Sustainability Council of New Zealand Trust v Environmental Protection Authority

[2015] NZHC 601

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-877 [2015] NZHC 601

UNDER

the Hazardous Substances and New Organisms Act 1996 and Part 20 of the High Court Rules

IN THE MATTER OF

a determination of the Environmental Protection Authority made under s 26 of the Hazardous Substances and New Organisms Act 1996 in relation to application APP201381

BETWEEN

THE SUSTAINABILITY COUNCIL OF NEW ZEALAND TRUST

Appellant

AND

THE ENVIRONMENTAL PROTECTION AUTHORITY

Respondent

On the papers

Judgment:                27 March 2015

JUDGMENT OF MALLON J (Costs)

Introduction

[1]      I refer to my judgment allowing the Sustainability Council’s appeal against a determination of the Environmental Protection Authority (the Authority).1     The Sustainability Council seeks costs against the Authority.  The issue is whether it is appropriate to order costs against the Authority, which was the decision maker and

which undertook an active role on the appeal in order to assist the Court.   If it is

1      Sustainability Council  of  New  Zealand  Trust  v  Environmental Protection Authority  [2014] NZHC 1067.

THE SUSTAINABILITY COUNCIL OF NEW ZEALAND TRUST v THE ENVIRONMENTAL PROTECTION AUTHORITY [2015] NZHC 601 [27 March 2015]

appropriate, the parties are agreed that the relevant category of costs is 2B and that costs would total $19,746.50 on that basis.

Background

[2]      The Authority is a body charged with powers, functions and duties under the Hazardous Substances and New Organisms Act 1996 (the Act).   They include determining applications for approvals relating to new organisms (which include genetically modified organisms)2 and determining whether an organism is a new organism requiring such approvals.3    The appeal concerned a decision by the Authority that two particular technologies were within an exemption provided for in

regulations such that their use did not result in genetically modified organisms for which approvals were required.  The application to the Authority was made by the New Zealand licensee of those technologies (Scion).   The Sustainability Council made submissions in respect of that application.  Having done so, it had a right of appeal against the Authority’s decision under the Act.4

[3]       The Sustainability Council lodged its appeal.  Scion did not wish to take an active part in the appeal.  An application by Dow Agrosciences LLC, which holds a global licence in respect of one of the technologies, sought but was declined leave to intervene.5    The Authority wished to appear at the hearing to assist the Court on matters of interpretation and application of the legislation but did not wish to make submissions as if an adversary.   The Sustainability Council considered that this would amount to participation as an adversary and that if that was the course adopted by the Authority it should be treated as such, including in relation to costs.   The

possibility of an amicus was raised.

[4]      I directed that an amicus may not be necessary if the Authority wished to appear at the hearing to assist the Court on matters of interpretation.  I said that the appointment of an amicus could be revisited if either party or the Court considered it

desirable  once  the  submissions  had  been  filed.    I  said  that  the  Sustainability

2      Hazardous Substances and New Organisms Act 1996, s 27.

3      Section 26.

4      Section 126.

5      Sustainability Council  of  New  Zealand  Trust  v  Environmental Protection Authority  [2013] NZHC 2608.

Council’s view that the Authority would be acting in an essentially adversarial role seemed to relate only to the question of costs which was better determined once the substantive appeal had been heard.6     In the event neither party pursued the appointment of an amicus.

[5]      The other pre-hearing matter of present relevance concerned leave for the Sustainability  Council  to  file  evidence  from  a  scientific  expert  to  explain  the meaning and use of technical scientific terms used in the regulations and related documents.  The Authority did not oppose leave being granted but sought leave to file  expert  scientific  evidence  in  response.    Leave  was  granted  on  that  basis.7

Subsequently the Sustainability Council considered that parts of the expert scientific

evidence filed by the Authority went beyond the leave granted.  In my judgment on the appeal I agreed that some parts of that evidence had gone beyond the leave granted.8

Is a costs order appropriate?

[6]      The Sustainability Council submits that costs should follow the event.   It submits that the Authority misinterpreted the law in making its determination.  The Sustainability Council believed that determination potentially to be very damaging to the national interest.   The Sustainability Council was acting in the public interest rather  than  in  pursuit  of  direct  personal  interests.     The  Court  upheld  the Sustainability Council’s view that the Authority had misinterpreted the law.   The Sustainability Council says that the Authority chose its level of participation and it was open to the Authority to choose instead to abide the Court’s decision.  It says that the Authority went beyond assisting in a neutral way and the usual costs consequences should follow.

[7]      As noted in my judgment the Authority’s submissions were made “to inform

and assist the Court on matters of interpretation and application of the legislation.”9

6      Sustainability Council of New Zealand Trust v Environmental Protection Authority (Minute of

Mallon J) HC Wellington CIV-2013-485-877, 17 June 2013.

7      Sustainability Council of New Zealand Trust v Environmental Protection Authority (Minute of

Mallon J), above n 6.

8      Sustainability Council of New Zealand Trust v Environmental Protection Authority, above n 1, at footnotes 20, 28, 30 and 35.

9 At [25].

The Authority’s submissions were helpful.    It put forward three possible interpretations to what is a confusingly worded regulation.   This enabled the interpretation advanced by the Sustainability Council to be tested properly.  The correct interpretation was important in the context of legislation which has the purpose of “protect[ing] the environment, and the health and safety of people and communities, by preventing or managing the adverse effects of hazardous substances

and new organisms.”10     Without the Authority taking on that role, and given the

ruling on Dow Agrosciences LLC’s application to intervene, the appointment of an amicus would have been appropriate.   The Authority’s participation avoided the expense to the public of such an appointment.  Had that appointment been made the Sustainability Council would not have been awarded costs.

[8]      The Authority’s role was similar to that of the Commerce Commission where it presents necessary evidence and argument in opposition to an appeal against one of its own determinations under Part V of the Commerce Act 1986.  It has been held that the Commerce Commission ought not to be exposed to an adverse costs order when it is unsuccessful in its opposition.   That could act as a disincentive to the Commerce Commission’s active assistance in such matters.11  A similar approach has

been taken in respect of appeals from decisions of the Electoral Commission.12

[9]      I consider that approach is appropriate here in the situation that arose.  The proceeding concerned a matter of public interest and the Authority acted reasonably in the conduct of the proceeding.13    The meaning of the regulation was far from clear. This was not a case where the issue on the appeal would be developed fully by parties other than the decision maker.  Although I accepted that the expert scientific evidence filed by the Authority went beyond the leave granted in some respects, that

was to a limited extent and not such that I could say that it acted unreasonably.  The

10     Hazardous Substances and New Organisms Act 1996, s 4.

11     Commerce Commission v Southern Cross Medical Care Society [2004] 1 NZLR 491 (CA) at [17]. The courts have taken different approaches to costs in other situations under the Commerce Act 1986. See, for example, Air New Zealand Ltd v Commerce Commission [2007] NZCA 27, [2007] 2 NZLR 494; Commerce Commission v Qantas Airways Ltd (No 4) (1992) 5

PRNZ 475 (HC).  It is not necessary to consider these different approaches because they are not
analogous to the position here.

12     Alliance Party v Electoral Commission [2010] NZCA 4, [2010] NZAR 222.

13     High Court Rules, r 14.7(e).  I do not accept the submission for the Sustainability Council that this rule is aimed at protecting parties such as the appellant.  See, for example, Hotchkin v KA No 4 Trustee Ltd [2014] NZHC 978 at [24] and [26].

Authority considered that the evidence was of assistance and was within the leave granted. I took a different view.

[10]     In my view it is not appropriate to order costs because the Sustainability Council itself was also acting in the public interest.  That certainly would have been relevant had the Sustainability Council been unsuccessful in its appeal.14   But it does not detract from the public interest fulfilled through the Authority undertaking the role that it did in this appeal.

Result

[11]     The claim for costs is dismissed.

Mallon J

14     Rule 14.7(e).