Te Whare O te Kaitiaki Ngahere Incorporated v West Coast Regional Council
[2017] NZHC 150
•14 February 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-418 [2017] NZHC 150
UNDER THE Resource Management Act 1991 IN THE MATTER OF
An Appeal
BETWEEN
TE WHARE O TE KAITIAKI NGAHERE INCORPORATED Appellant
AND
WEST COAST REGIONAL COUNCIL First Respondent
AND
TBFREE NZ LIMITED Second Respondent
AND
DIRECTOR-GENERAL OF CONSERVATION
Third Respondent
Hearing: 31 August 2016
(and further memoranda and affidavits, last filed 11 October
2016)Appearances:
A S P Tobeck for Appellant
A J Logan for First Respondent
B Williams for Second Respondent
N Anderson for Third RespondentJudgment:
14 February 2017
JUDGMENT OF NICHOLAS DAVIDSON J
Background
[1] This appeal stems from litigation which is founded on the deeply held
concerns of those who are part of, or support, the appellant’s claim that 1080 poison
has unlawfully been applied or otherwise entered the environment of the West Coast
TE WHARE O TE KAITIAKI NGAHERE INC v WEST COAST REGIONAL COUNCIL [2017] NZHC 150 [14 February 2017]
of New Zealand on multiple occasions, contrary to resource consent and other lawful requirements, and contrary to the public interest in health and the environment.
[2] In 2012 the appellant, Te Whare O Te Kaitiaki Ngahere Inc (Te Whare) sought declaratory relief in the Environment Court in the context of alleged breaches of resource consents and other instruments associated with distribution of 1080.
[3] In its present form, the proceedings are brought against the West Coast Regional Council (the Council), TBFree NZ Ltd (TBFree) (which manages the National Bovine Tuberculosis Pest Management Plan and is the successor to the Animal Health Board which held the relevant resource consents), and the Director-General of Conservation (the Director-General).
[4] As first pleaded in July 2012, 761 declarations were sought against some
39 individuals and entities, particularised in some detail as to the person or organisation alleged responsible for the activity, including time and geographical location.
[5] By the time an application for security for costs was made and granted against the appellant in 2014, this had been reduced, through strike out and withdrawal, to 438 declarations. There were 23 affidavits, 248 exhibits and video footage “pleaded” covering the period 2005 to 2010. The magnitude of any eventual hearing was a daunting prospect for all parties.
[6] The appellant has been given the opportunity to amend its pleadings by condensing the extent and manner of relief sought. To that end, and given that throughout much of the case’s history the proceedings have been technically struck-out, as further explained, the appellant filed an “Intended Amended Application For Declarations” (the amended pleadings) dated 26 February 2016.
[7] Treating the amended pleadings as an attempt to reduce the scope of the litigation, 12 individual declarations are sought, delineated according to the nature of
the alleged breach.1 Each declaration is sought against the respondents generally,
1 The declarations are headed: “Signs”, “Baits”, “Outside Area”, “Wind Drift”, “Tracks and Roads
often in “joint or several” capacity, and the pleading articulates the various geographical resource consents involved in the context of often broad timeframes. This judgment returns to the status and effect of these amendments on the various decisions of the Environment Court to strike out the proceedings, and whether the strike out should now be upheld or overturned on this appeal.
[8] This judgment addresses two issues arising out of decisions of the Environment Court (and an earlier appeal to this court). The two issues are the orders made for as-yet-unpaid security for costs, and strike out applications by the respondents made (and granted), in the context of non-compliance with security for costs orders, and the quality of the pleadings generally.
Judgment under appeal
[9] This is an appeal from a judgment of His Honour, Principal Environment Court Judge Newhook. The procedural history leading up to that decision is outlined below. On 11 May 2016, he declined an application by Te Whare to vary an order made in 2014 that it pay $25,000 as security for costs, and granted the respondents’ applications to strike out the appellant’s application for declarations.2
[10] In essence, Mr Tobeck for the appellant says that the Judge was wrong not to read down the quantum of security of costs that was required of the appellant, when the five respondents named at the outset of the litigation were reduced to three. Proportionally, he submits that meant security of $15,000 only should have been required, and Mr Tobeck says that sum, or close to it, is available. That assumes no part of the security would be available to the two respondents who fell out of the litigation. Secondly, what is a plain deficiency in the pleading is submitted to be
rectifiable, and Mr Tobeck relies on the intended amended pleadings.
Not Cleared”, “Dead Animals Not Removed”, “Protective Clothing/Equipment Not Used”, “Toxin Entering Water”, “Fail to Provide Pottable(sic) Water”, “Exclusion Zone/Decontamination”, “Notice”, and “Medical Attention or Advice”.
2Te Whare O Te Kaitiaki Ngahere Inc v Director-General of Conservation [2016] NZEnvC 89 [the judgment under appeal].
[11] Te Whare therefore contends on appeal that the order for security for costs should have been varied, the proceedings should be reinstated, and Te Whare permitted to continue with its application for declarations.
Litigation Narrative
[12] The proceedings have a faltering history:
(a) On 3 March 2014, His Honour Judge Kirkpatrick in the Environment
Court set security for costs at $25,000, notionally apportioned as to
$5,000 in respect of each of the then five respondents.3 On
13 August 2014, Te Whare was unsuccessful on appeal to the High Court,4 and was subsequently unsuccessful seeking leave to appeal to the Court of Appeal.5 On 7 August 2015, the Court of Appeal refused special leave to appeal.6
(b)On 21 January 2015, security for costs not having been met, Judge Newhook struck out the appellant’s application for declarations.7 The Judge was seemingly unaware that the application for special leave to appeal to the Court of Appeal was still on foot, although at the time of his judgment, no proper application for special leave had been received by the Court of Appeal. The decision to strike
out was, it seems, made on the court’s own motion and without notice
to the parties.
(c) On 9 November 2015, Heath J in the High Court allowed the appellant’s appeal against Judge Newhook’s 21 January 2015 decision.8 The matter was remitted back to the Environment Court,
where it was again heard before Judge Newhook on 5 May 2016.
3 Te Whare O Te Kaitiaki Ngahere Inc v TBFree New Zealand Ltd [2014] NZEnvC 41 [the security for costs judgment].
4 Te Whare O Te Kaitiaki Ngahere Inc v Animal Control Products Ltd [2014] NZHC 1903.
5 Te Whare O Te Kaitiaki Ngahere Inc v Animal Control Products Ltd [2014] NZHC 2690. The application was unjustifiably out of time, but more fundamentally, disclosed no proper question of law.
6 Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2015] NZCA 356.
7 Te Whare O Te Kaitiaki Ngahere Inc v Director-General of Conservation [2015] NZEnvC 8.
8 Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2015] NZHC 2769.
By this time, the named respondents had been reduced to three, and they remain parties to the current proceedings.
(d)On 11 May 2016 Judge Newhook declined to vary the costs orders and granted the respondents’ applications for the proceedings to be struck out.
[13] In summary, the Environment Court initially ordered Te Whare to provide
$25,000 as security for costs for the proceedings which involved (then) five named respondents. By 5 May 2016, when the Environment Court was again seized of this matter, following referral back by Heath J in this court, there were three named respondents, not five, but declarations were still sought in respect of some hundreds of alleged incidents involving 1080.
Costs orders made against Te Whare
[14] There have also been costs orders made against Te Whare throughout the litigation, totalling over $30,000 being:9
(i) $10,000 in favour of Animal Control Products Ltd; (ii) $8,951.15 in favour of TBFree;
(iii) $9,215 in favour of West Coast Regional Council;
(iv) $3,791 (approx) in favour of the respondents (in the Court of Appeal); (v) $5,327.51 in favour of the Director-General of Conservation.
[15] These costs orders relate to unsuccessful steps taken by Te Whare in the proceedings, including appeals to the Court of Appeal challenging the initial security
for costs order. The costs orders are relevant to the question of whether the appellant
9 See Re Te Whare O Te Kaitiaki Ngahere Inc [2013] NZEnvC 136; Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2014] NZHC 2969 at [18]; Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2015] NZCA 356; Te Whare O Te Kaitiaki Ngahere Inc v TBFree New Zealand Ltd [2015] NZEnvC 142.
is now in a position to post security for costs, even to the reduced sum of $15,000 for which they contend. Te Whare has had its success too before Heath J and that must not be overlooked.
[16] No security has been provided by Te Whare. Mr Tobeck says that is in part because it is uncertain how much is required. Its ability to meet the order for security may be affected by the costs orders becoming the basis in October 2016 for garnishee proceedings in the District Court at Greymouth, brought by TBFree and Animal Control Products Ltd to secure funds held in trust for Te Whare in its solicitor’s trust account.
More recent events in this court
[17] Since this appeal hearing on 31 August 2016, there have been further papers filed for the appellant, and for the respondents. These are discussed in more detail, but are in part the product of discussion between the court and counsel for Te Whare, Mr Tobeck, during the hearing on 31 August 2016, which entitled him to file updating information. The respondents have filed a joint memorandum saying that his response far exceeded the leave granted, and they make no reply on some issues raised.
The appellate jurisdiction
[18] Appeals to this court from the Environment Court may be brought on a question of law only. In Countdown Properties (Northlands) Ltd v Dunedin City Council, the court held that relevant errors of law may include:10
(a) Application of the wrong legal test;
(b)Reaching a conclusion without evidence or one unsupportable on the evidence;
(c) Taking into account irrelevant matters;
10 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at
153.
(d) Failing to take into account relevant matters.
[19] In C v The Chief Executive Officer of the Ministry of Business Innovation and Employment of Auckland,11 an error of law was held to involve the application of an incorrect legal test or a wrong answer to a legal question upon unchallenged facts.
[20] There are circumstances in which a material error of fact may be sufficiently serious that it amounts to a material error of law. Mr Tobeck refers to Woods v Legal Complaints Review Officer,12 where Kos J cites, to this effect, E v Secretary of State for Home Department.13 Counsel for the third respondent refers to the characterisation which the factual finding sought to be impugned must possess. The
decision-maker must have made a finding of fact which is: (a) Based on no evidence; or
(b)Based on evidence inconsistent with or contradictory to the finding of fact; or
(c) Contradictory of the only truly reasonable conclusion of fact available on the proper evidence.
The appellant’s grounds of appeal
The security for costs order should have been varied
[21] Mr Tobeck seeks to revive the struck out application for declarations, and to rescind or vary the order for security for costs. Before Judge Newhook, Mr Tobeck said that Te Whare was trying to secure funds which would allow security to be provided. However, he said that should be in the sum of $15,000 as the order of security for costs made on 3 March 2014 by the Environment Court reflected the five
respondents and security was ordered in the sum of $5,000 for each.
11 C v Chief Executive Officer of the Ministry of Business Innovation and Employment of Auckland
[2014] NZHC 2655.
12 Woods v Legal Complaints Review Officer [2013] NZHC 674, [2013] NZAR 577.
13 E v Secretary of State for Home Department at [2004] 1 QB 1044 (CA) at [66].
[22] When Te Whare either could not, or did not, meet the security ordered, the application for declarations was struck out by Judge Newhook, purportedly in the exercise of his statutory jurisdiction, on 21 January 2015. Referring to s 279(4)(c) of the Resource Management Act 1991 (the Act), the Judge considered that “to allow the matter to remain on the books of this court in the absence of payment of security
for costs…would be an abuse of the court’s process”.14
[23] On appeal to this court, Heath J remitted the proceedings back to the Environment Court. The principal issue before Heath J was whether, by striking out the proceedings without notice to the parties, principles of natural justice had been breached. Characterising that as a question of law, Heath J said “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”.15 He
considered that had Judge Newhook heard from the parties, he would have learned of the appeal to the Court of Appeal. The exercise of discretion would not inevitably have been in favour of strike out. Whilst reserving his opinion on the issue, Heath J also doubted whether there was statutory jurisdiction under the Act to strike out the proceedings as an “abuse of process”. However, he preferred to rest judgment on appeal on the grounds pleaded, namely natural justice.
[24] Having been remitted back to the Environment Court by Heath J, the matter came again before Judge Newhook. His Honour, by judgment of 5 May 2016, declined to vary the security for costs order, and struck out the application for declarations.
[25] Both judgments of Judge Newhook addressed the security for costs order made in 2014. To that extent, the rationale and the language of Judge Kirkpatrick when fixing security was relevant to the application to vary the order before Judge Newhook, and relevant to this appeal as to whether the Judge was wrong, as a
matter of law, to reach the decision he did.
14 Te Whare O Te Kaitiaki Ngahere Inc v Director-General of Conservation, above n 7, at [13].
15 Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council, above n 8, [18].
[26] Mr Tobeck says that the order for security for costs of 3 March 2014 was clear as to the obligation on the appellant to provide security, but it became “ambiguous” when Te Whare pleaded its case against fewer respondents. Mr Tobeck refers to Environment Court Judge Kirkpatrick saying that the quantum for each of the five applications was set at $5,000, explained further by reference to a total sum for security of $25,000. Mr Tobeck therefore submits that this court should not regard the order for security for costs as standing at $25,000 when it was intended to accommodate five parties. To strike out proceedings where there has been a failure to comply with “an ambiguous court order” is submitted unjust, and against the public interest.
[27] Te Whare has to acknowledge that money held to its account for the purpose of security could not include funding from the Environment Legal Assistance Fund (ELA). It has received such a grant, but the terms of that grant are such that it is not available to meet an order for security for costs, or to meet costs orders generally.
[28] Mr Tobeck says that the Environment Court made an error of law based on a mistake of fact because Te Whare did not submit that ELA funding was available to meet costs orders, or security for costs. The Judge was critical of the fact that the respondents had to make their own enquiries about ELA funding, but Mr Tobeck said that did not come into the reckoning of the amount available for security.
[29] Then Mr Tobeck says that the judgment under appeal referred to money being lodged in an account for Te Whare towards costs, but with a tag that if the case did not proceed the funders expected the money back, and the Judge concluded this meant the money would not be available to meet the order for security for costs. Mr Tobeck says that the Environment Court record shows that $3,500 of the $10,000 then held in trust would have to go back to the donors. This is a further mistake of fact said to amount to an error of law.
[30] Mr Tobeck refers to comments made by Judge Newhook that he, Mr Tobeck, had acknowledged that his intended replacement proceedings were very generalised
or aggregated in their allegations, and would need particularisation.16 Mr Tobeck
16 Te Whare O Te Kaitiaki Ngahere Inc v Director-General of Conservation, above n 2, at [20].
says that he made no such acknowledgment or concession to the court regarding further particularisation of the amended pleadings, nor that they would result in a very significant number of allegations, and any particularisation would still leave them the same. This was submitted to be a mistake of fact material to judgment, and an error of law.
Case for the respondents
Submissions for the Council
[31] Mr Logan for the Council submits that no material error of law is made out and the appeal should be dismissed, as this appeal is limited to questions of law.17
The principles attending such an appeal are set out in Ayrburn Farms
Estates Ltd v Queenstown Lakes District Council.18
[32] Mr Logan says that security in the sum of $25,000 was ordered, and when four of the then five parties applied to strike out Te Whare’s proceedings for failure to provide the security ordered, that was opposed. Te Whare said that it intended to file amended pleadings, that it sought to stay the order for security for costs, and that the proceedings were in the public interest.
[33] Te Whare applied to rescind or vary the order for security for costs based on the intent to file amended pleadings and to stay the order for security for costs, repeating that the proceedings were in the public interest and that Te Whare was in receipt of ELA funding.
[34] By 2 May 2016, Te Whare’s written submissions in the Environment Court seemed to recognise that with one respondent out of the running (Mr Cowan), it still had to find $20,000 for security for costs in respect of the four respondents. Then Te Whare decided not to proceed against another of the four remaining respondents.
[35] The learned Judge weighed all issues in deciding whether to rescind or vary the order for security for costs and declined to do so. Mr Logan submits that the
17 Resource Management Act 1991, s 299.
18 Ayrburn Farms Estates Ltd v Queenstown Lakes District Council [2012] NZHC 735, [2013] NZRMA 126.
order for security for costs was clear, and while the total amount of security might have been reduced to reflect the number of respondents engaged in the proceedings, the court was justified in refusing to vary the order. The result is that security for costs has not been provided and Te Whare has been in default for over two years. Further, Mr Logan says that Te Whare could not on the evidence provide $15,000 by way of security, even if the order were reduced to that amount to reflect three respondents. The affidavit sworn as to the security which is available shows that the funds held, less than $15,000, are exceeded by the unpaid costs awarded against Te Whare.
[36] Mr Logan submits that there is no warrant for the submission that the Judge made an error as to the availability of ELA funding relevant to security, or the security for costs ordered. He says that even if security of $15,000 is ordered, Te Whare cannot meet that, on the evidence.
[37] Mr Logan addressed the intended amended pleadings which would reduce the declarations sought to 12 in number, and submitted that did not cure the problems inherent in the decision to strike out. In effect, it simply reshuffled the matters which would need to be proved, and it was not clear how the declarations sought could properly be made.
[38] Substantively, Te Whare’s pleadings rely on s 310 of the Act, alleging “dangerous offensive noxious or objectionable” acts or omissions. The consent conditions pleaded to be breached are not identified and the declarations sought refer to “incorporated document requirements” which are neither identified nor particularised. The declarations are sought against all respondents indiscriminately (and in some cases “jointly and severally”), but there is still no identification of which party is subject to the declaration and whether as a consent holder or
otherwise. Judge Kirkpatrick said:19
But there are also real issues confronting the application for declarations, including whether the declarations as sought are within the scope of section 310 of the Act and whether the affected persons are properly the subject of such declarations when they are not the relevant consent holders.
19 Te Whare O Te Kaitiaki Ngahere Incorporated v TBFree NZ Limited, above n 3, at [38].
TBFree
[39] Counsel for TBFree submitted that the judgment under appeal was given in the context of Te Whare having failed for two years to pay any part of the order for security for costs, or providing evidence that it could pay the security, even at the reduced amount of $15,000 for which it contended, and it did not streamline or particularise its pleading despite prompting. The outstanding costs orders are referred to. It is submitted that the Judge was entitled to bring these matters to account and that they were not immaterial, so this did not constitute an error of law.
[40] It is submitted that the orthodox approach to alleged mistakes of fact amounting to errors of law is whether conclusions are reached without evidence or without a reasonable basis, given the evidence, or that there was a failure to bring to account relevant considerations or that irrelevant considerations were taken into
account.20 Then such errors which are material may justify the court’s intervention
on appeal. This court should not allow an appeal simply because it would have reached a different view, for whatever reasons.
Director-General of Conservation
[41] The Director-General made submissions in the main concurring with the respondents’ general argument that the appellant has failed to identify a demonstrable error of law which would justify this court allowing the appeal.
[42] The Director-General agreed with the other respondents that the initial
$25,000 security for costs order was a modest sum as between the five respondents first engaged, given the likely costs they would face. This figure remained comparatively modest notwithstanding that there were now only three respondents.
[43] The submission by the appellant that the initial security for costs order was ambiguous, is rejected by the Director-General on the basis that any “ambiguity” arose from the appellant’s continued non-compliance, and there was nothing
requiring clarification about it. Indeed, the appellant sought to vary an otherwise
20 Countdown Properties (Northlands) Ltd v Dunedin City Council, above n 10, at 153, followed recently in Ayrburn Farm Estates Ltd v Queenstown Lakes District Council, above n 18, at [34]-[36].
clear order in what it said were changed circumstances, not clarify an order which had been in any way unclear from the outset.
[44] Regarding the (non) availability of ELA money to meet any security for costs order, the Director-General does not accept the Judge made any error of fact which might found an error of law. Furthermore, any error was not material, as the Judge reached his decision that the appellant had not even half of the $25,000 available to meet security “leaving aside” the question of the availability of the ELA funding. Any error that may here arise in terms of what money was or was not available to the appellant for security for costs, resulted from the appellant’s own admitted failure to file any affidavit evidence at the time as to its financial position.
New evidence on appeal
[45] On appeal to this court, the appellant has sought to adduce an affidavit of Mr Humphris, which is opposed by the respondents. Mr Humphris deposes that there is $14,736.91 available to meet a varied costs order, of which $14,700 has been transferred to the appellant’s solicitor’s trust account. Of that, $1,672.50 has been posted as costs in this appeal. There is then $3,500 comprised of donations which must be repaid if they are not used for security. In this context, Mr Humphris deposes his belief that there is the wherewithal to meet an order of $15,000. As the respondents correctly point out, no reference is made to the appellant’s outstanding costs liability.
[46] The respondents say that the appeal is concerned with a question of law in terms of the Judge’s decision at the time. Accordingly, they say that this evidence, which deposes to the state of Te Whare’s affairs now, as opposed to the relevant time, is not cogent and therefore fails to meet one of the limbs of the standard three-part test for admission of new evidence on appeal. They submit that to ignore costs liabilities in excess of $30,000, as the affidavit does, , was simply not credible given the argument that Te Whare is in a position to post the requisite security for costs.
[47] I do not think I should ignore this evidence. It is on point and is a sincere and demonstrative attempt to meet the reduced security which Te Whare says should apply.
Deficiency in the Pleadings
[48] Te Whare’s attempts to consolidate its claims and the relief sought are referred to above. The efficacy of the amended pleadings has been the subject of judicial scepticism. In his 11 May 2016 judgment, Judge Newhook referred to the application in the following terms:21
The intended amended application, while on its face appearing to seek
12 declarations, applied a technique of aggregating activity sites, resource consents and documented requirements including conditions of consent. Hence, each of the 12 items related to many complaints in relation to many sites and many resource consents.
[49] Judge Newhook referred to various concessions he considered Mr Tobeck to have made, and which Mr Tobeck denies, regarding further work that would have to be done to particularise the pleadings in a manageable form. The Judge was clearly alive to the notion that the scope of the proceedings was wholly unmanageable from the start, but the appellant had remained set on its course despite intimations from the bench that a very different approach would be required.
[50] Mr Tobeck also candidly acknowledged that the intended amendment to the pleadings amounted to an aggregation which itself would require re-particularisation. His honest acknowledgement is that the clear suggestions by the senior Judge of the Environment Court and the High Court at earlier times, had not borne fruit through the magnitude of the task. Sometimes it is best to start afresh.
[51] Judge Newhook’s decision to strike out the proceedings on the basis of the
sustained deficiency in pleading, quite apart from the security for costs issue,
followed from his short and damning appraisal of the appellant’s pleading, that “the
21 Te Whare O Te Kaitiaki Ngahere Inc v Director-General of Conservation, above n 2, at [7].
state of the proceeding would be in no better shape if the intended amended application were to be lodged, than at any earlier time of the proceedings”.22
[52] Heath J had been cautiously optimistic about the prospect of the pleadings being improved. He referred to retention by the appellant of legal counsel in the person of Mr Tobeck, and the possibility of “exemplar” declarations envisaged by Dunningham J in an earlier decision.23 Heath J was concerned only with the natural justice point arising out of Judge Newhook’s initial decision to strike out the proceedings without hearing from the parties. Equally, his comments were made
prior to the filing of the “intended” amended pleadings.
[53] The question remains in this court whether the pleading can be rectified by recourse to the amended pleadings which the appellant proposes to file and whether that opportunity should be given. I consider that part of the answer to this question lies in the overarching question of whether the declaratory relief sought is appropriate in a case of this nature, which is replete with factual issues regarding so many different events.
[54] The amended pleadings, despite appearing to condense the scope of declarations, suffer from serious issues including want of precision. The following proposed declaration, one of 12, will suffice by way of example:
4. Wind Drift
That between April 2006 and August 2010 the Respondents, either jointly or severally at Arahura Taramakau, Karamea, Mikonui North and South and Poerua, Mt Hercules, Mt Price, Whateroa Karnback in the course of applying Sodium Monoflouroacetate was dangerous, offensive and objectionable beyond the target area and contrary to the applicable Resource Consents and incorporated documented requirements.
[55] What the re-formulation and condensation of the various declarations gain in brevity, they lose, I think fatally, in specificity. As the respondents say, and as identified as early in the proceedings as Judge Kirkpatrick’s 2014 judgment, it remains unclear who the relevant consent holders are for each declaration. This is not
cured by the catch-all reference to “either jointly or separately”: the declaration
22 Te Whare O Te Kaitiaki Ngahere Inc v Director-General of Conservation, above n 2, at [51].
23 Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council, above n 8.
sought, to the extent that it crystallises a certain position as a matter of fact or law, must be more precisely framed.
[56] Quite apart from how that declaration might be given, in the context of all the necessary elements that would need to be demonstrated as matters of fact, there remain real questions as to the utility of the declaratory relief sought, and whether as a matter of law, it would be possible for the relevant court to give declaratory relief of this nature.
[57] The declarations sought are statutory in nature, and would be construed by the Environment Court in terms of s 310 of the Act. It has been held that declarations made under this provision must achieve a certain degree of specificity in relation to the act, omission, function, power, right, or duty in respect of which the declaration is sought. The court cannot give an “open-ended” declaration which might affect the rights of others who were not parties to the proceedings.24
[58] Judge Newhook struck out the proceedings, given the deficiency in their formulation, in the wider context of the declaratory relief sought. My consideration of the present state of the proceedings and the proposed amendments to the pleading, leads me to the same conclusion as Judge Newhook. I do not consider that the pleadings would be in any better form were they to take the form of the intended amended application. They are so deficient that I cannot see how they can be rectified without an entirely fresh approach. The intended amendment was the chance to do so. It follows that the Judge has not made an error of law in reaching the conclusion which he did on this point.
[59] On the whole, I am not convinced that the pleadings as they stand, or as they might be amended, properly fall within the scope of declaratory relief which the Environment Court, in consideration of s 310 of the Act, might contemplate, but otherwise I consider them to fall fatally below what is required to govern the
litigation.
24 Coalition of Residents Associations Inc v Wellington City Council EnvC Wellington W090/0,
13 December 2001.
Security for costs
[60] The appellant has yet to post anything at all in the way of security for costs and rests its case on the need for clarity, whether the security should be $15,000 or
$25,000. The argument today is that the appropriate figure for the now three respondents would have been $15,000. I might have thought that a variation on that basis was the proper course before Judge Newhook, as a logical construction of the terms of Judge Kirkpatrick’s initial order. However, the Judge was also entitled to consider the fact that no security had been posted, and that the evidence before him was that the appellant did not have the means to meet even a reduced order of
$15,000. Indeed, I consider that remains the position in this court, at least it is not certain. In these circumstances, I do not consider that the Judge erred in respect to his conclusions about the availability of ELA funding to meet costs orders. In any event, any error of fact which may have been made, did not amount to an error of law in circumstances where no security at all had been provided and where the funds held were insufficient to meet even an order of $15,000. Further, there are the extant costs orders made against the appellant and which have recently become the subject of garnishee proceedings. As the second respondent submits, these were all relevant considerations open to the Judge, and the Judge did not err by having recourse to them.
[61] I understand the appellant’s characterisation of the application for a variation as a “clarification” of an ambiguous order, but it is not an accurate description of what had occurred. The initial order was clear in its terms and construction. As the first respondent notes, the appellant accepted that when the number of respondents in the proceedings was reduced from five to four, it would still need to find $20,000 by way of costs. Were the Judge considering the quantum of the order in a vacuum by reference only to the number of respondents, he should have recognised that the initial order contemplated $25,000 comprised of $5,000 per respondent. This was not, as the respondents correctly say, a reference to the likely costs of each and any respondent, but a figure to properly mark the fact that the appellant was involving each in these proceedings. Were that the only consideration, I consider the Judge should have granted the variation sought. However, that was not the only matter before the Judge. He was faced with continued non-payment of security for costs,
well after an initial order, in circumstances where the appellant could not meet even the varied order sought, and where it had outstanding costs obligations. On appeal, I am concerned with the position as it was before Judge Newhook, but will not ignore today’s reality.
[62] I consider that Judge Newhook was entitled to strike out the proceedings on the basis that security for costs had not been met. None of the errors of fact advanced by the appellant amounts to an error of law which would warrant this court intervening.
Conclusion
[63] I uphold the Environment Court’s decision to strike out the proceedings, on the grounds that the deficiency in the pleadings is such that they should not found the litigation, and given the opportunity to amend earlier that deficiency, which has not been taken. This of itself is fatal to this appeal.
[64] I have some more reservations about strike out for non payment of security for costs, but not to the extent as to allow the appeal. The appellant has a point but has not made its case for the court to tolerate non payment.
Observation
[65] This appeal has troubled the court. There are well meaning persons behind Te Whare. These concerns are genuine, and in the public interest. However, there is a basic needs for litigation to be advanced in an orderly and manageable way, starting with a clear understanding of what is alleged, against whom, and on which that is based. Mr Tobeck has been frank about his difficulties and this judgment is not a criticism of him. Aside from declaratory relief Te Whare’s concerns may take other lawful courses. This observation is made to recognise the underlying concern for the public good which founded this litigation.
Disposition
[66] The appeal is dismissed on both grounds advanced. Costs are reserved.
………………………………………….
Nicholas Davidson J
Solicitors:
Menzies Marshal Law, Winton
Ross Dowling Marquet Griffin, Dunedin
Chapman Tripp, Christchurch
Crown Law, Wellington
1
7
0