Te Whare O Te Kaitaiki Ngahere Incorporated v West Coast Regional Council

[2015] NZHC 2769

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV 2015-409-101 [2015] NZHC 2769

UNDER

the Resource Management Act 1991

BETWEEN

TE WHARE O TE KAITIAKI NGAHERE INCORPORATED Appellant

AND

WEST COAST REGIONAL COUNCIL First Respondent

TBFREE NZ LTD Second Respondent

DIRECTOR-GENERAL OF CONSERVATION

Third Respondent

EPRO LIMITED Fourth Respondent

CHRISTOPHER COWAN Fifth Respondent

Hearing:	5 November 2015
Counsel:	A S P Tobeck for Appellant A L Logan for First to Third Respondents No appearance by or on behalf of Fourth and Fifth Respondents
Judgment:	9 November 2015

JUDGMENT OF HEATH J

This judgment was delivered by me on 9 November 2015 at 4.00pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

TE WHARE O TE KAITIAKI NGAHERE INCORPORATED v WEST COAST REGIONAL COUNCIL [2015] NZHC 2769 [9 November 2015]

The appeal

[1]      Te Whare o Te Kaitiaki Ngahere Inc (Te Whare) appeals against an order made by the Environment Court on 21 January 2015, which had the effect of striking out proceedings (the declaration proceedings) issued by it to confirm the alleged contravention of various resource consents granted by West Coast Regional Council (the Council).1

[2]      The appeal is opposed by the Council, TBFree NZ Ltd (TBFree) and the Director-General of Conservation.  Mr Logan appeared on behalf of all three of those respondents.  The remaining two respondents, Epro Ltd and Mr Cowan, abided the decision of the Court.2

[3]      The  primary  ground  of  appeal  is  that  Judge  Newhook  (the  Principal Environment Judge) erred in law by failing to notify the parties of his intention to strike out the proceeding, and to hear from them before determining whether to do so.   The question is whether the process by which the Judge reached his decision

breached the principles of natural justice.3

The proceedings

[4]      Te Whare seeks declarations from the Environment Court that conditions of various resource consents granted in favour of TBFree (then the Animal Health Board) by the Council have been contravened.   There is considerable local public interest in the declaration proceedings, as they concern consents granted for the discharge of sodium monofluoroacetate, commonly known as “1080” poison.

[5]      The Council issued the relevant consents.   TBFree undertakes pest control activities, based on those consents.  Much of the area in which the 1080 bait laying activities have occurred is on land under the control of the Department of Conservation.  Epro Ltd undertook aerial bait dropping for TBFree.  Mr Cowan was

a director of a company that carried out operational aspects of 1080 bait laying.

1      Te Whare o Te Kaitiaki Ngahere Inc v TBFree NZ Ltd [2015] NZEnvC 8.

2      The roles played by each respondent are set out in para [5] below.

3      This principle is affirmed by s 27 of the New Zealand Bill of Rights Act 1990.

[6]      In seeking declaratory relief, Te Whare made some 57 allegations of breach in respect of the 12 resource consents.  The allegations were directed to 39 named respondents, including the consent holder.   Initially, some 761 declarations were sought.  As at 3 March 2014, 323 of those had been withdrawn or struck out.  As I understand the position, presently 438 separate declarations are sought.4

[7]      The declaration proceedings have fallen into a procedural quagmire.  In order to understand the circumstances in which the strike out order was made, it is necessary to set out the background in some detail.

The applications for security for costs

[8]     The five respondents applied to strike out the declaration proceedings. Contemporaneously, they sought orders for security for costs.   The Environment Court decided on 10 October 2013, contrary to its usual practice, to hear and determine  the  applications  for  security before  the  strike  out  applications.    That approach was confirmed by Whata J, in this Court, on 28 November 2013.

[9]      The  applications  for  costs  were  considered  on  the  papers.    They  were determined by Judge Kirkpatrick on 3 March 2014.5   The Judge made an order in the sum of $25,000, reflecting an amount of $5000 per claimant.   He stated that this figure was “not based on an estimate of each party’s likely actual costs or the amount that they might recover as party and party costs under section 285 of the [Resource Management] Act …” but had been “set at a level which is appropriate as between all parties, including Te Whare, in the interests of justice and taking into account all of the factors which bear on the discretion to be exercised in relation to security for costs”.6

[10]     The declaration proceedings  were stayed until such time as security was given.  Judge Kirkpatrick made it clear that that order was not intended to affect any

existing appeals, or the right of any other party to seek further orders.7

4      As explained by Judge Kirkpatrick, in Te Whare o Te Kaitiaki Ngahere Inc v TBFree NZ Ltd

[2014] NZEnvC 41 at para [3].

5      Te Whare o Te Kaitiaki Ngahere Inc v TBFree NZ Ltd [2014] NZEnvC 41.

6 Ibid, at para [41].

7 Ibid, at para [43].

[11]     On 13 August 2014, Dunningham J dismissed Te Whare’s appeal  to this Court against the order for security for costs.8    Her Honour traversed relevant parts of Judge Kirkpatrick’s decision but ultimately took the view that he was right to make the order.  Dunningham J concluded by saying:

[58]      While the Courts afford considerable latitude to parties which are not represented by counsel, the convoluted expression of the various documents filed in support of the appeal reflects the concerns expressed by the four different Environment Court Judges who have been involved in these proceedings to date.  Furthermore, Te Whare has failed to heed the warnings, or take up the suggestions, that have been made to it by the Court.   For example, it has been suggested that Te Whare run a selection of “exemplar” declarations in the first instance, which would have limited its risk of a costs award and have led to a more favourable outcome on the issue of security for costs, but it has steadfastly resisted such guidance.  If Te Whare is unable to progress its application, it is largely the architect of its own fate.

[12]     Te   Whare   sought   leave   to   appeal   to   the   Court   of  Appeal   against Dunningham J’s decision.  That application was dealt with by Dunningham J, on the papers.  Her judgment was delivered on 31 October 2014.  She considered that no question of law arose to justify an appeal to the Court of Appeal.  The application for

leave was dismissed.9

[13]     On 21 January 2015, Principal Judge made an order striking out Te Whare’s declaration proceedings.10    The decision was made of the Court’s own motion and without giving notice to the parties.  It is clear from the Judge’s decision that he was under the impression that no steps had been taken by Te Whare to seek special leave to appeal to the Court of Appeal against Dunningham J’s judgment of 13 August

2014.  Relevantly, Judge Newhook said:

[3]       Applications were filed to strike out the declaratory applications, along with five applications for security for costs.

[4]       In the ordinary course the applications for security for costs would most likely have been considered after the strike out applications. In the present case, there was a plethora of claims, which had spawned a plethora of strike out applications. All parties were likely to incur very considerable costs  in  these  proceedings,  and  for  this  reason  it  was  decided  that  the

8      Te Whare o Te Kaitiaki Ngahere Inc v Animal Control Products Ltd [2014] NZHC 1903. The judgment also deals with appeals from other orders made by the Environment Court, but they are not relevant for present purposes.

9      Te Whare o Te Kaitiaki Ngahere Inc v Animal Control Products Ltd [2014] NZHC 2690.

10     Te Whare o Te Kaitiaki Ngahere Inc v TBFree NZ Ltd [2015] NZEnvC 8.

applications of security for costs would be determined before the strike out applications.

…

[9]       I have investigated whether Te Whare has taken any further steps in relation to the 2 High Court decisions. The Court of Appeal (Civil) Rules

2005 , at Rule 14(2), provides that a party in the position of Te Whare had 20 working days to seek leave in the Court of Appeal. The registry of the Court

of Appeal has confirmed that no such proceeding has been filed. The last available date would have been 28 November, so I hold that there is no bar

to this Court considering the strike out applications.

[10]     In light of the unsuccessful proceedings in the High Court, and the fact that to date the ordered security for costs is unpaid, the Court considers it appropriate to consider whether this matter should now be struck out.

[11]      Section 279(4) of the Act states that:

“(4)An [Environment Judge] sitting alone may, at any stage of the proceedings and on such terms as the Judge thinks fit, order that the whole or any part of that person's case be struck out if the Judge considers—

(a)       That it is frivolous or vexatious; or

(b)      That it discloses no reasonable or relevant case in respect of the proceedings; or

(c)       That it would otherwise be an abuse of the process of the

[Environment Court] to allow the case to be taken further.”

[12]     In Gillespie v Manawatu-Wanganui Regional Council and Tararua District  Council  [[2013]  NZEnvC  287]  the  appellant  failed  to  provide security for costs and Judge Dwyer struck the appeal out on the following grounds:

“I determine that it would be an abuse of the process of the Environment Court to allow an appellant to maintain an appeal when that  appellant  has failed  to  provide  security for  costs.  Further,  I consider that there must be an inherent jurisdiction to strike out an appeal when such a requirement has not been met.”

[13]      In this case I consider that to allow the matter to remain on the books of this Court in the absence of payment of security for costs, (particularly a significant time after the conclusion of the two steps in the High Court), would be an abuse of the Court's process. I am satisfied that in the absence of Te Whare providing security for costs, the Court's discretion under section 279(4)(c) of the Act should be exercised, and the case struck out.

[14]     Accordingly, the application for declarations is struck out. (Emphasis added)

[14]     In fact, Te Whare had tried to file documents in the Court of Appeal seeking special leave to appeal.  They had been rejected.  Nevertheless, some of the other parties had been served.  Soon after, the Court of Appeal accepted a special leave application for filing, together with a separate application for leave to extend time to apply.   In a judgment given on 7 August 2015, the Court of Appeal granted the

application for an extension of time but refused special leave to appeal.11

[15]     On 25 February 2015, Te Whare filed an appeal in this Court against the

Environment Court’s strike out decision of 21 January 2015. [16]     So, in summary:

(a)      Before giving his decision of 21 January 2015, Judge Newhook had inquired of the Court of Appeal as to the filing of any challenge to the High Court decisions and was correctly (as at the likely date of his inquiry)  advised  that  no  application  for  special  leave  had  been properly filed.

(b)At the time the strike out decision was made, the Environment Court proceeding remained stayed, pursuant to Judge Kirkpatrick’s order.

(c)      Judge  Newhook  failed  to  give  notice  to  the  parties  that  he  was considering whether to strike out the declaration proceedings.  As a result, he did not hear from them on that issue before the strike out order was made.

(d)At the time the Court of Appeal gave its decision on the application for  special  leave  to  appeal,  the  proceeding  with  which  it  was concerned had already been struck out.

Analysis

[17]     It is common ground that an appeal to this Court may only be brought on a question of law.  Section 299(1) of the Resource Management Act provides:

11     Te Whare o Te Kaitiaki Ngahere Inc v West Coast Regional Council [2015] NZCA 356.

299  Appeal to High Court on question of law

(1) A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.

...

[18]     I am satisfied that the natural justice point qualifies as a question of law fit for appeal.  The central question is whether the Principal Environment Judge erred in making orders without  giving notice to the parties and providing them with an opportunity to be heard.

[19]     A similar issue arose in Skelton v Family Court at Hamilton.12   In that case, the Principal Family Court Judge had made an order permitting publication of a number of judgments given in the Family Court that related to the abduction of a young child.  I held that it was open, in a routine case, for a Family Court Judge to make such an order.  However, it was not inevitable that the discretion reposed in the Court by s 139(2) of the Care of Children Act 2004 would have been exercised in that way had the parties been given an opportunity to be heard.

[20]     I held  that  Judge  Boshier  erred  in  making the  publication  order without providing an opportunity for the parties to be heard.  He had acted in breach of the right to natural justice conferred by s 27(1) of the New Zealand Bill of Rights Act

1990.  The problem was that relevant submissions could have been made to oppose the grant of permission to publish because of fair trial concerns.  One of the parties was at risk of criminal prosecution for kidnapping and was concerned about publication of adverse credibility findings made in the Family Court.13

[21]     In this case, if notice had been given to the parties, Judge Newhook would have been told about the steps that were being taken to seek special leave to appeal from the Court of Appeal.  It is plain, from the nature of the Judge’s inquiries, that he regarded  the  existence  or otherwise of  an  attempt  to  appeal  further  against  the

security for costs order as an important factor to be considered in the exercise of his

12     Skelton v Family Court at Hamilton [2007] 3 NZLR 368 (HC).

13     Ibid, at paras [92]–[94], [101] and [105].  See also Martin v Ryan [1990 2 NZLR 209 (HC) and

Y v X [2003] 3 NZLR 261 (HC).

discretion to strike out.  In those circumstances, it cannot be said that the strike out order would inevitably have been made.  In my view, the failure to give notice to the parties and to afford them the opportunity to be heard on the proposal to strike out the declaration proceedings was a breach of the principles of natural justice and constitutes an error of law.

[22]     The fact that errors of this type were made by two senior and well respected Judges (in Skelton and in this case) demonstrates the dangers of Judges making orders of their own volition without hearing from the parties.  Often, no reason not to make the order is readily apparent.  But, that is the whole point of giving notice to parties.  They may know something that the Judge does not that is relevant to (and sometimes determinative of) the point that he or she is intending to decide.

[23]     Although I am determining the appeal on the natural justice point, I am not to be taken as endorsing the view that the Environment Court had jurisdiction to strike out  the  declaration  proceedings  on  “abuse  of  process”  grounds.    The  order  for security for costs was made by reference to those powers of a District Court Judge

that an Environment Judge may exercise in the course of proceedings.14   Recourse to

that same jurisdiction may have been preferable if the declaration proceedings were to be struck out for non-compliance with the order for security for costs.  I reserve my opinion on this issue.

[24]     Another problem is that the Principal Environment Judge began his decision by referring to the extant strike out applications.15   However, those applications were based on other grounds.  They had been filed before the order for security for costs was made.  The better course would have been to allow the declaration proceedings to remain stayed and to leave it for the affected parties to apply, at an appropriate time, for those proceedings to be struck out for non-compliance with the order for

security for costs.

14     As explained by Judge Kirkpatrick in TeWhare o Te Kaitiaki Ngahere Inc v TBFree NZ Ltd

[2014] NZEnvC 41 at paras[19]–[22].

15     Te Whare o Te Kaitiaki Ngahere Inc v TBFree NZ Ltd [2015] NZEnvC 8 at para [3], set out at para [13] above.

[25]     Mr Tobeck has recently been instructed to act for Te Whare.   To date, the proceeding has been run through one of its officers, Mr Patterson.  His ability (as a lay person) to navigate the procedural problems that have arisen, and Te Whare’s unwillingness to find security for costs from its supporters, has been the cause of much delay and additional cost to some of the respondents.

[26]     I heard submissions from counsel on an appropriate remedy, if I were to allow the appeal.   Mr Logan submitted that I should make an “unless” order to require  payment  of  the  security  within  a  specified  time,  failing  which  the applications would be dismissed.  I have considered that approach.

[27]     While I expressed some jurisdictional concerns during argument, I have not researched those further.  My reason for declining to take the approach advocated by Mr Logan is that it would remain open for Te Whare to apply to the Environment Court for an order varying or discharging the order for security for costs during the period of the “unless” order.   That has the potential to delay the declaration proceedings further.   I consider it better for the Environment Court to establish a timetable to address outstanding issues, after hearing from all counsel.

[28]     Now that counsel has been instructed by Te Whare, a fresh perspective can be brought  to  the  declaration  proceedings.    Mr Tobeck  advises  me  that  there  is  a prospect that the case can be refined and that security for costs can be posted.  The type  of  “exemplar”  declarations  to  which  Dunningham J  referred  in  one  of  her judgments is a possible outcome.16    There are also outstanding costs orders against Te Whare that must be met.

[29]     Because Mr Tobeck needs time to review the papers before advising his client, I shall remit the declaration proceedings to the Environment Court for a case management  conference,  so  that  all  parties  can  have  input  into  the  timetabling

directions that will be required to deal with outstanding issues.

16     Te Whare o Te Kaitiaki Ngahere Inc v Animal Control Products Ltd [2014] NZHC 1903, at para

[58], set out at para [11] above..

Result

[30]     The appeal against the Environment Court’s order of 21 January 2015 is

allowed. The strike out decisions are set aside.

[31]     The declaration proceedings are remitted to the Environment Court for a case management telephone conference to be convened, so that further directions may be made.  To assist the Environment Court, I would suggest that any conference be held in early 2016, to give sufficient time for Mr Tobeck to review Te Whare’s case.  In the meantime, in terms of Judge Kirkpatrick’s orders,17  the declaration proceedings remain stayed.

[32]     As  Te  Whare  was  unrepresented  until  just  before  the  hearing,  I  do  not consider that costs should be awarded in its favour.  Like Dunningham J, I consider that the problems confronting Te Whare at the time it brought this appeal were

largely of its own making.18   I make no order as to costs.

P R Heath J

Delivered at 4.00pm on 9 November 2015

Solicitors:
Menzies Marshall Law, Winton
Ross Dowling Marquet Griffin, Dunedin

Chapman Tripp, Wellington Crown Law, Wellington Conners Legal, Greymouth

17     See para [10] above.

18     Te Whare o Te Kaitiaki Ngahere Inc v Animal Control Products Ltd [2014] NZHC 1903, at para

[58] set out at para [11] above.