (including, but not limited to, correspondence and social media pages) about how SEESAW recruited members, including:
…
3.Documents in the possession or control of one or more of SEESAW (including all members), Davina Penny, or William Woods relating to the administration and meetings of SEESAW, including but not limited to the agenda referred to in the final paragraph of Ms Penny’s affidavit, any other meeting agendas, minutes and/or reports to members.
4.Documents in the possession or control of one or more of SEESAW (including all members), Davina Penny, or William Woods about any connections between the members of SEESAW and opposition (formal or otherwise) during the consenting process for Roydon Quarry. As an example:
…
5.Documents in the possession or control of one or more of SEESAW (including all members), Davina Penny, or William Woods relating to communications (or intended communications) to and from the Regional Council in the period between 28 November 2018 and 14 February 2025.
6.Documents in the possession or control of one or more of SEEAW (including all members), Davina Penny, or William Woods in the period starting on 26 April 2024 to date concerning any one or more of
a.plan changes proposed by local authorities;
b.resource consent applications to use water; and
c. resource consents held for the use of water, including without limitation,
d. Mr Woods’ allegations of the breach of consent conditions at Roydon Quarry;
e. any submissions or feedback from SEESAW to the Canterbury Regional Council on the plan processes referred to in the last paragraph of Ms Penny’s affidavit; and
f. any activity in relation to the resource consents referred to at footnotes 36 and 37 of Mr Kevin Bligh’s evidence dated 17 January 2025.
For SEESAW the date range for the above documents is the period starting on 26 April 2024 to date. For Ms Penny and Mr Woods the date range for the above documents is the period starting on 26 November 2018 to date.
7.Documents in the possession or control of one or more of SEESAW (including all members), Davina Penny, or William Woods concerning any correspondence with Aotearoa Water Action Incorporated. For SEESAW the date range for the above documents is the period starting on 26 April 2024 to date. For Ms Penny and Mr Woods the date range for the above documents is the period starting on 26 November 2018 to date.
[26] Three of the five categories also contained a number of “sub-categories” of documents sought, though some were in fact framed more as questions, rather than categories of documents to be disclosed. The documents sought were said to be relevant to Fulton Hogan’s affirmative defences, as well as the exercise of the Court’s residual discretion.
[27] The application referred to counsel for Fulton Hogan’s email of 27 January 2025 (referred to at [11] and [12] above), and Fulton Hogan’s position that SEESAW’s reply evidence did not fully or satisfactorily address the matters raised in that email. It stated that discovery of the documents was necessary as the relevant facts and documents were in the possession of SEESAW and not Fulton Hogan. The application referred to the significance of the matter before the Court, and the importance of the full factual picture being before the Court when making its decision on the judicial review application.
[28] While no separate application for leave to cross-examine SEESAW deponents was filed at that time, the application for discovery also noted that Fulton Hogan had put SEESAW on notice that such leave would be sought. The application stated that discovery would be a “far more efficient way” in which the Court was fully appraised of the relevant facts, as opposed to cross-examination alone.
[29] SEESAW responded to the application with a memorandum asking for that application to be struck out as an abuse of process. It noted no application for leave to file the application had been made (the close of pleadings date having passed), and that in any event, the application had come too late in the piece. The abuse of process argument centred on the basis upon which Fulton Hogan had been granted leave to file an amended statement of defence, for example, SEESAW’s memorandum stating:
Explicit representations to the Court and to SEESAW that it could (and would) prove those defences through legal submissions only on the basis of the evidence already before the Court, and without it eliciting further evidence or seeking discovery.
The “narrowed” discovery application
[30] In the course of the parties submitting on the leave application, counsel for Fulton Hogan confirmed by memorandum dated 21 February 2025 that the application for discovery is now limited to the following three categories of documents:
(a)Documents in the possession or control of SEESAW, Davina Penny or William Woods relating to the formation of SEESAW, including communications with eventual and potential members either directly or indirectly (for example, via FaceBook or other web-based platforms) (which I will call the “Formation Documents”).
(b)Documents in the possession or control of SEESAW, Davina Penny or William Woods relating to the members of SEESAW and their connection to other SEESAW members; their connection to the campaign opposing establishment of the Roydon Quarry (either formally via submissions or informally); and their connection to people involved in opposing the establishment of the Roydon Quarry, even if not members of SEESAW (which I will call the “Members’ Connections Documents”).
(c)Documents in the possession or control of SEESAW, Davina Penny or William Woods relating to what SEESAW has done to date, including meeting agendas and minutes; reports to members; communications with councils or resource consent holders; submissions on local authority plans or resource consents; communications with other persons or organisations about local authority plans or resource consents; and communications about alleged breaches of resource consent conditions (which I will call the “SEESAW Purpose Documents”).
Principles governing application for leave to file discovery application
[31] High Court Rule 7.7(1) provides that no interlocutory application may be made or step taken after the close of pleadings date without the leave of the Judge. The rationale for this rule is that late interlocutory applications can unnecessarily distract
parties from the proper preparation for the substantive hearing, and can indeed derail the timely hearing of the substantive application.
[32]The requirement for leave also applies to judicial review proceedings.6
[33] Leading commentary summarises the broad approach to applications for leave is that an applicant seeking leave will need to “surmount the three formidable hurdles” of showing that doing so would be in the interests of justice, will not significantly prejudice other parties, or cause significant delay.7 In Oraka Technologies Ltd v Geostel Vision Ltd the approach was summarised as follows:8
(a)The paramount consideration is that the parties should have every opportunity to ensure that the real controversy goes to trial so as to secure the just determination of the proceeding.
(b)Due regard must also be had to whether the proposed amendment will cause significant delay or prejudice another party.
(c)Even where serious prejudice and significant delay will arise, an amended pleading may nevertheless be permitted if the proposed claim has substantial merit and will not cause injustice to the defendants.
(d)The court should consider the merit, or absence thereof, in a proposed amended pleading.
Summary of the parties’ positions
Fulton Hogan’s position
[34] Fulton Hogan says there has been no abuse of process in the circumstances in which the discovery application has come about, and in particular, that there was no misrepresentation of the position when Fulton Hogan sought leave to file an amended its statement of defence. It notes that SEESAW’s reply evidence had not been filed by then.
6 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 3, at [29].
7 Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at r [7.7.01], citing Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA) at 385; Body Corporate 172108 v Gundry [2014] NZHC 954 at [40]; Body Corporate 355492 v Queenstown Lakes District Council [2022] NZHC 1494 at [46]; and Lyttelton Port Co Ltd v Aon New Zealand [2019] NZHC 726 at [22].
8 Oraka Technologies Ltd v Geostel Vision Ltd [2015] NZHC 991 at [17], with reference to Body Corporate 325261 v McDonough [204] NZHC 1821.
[35] Counsel for Fulton Hogan submit that in the email of 27 January 2025, Fulton Hogan had set out its expectations as to the matters SEESAW should address in its reply evidence, consistent to what it submitted was an agreed position between the parties urging a “cards face-up” approach to the litigation.
[36] Fulton Hogan submits that the December 2024 and January 2025 correspondence provides important context to the need for the discovery application. Counsel further submits that even if Fulton Hogan’s memorandum to the Court dated 28 January 2025 was interpreted as indicating no discovery would be required, matters clearly moved on in a way that was not anticipated at that time, and in particular what Fulton Hogan submits to be the vague and imprecise manner in which these matters were addressed in Ms Penny’s reply affidavit.
[37] Fulton Hogan also emphasises the range of matters that may be relevant to the exercise of the Court’s discretion on whether to grant relief even if unlawfulness is found, and that this includes unreasonable conduct on the part of an applicant or because the objection is raised too late.9 Counsel submits that the questions posed in Fulton Hogan’s 27 January email, and the facts upon which discovery is sought, are all relevant to the exercise of the Court’s discretion (as well as the additional affirmative defence).
[38] Fulton Hogan submits that there is now evidence to suggest that the membership of SEESAW is comprised of persons closely related to original submitters in opposition to the quarry proposal in a manner that suggests they have been used as proxies for those that made earlier submissions, to “have another attempt at having the quarry disestablished”. Fulton Hogan refers in this regard to the contents of an affidavit sworn by a Mr Chittock on behalf of Fulton Hogan in support of the discovery application, in which he explains that he now realises a non-submitter is a member, whereas his wife (who made a submission in opposition) is not. Fulton Hogan suggests that the membership list itself is inadequate to be able to understand the connections between SEESAW members and previous submitters. It submits that there is therefore a live issue as to whether SEESAW could have been constituted earlier and made its application earlier.
9 Citing, for example, Colley v Auckland City Council [2021] ELHNZ 227 at [128].
[39] Finally, Fulton Hogan emphasises the critical importance of the resource consent to its quarry operations, and therefore the significance of the matters presently before the Court. In that context, it submits that it is imperative that the Court have before it the full factual position that is relevant to its affirmative defences and the Court’s broad residual discretion. It also says that its discovery application is neither too late nor too prejudicial, and suggests that the timing of the application rests at the feet of SEESAW, given what it says is the inadequacies in SEESAW’s reply evidence. It also notes that at this stage, SEESAW has completed its pre-hearing steps and therefore has adequate time to address Fulton Hogan’s discovery requests.
SEESAW’s position
[40] As flagged earlier in this judgment, SEESAW submits that given the context in which Fulton Hogan was granted leave to file an amended statement of defence, the subsequent filing of the application for discovery is an abuse of process, given the concession made to the Court in order to secure leave to file the amended pleading. In particular, SEESAW says that the contents of counsel for Fulton Hogan’s email of 27 January cannot form the basis for a late application for discovery, given Ms Penny’s affidavit addresses the matters raised, and that in any event, SEESAW was not obliged to file any reply evidence, let alone reply evidence that addresses matters necessary to prove Fulton Hogan’s affirmative defences. Moreover, SEESAW submits that to the extent Fulton Hogan suggests there is a shortfall in the reply evidence filed by SEESAW, then as is the case in all proceedings, Fulton Hogan will be able to invite the Court to draw inferences from any suggested deficiency.
[41] SEESAW further submits that it is now simply too late and too prejudicial to entertain the discovery application. SEESAW says that if the documents sought are said to be relevant to Fulton Hogan’s new defences, then the application is an abuse for the reasons summarised earlier. Alternatively, if the documents sought are said to be relevant to Fulton Hogan’s other pre-existing defences, then the application could and should have been brought many months ago, and the fact Fulton Hogan waited until a matter of weeks before the hearing does not justify expedition and procedural unfairness to SEESAW. SEESAW emphasises that Fulton Hogan first wrote to SEESAW on 18 June 2024 seeking information about SEESAW’s membership, because Fulton Hogan was “interested to understand how many of SEESAW’s
members were involved in the initial resource consenting process”. While SEESAW did not provide membership details at that time, SEESAW says that it was incumbent upon Fulton Hogan to pursue its discovery application at that time, not as late as it has now done.
[42] SEESAW also notes that it has filed all its evidence, as has Fulton Hogan. It therefore says that if the discovery application is permitted to be pursued and is successful, all of that work could be prejudiced and a real risk arises as to whether the hearing can proceed as scheduled. SEESAW also points to the resource imbalance between it, as a small community based incorporated society, and Fulton Hogan, and says that in the circumstances in which Fulton Hogan’s application has been made, the financial and time burden should not fall on it.
[43] Finally, as to the merits or otherwise of the discovery application itself, SEESAW submits that any potential relevance of the documents is not clear and is set out by Fulton Hogan in vague and unparticularised terms, when there is already evidence before the Court of the matters upon which Fulton Hogan seeks discovery. It therefore says that the discovery application is a “brazen fishing expedition”. It also raises a jurisdictional issue, in terms of discovery been sought from SEESAW’s members, rather than SEESAW itself.
Discussion
[44]I have considered the application for leave against the following factors:
(a)The basis upon which Fulton Hogan was granted leave to file its amended pleading.
(b)The timing of the application.
(c)Whether the proposed discovery will give rise to significant delay or unfair prejudice to SEESAW.
(d)A preliminary view on the merits of the proposed discovery application.
[45] I then stand back and consider the overall interests of justice, including that the primary concern is that the real controversy is properly before the Court so as to secure the just determination of SEESAW’s application for judicial review.
The basis upon which Fulton Hogan was granted leave to file an amended statement of defence
[46] I am satisfied that Mander J granted Fulton Hogan leave to file an amended statement of defence on the understanding that no further discovery or evidence would be required, and that the proposed changes to the pleading gave rise to additional legal arguments only. That much is plain from the face of the Judge’s minute of 5 February 2025.
[47] Fulton Hogan benefited from Mander J’s Minute on a basis (on its case) it apprehended it had been ordered by his Honour on an incorrect basis, yet this was not raised with the Judge. Further, the tenor of Mander J’s ruling permitting the amendment is that had he been aware of the likelihood of further discovery being required (particularly in the broad form set out in the original discovery application), his Honour may well have taken a different view of the application for leave.
[48] For the avoidance of doubt, I am not suggesting that counsel for Fulton Hogan misled the Court or engaged in any similar “sharp” practice. I accept that, at least as between the parties, there was broader context to what was communicated to the Court about the consequences of the amended pleading, and in particular, what counsel for Fulton Hogan had communicated to counsel for SEESAW in the 27 January email. But the fact remains that the Court proceeded on the basis of counsel’s advice that the proposed amendments would not give rise to any additional discovery or evidence beyond that which was already needed, and that clear impression, set out in Mander J’s minute, was not corrected.
[49] What then of Fulton Hogan’s submission that the suggested inadequacies in SEESAW’s reply evidence justifies the late discovery application? I do not consider this point advances Fulton Hogan’s case, either at all or materially, or that the current circumstances can be said to be of SEESAW’s making. What SEESAW included in its reply evidence (and even if it was to file reply evidence) was a matter for SEESAW. A party ought not to rely on a counter-party giving evidence by way of reply evidence
for evidence needed to support an affirmative defence. Further, if SEESAW has, on Fulton Hogan’s case, failed to properly address (by way of reply) matters raised in Fulton Hogan’s evidence, then Fulton Hogan can, in the usual way, ask that an adverse inference be drawn against SEESAW if that is properly available.
[50] I am therefore satisfied that the circumstances in which Fulton Hogan was granted leave to file an amended pleading weighs against leave being granted to pursue the discovery application.
The timing of the application/prejudice and delay to SEESAW
[51] It is convenient to consider these two factors together. They also weigh against leave being granted.
[52] In Fulton Hogan’s application for leave to file its interlocutory application, it is said that SEESAW was, or ought to have been aware of the potential for an application for discovery by at least 27 January 2025 (if not earlier in January 2025 or December 2024), when notice was first given of the intention to amend the statement of defence. That argument does not assist Fulton Hogan. If anything, it highlights that such matters may have needed to be raised with the Court when it sought leave to amend the statement of defence. If SEESAW should have known of the potential for a discovery application, all the more is true of Fulton Hogan.
[53] In addition, the timing of the application, vis-a-vis the limited time to the substantive hearing, weighs against leave being granted. Even in its more slimmed down form, I am satisfied that the substantive hearing date would be imperilled were leave granted to pursue the (slimmed down) application in full. There are simply not the Court resources available to hear an opposed application for discovery in the timeframe available, allow that discovery to be given and considered by the parties with any accompanying amendment to briefs of evidence, and still hold the hearing on 17 and 18 March 2025. Granting leave means it is highly likely SEESAW would lose its fixture date.
[54] In addition, while I do not presently have full visibility of the matter, it seems that from very early on in these proceedings, Fulton Hogan was alive to the issue of at least some members of SEESAW having been involved in the earlier consenting
process, as evidenced by the fact that it sought information from SEESAW on its membership in June 2024. This is also reflected in its statement of defence (in its original form), with that pleading set out at [10] above. SEESAW was not forthcoming with its membership information at that time, and any confidentiality concerns could no doubt have been met by agreement between the parties as to the disclosure of the membership information. Be that as it may, Fulton Hogan did not pursue any discovery application at that time, or indeed at any time in the second half of 2024, following the filing of SEESAW’s statement of reply in July 2024. This reinforces the discovery application coming as somewhat of an afterthought following the completion of the parties’ evidence.
The merits of the proposed discovery application
[55] Discovery is not ordered as a matter of course in judicial review proceedings. Formally, ordering discovery is discretionary, pursuant to ss 14(1) and s 14(2)(h) of the Judicial Review Procedure Act 2016. Judicial review proceedings are intended to be a streamlined and efficient method for determining the lawfulness of statutory or other public decision-making. That said, discovery in judicial review proceedings is not necessarily rare. Ultimately, and as Katz J said in CF v Attorney General:10
[discovery is] not ordered routinely, but is a matter of discretion for the Court on a case-by-case basis, having regard to the circumstances of the case, the issues raised, and the context in which the challenge is made.
[56] If ordered, discovery in judicial review proceedings will often be tailored in its scope.
[57] It is also relevant, in my view, that a number of the principles governing discovery in judicial review proceedings relate to what might be termed an “ordinary” judicial review proceeding, where the only issue is the legality of a decision. In those circumstances, and in accordance with the expectation that a statutory decision-maker will be transparent in the material it puts before the Court comprising the record of the decision in issue, expanded discovery and oral evidence will very often be
10 CF v Attorney General [2016] NZHC 918, [2016] NZAR 848 at [18].
unnecessary. Similarly, post-decision documents are not normally the subject of discovery because they are irrelevant.11
[58] I bear in mind that this case is a little different, in that the discovery is not sought in relation to the substantive challenge to the legality of the Council’s decision (i.e., it is not SEESAW, as applicant, seeking discovery on the Council’s decision- making process), but it is the respondent, Fulton Hogan, seeking discovery in relation to a largely factually based affirmative defence, and the exercise the Court’s residual discretion — which can be informed by a wide range of matters.
[59] Turning then to the documents Fulton Hogan says ought to be discovered, Fulton Hogan has been right to narrow, quite considerably, the scope of its discovery application. In its initial form, the discovery application was very broad, extending to various forms of documents and social media, applying to all 15 members of SEESAW, and in the case of some members, extending as far back as 2018. Ordering such discovery would plainly have caused significant delay, and would have inevitably meant that the substantive hearing on 17 and 18 March 2025 could not proceed.
[60] I turn now to each of the categories of documents that are sought by way of discovery in the “slimmed down” application.
[61] The Formation Documents: This category seeks discovery of documents in the possession or control of SEESAW relating to the formation of SEESAW, including communications with eventual and potential members either directly or indirectly (for example via Facebook or other web based platforms). By reference to the content of the 27 January email, Fulton Hogan no doubt wants to know why SEESAW was formed, and what potential members were told about it.
[62] Such documents are arguably relevant to the issue of whether the Society’s purpose is really as expressed in its Constitution, and testing Ms Penny’s evidence that this proceeding is not the Society’s only concern or activity. Fulton Hogan no doubt wishes to make the point that SEESAW has been formed largely by those who were involved in the earlier consenting process and simply to “have another go” at
11 See for example Roussel UCLAF Australia Pty Ltd v Pharmaceutical Management Agency Ltd
[1997] 1 NZLR 650 (CA).
challenging the resource consent. This category of documents is also arguably relevant to the timing of the application for judicial review, and Fulton Hogan’s contention that the application could and should have been made earlier.
[63] However, there is already material before the Court that at least four members of SEESAW were directly involved in the earlier Environment Court process, including two of its officers. The Court can no doubt be invited to draw inferences on the timing of SEESAW’s formation and the steps it has taken in relation to this resource consent in particular, almost immediately upon formation.12 Further, what individual members might or might not have been told about SEESAW’s formation, and why it was intended to be formed, is not in my view of any real relevance to the issues to be determined. What might be relevant is what SEESAW is actually doing and intending to be doing (which is addressed further below, in relation to the SEESAW Purpose Documents). And as to the timing of the application, the uncontested fact is that this application for judicial review was not brought until some time after the conclusion of the earlier consenting process, and after Fulton Hogan had taken steps in reliance on the consent.
[64] Taking these factors into account, together with those discussed at [44] to [58] above, I do not consider leave should be granted to apply for discovery of the Formation Documents.
[65] The Member’s Connections Documents: Coupled with those factors weighing against leave being granted (discussed at [44] to [58] above), I am not persuaded it is appropriate to grant leave in relation to this category of documents. Again, there is already uncontested evidence before the Court that SEESAW is connected with the earlier campaign against the resource consent, insofar as four of its 15 members were active submitters in the earlier Environment Court process (including at least two of its officers). The fact that some additional members of SEESAW might have been involved in or have a relationship with persons involved in the earlier consenting process is highly unlikely to materially advance this argument, at least any further than it might be advanced on the existing and uncontested materials before the Court.
12 SEESAW was incorporated on 26 April 2024, and these proceedings were commenced on 24 May 2024.
[66] The SEESAW Purpose Documents: This category seeks discovery of documents relating to what SEESAW has done to date, including meeting agendas and minutes, reports to members, communications with Councils or resource consent holders, submissions on local authority plans or resource consents, communications with other persons or organisations about local authority plans or resource consents, and communications about alleged breaches of resource consent conditions.
[67] Particularly for the purposes of an application for leave brought at this late stage, in my view, this category is too broad a suite of documents for which discovery is sought, versus the potential relevance of those documents to the issues the Court must determine.
[68] However, I am satisfied that it is appropriate to grant leave to Fulton Hogan to apply for a much narrower category of these documents, namely SEESAW meeting agendas, meeting papers or reports, and reports provided to members in light of such meetings, which will illuminate what it is that SEESAW is actually doing or planning to do going forward. I am also persuaded it is appropriate to grant leave to pursue a discovery application in relation to any formal submissions made to date by SEESAW on other local authority plans or resource consents. In my view, granting leave to apply for discovery in relation to this narrower suite of documents is proportionate to the positive evidence given by Ms Penny about these matters, but with no reference to any objective documentary record.
[69] In addition, should the substantive application be granted, given SEESAW’s relatively recent formation, the documents in relation to which leave will be granted are likely to be relatively few in number, in SEESAW’s officers’ possession, and able to be compiled quite quickly.
[70] However, I consider that any documents that might be disclosed, if discovery is ordered, ought to be redacted to exclude discussion of SEESAW’s approach to the resource consent in issue in these proceedings, why it commenced these proceedings, and what it hopes to achieve from them. I do not consider these matters relevant to the issues for determination. Plainly SEESAW is seeking to challenge the resource consent. The Court can be invited to draw inferences on why SEESAW has brought these proceedings and what it hopes to achieve from them, which is presumably to
stop the operation of the quarry. I can think of no other logical reason why a challenge to the lawfulness of the resource consent would otherwise be brought by SEESAW. Further, its approach to and what it hopes to achieve from these proceedings may well be covered by litigation privilege in any event.
[71] As noted earlier, the paramount consideration when there is an application for leave to take steps in a proceeding after the close of pleadings date is that the parties should have every opportunity to ensure that the real controversy goes to trial so as to secure the just determination of the proceeding. In my view, granting leave to Fulton Hogan to pursue this much more limited application for discovery is consistent with the interests of justice, given the documents may be relevant to its affirmative defence and to the exercise of the residual discretion, and the documents reside in the possession of SEESAW and not Fulton Hogan. Ms Penny has given positive evidence of such matters. Given SEESAWs recent incorporation, the number and scope of documents ought to be quite limited.
[72] In addition, because the issues to which these documents may be relevant are quite separate to other issues arising on the pleadings (for example, the legal issues around the planning rules and the implications of the Cloud Ocean litigation, the nature and depth of the earlier consenting process, and Fulton Hogan’s reliance to date on the consent), I am satisfied that the substantive hearing can (and will) proceed on 17 and 18 March. This might involve, for example, the potential for some further limited steps to be taken by the parties following the hearing, should the discovery matter not be able to be resolved within the hearing itself (as to which, see [77] below). I have also taken into consideration that the substantive hearing has come on reasonably quickly from when the matter was ready to be set down for a hearing, and that if any post-hearing steps are needed to be taken, I will make myself available to ensure they are heard and dealt with efficiently and promptly. In my view, this strikes an appropriate balance between the factors a Court must take into account when considering whether to grant leave to a party to take steps in a proceeding following the close of pleadings date.
Orders
[73] I accordingly grant leave to Fulton Hogan to apply for discovery by SEESAW of the following categories of documents:
(a)SEESAW meeting agendas, reports prepared for and submitted to such meetings, and the minutes of such meetings, from incorporation to date;
(b)Reports sent by SEESAW to its members following SEESAW meetings, and on activities or steps undertaken or to be undertaken by SEESAW in relation to matters other than in relation to the resource consent the subject of this proceeding and the Fulton Hogan quarry; and
(c)any formal submissions made by SEESAW to date on other local authority plans or resource consents.
[74] I will hear argument on the discovery application (should that be needed) at the outset of the hearing on 17 March 2025.
[75] I make some brief concluding observations. It will be evident from what I have said above that, despite the delay in bringing the discovery application and the context in which Fulton Hogan was granted leave to amend its pleadings, I may be persuaded that the interests of justice overall lie in making an order for discovery in the limited terms set out above. I invite counsel to confer and discuss whether this may be able to be dealt with by consent.
[76] If the materials were to be provided promptly and by consent, the parties could propose any further steps which might need to be taken as a consequence, either in terms of an affidavit to bring the documents into evidence (although this could also easily be done by agreement, i.e. that they come into the evidentiary record), and any further brief written submissions to be made in the light of those documents.
[77] Alternatively, if the substantive matter is to be heard at the outset of the hearing, I remain of the view that given the discrete nature of the issue to which these particular documents give rise, it is not unfair prejudice to SEESAW, or will not
involve significant delay, to give the parties a further opportunity to make written and if necessary brief oral submissions following the substantive hearing, should that be necessary. SEESAW commenced these High Court proceedings. They have come on relatively quickly for a substantive hearing. Many High Court proceedings (including judicial review proceedings) involve at least some interlocutory matters. And any further steps will be strictly controlled and timetabled.
[78] Leave is reserved to request a further telephone conference with me prior to the substantive hearing should that become necessary.
Fitzgerald J
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