Te Whare O te Kaitiaki Ngahere Incorporated v West Coast Regional Council
[2016] NZHC 1782
•2 August 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-000418 [2016] NZHC 1782
BETWEEN TE WHARE O TE KAITIAKI
NGAHERE INCORPORATED Appellant
AND
WEST COAST REGIONAL COUNCIL First Respondent
AND
TB FREE NZ LIMITED Second Respondent
AND
DIRECTOR-GENERAL OF CONSERVATION
Third Respondent
Hearing: On the papers Counsel:
A S P Tobeck for the Appellant
A J Logan for the First Respondent
J Knight & J Upson for the Second Respondent
R Dixon for the Third RespondentJudgment:
2 August 2016
JUDGMENT OF NATION J
[1] Te Whare O Te Kaitiaki Ngahere Incorporated (Te Whare) appeals the decision of the Principal Environment Court Judge declining to vary an earlier order that Te Whare provide security for costs and striking out Te Whare’s application for declarations because of the non-payment of security for costs.
[2] The issue I have to consider is whether the appellant should have to provide security for costs on its appeal.
TE WHARE O TE KAITIAKI NGAHERE INC v WEST COAST REGIONAL COUNCIL & ORS [2016] NZHC 1782 [2 August 2016]
[3] Part of the background to the present appeal is recorded in a judgment of Dunningham J of 13 August 2014. 1 She upheld decisions of the Environment Court refusing Te Whare leave to state a case on appeal for the High Court, an order requiring Te Whare to provide security for costs of $25,000 and an order requiring Te Whare to pay $10,000 in costs to one of the 39 parties in respect of which declarations had been sought. The background is as follows:
[1] Te Whare O Te Kaitiaki Ngahere Incorporated Society (Te Whare) is an organisation which is vehemently opposed to the use of 1080 poison.2 It became concerned about alleged contraventions of conditions of 12 resource consents granted by the West Coast Regional Council to the Animal Health Board Incorporated3 to use 1080 for pest control.
[2] It took those concerns to the Environment Court, filing an application for 761 declarations against 39 different persons and organisations directly or indirectly involved with the distribution and use of 1080. The application was supported with 23 affidavits, with accompanying exhibits totalling nearly 1,500 pages, and including several hours of video footage.
[3] Unsurprisingly with proceedings of such magnitude, a number of the parties named in the proposed declarations applied to the Environment Court to strike out the application as it related to them or, in the alternative, to fix security for costs.
[4] In due course, 323 of the declarations were either struck out or withdrawn,4 but some 438 claimed declarations remain on foot, albeit still subject to applications to have them strike them out [sic].
[4] The Court of Appeal declined Te Whare special leave to appeal against
Dunningham J’s judgment.5
[5] On 21 January 2015, the Environment Court struck out Te Whare’s proceedings because it had failed to provide security for costs as ordered by the Environment Court on 3 March 2014.6 That decision was overturned by the High
Court on 9 November 2015.7
1 Te Whare O Te Kaitiaki Ngahere Incorporated Society v Animal Control Products Limited
[2014] NZHC 1903, (2014) 18 ELRNZ 175.
2 Technically known as sodium monofluoroacetate, but more commonly known as 1080.
3 Now TB Free New Zealand.
4 In either case with the agreement of a lawyer who was briefly engaged by Te Whare.
5 Te Whare O Te Kaitiaka Ngahere Inc Society v West Coast Regional Council [2015] NZCA 356.
Despite the different spelling of the applicant’s name, this decision regards the same parties.
6 Te Whare O Te Kaitiaki Ngahere v TB Free NZ Ltd [2015] NZEnvC 8.
7 Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2015] NZHC 2769.
[6] In a hearing of 5 May 2016, the Environment Court, with the agreement of all parties, dealt with two issues:
(a) whether an order that the proceeding be stayed until security is provided should be varied or revoked; and
(b) whether the proceeding should be struck out because of Te Whare’s
failure to give security for costs.
[7] The Principal Environment Court Judge concluded:8
[53] It is quite inappropriate to breathe further life into proceedings that have become stale and are still being litigated in a highly inefficient manner at considerable cost to other parties. The application to rescind or vary the order for security for costs is refused.
He struck out the proceedings.
[8] On 30 May 2016, Te Whare, through a notice signed by its counsel, filed a notice of appeal against the Environment Court’s striking out of the proceeding and not varying the order for security for costs on the grounds:
1. The Learned Environment Court Judge erred in law in not varying the order for security for costs.
2. The Learned Environment Court Judge erred in law in concluding that the money that the appellant had in their bank account included a grant from the Environment Legal Assistance Fund.
3. The Learned Environment Court Judge erred in law taking into account that the appellant had not filed an affidavit as to grants obtained from the Environment Legal Assistance Fund and the manner of disbursement of them.
4. The Learned Environment Court Judge erred in law in concluding that particalarising [sic] the proceeding could result in the making of a very significant number of allegations.
5. The Learned Environment Court Judge erred in law in concluding that some money that the appellant has would not be available to meet the order for security for costs.
8 Te Whare O Te Kaitiaki Ngahere Inc v Director-General of Conservation [2016] NZEnvC 89 (EC Decision].
[9] On 13 July 2016, the High Court gave notice that the proceedings would be heard over a half-day on 31 August 2016.
[10] A case management conference was scheduled for the proceedings on 11 July
2016. On 6 July 2016, counsel for all parties signed a memorandum seeking certain directions by consent.
[11] In that memorandum, counsel advised the only outstanding issue was over security for costs. Te Whare submitted the Court should exercise its discretion to waive the payment of security for the appeal. The respondents contended that security should be fixed in accordance with the standard formula under r 20.13(3) of the High Court Rules.
[12] The parties proposed that the issue of security be resolved on the papers with Te Whare to file and serve by Monday 18 July 2016 a memorandum setting out the grounds for its waiver request and any submissions in support. The respondents were to file and serve any submissions in response by Monday 25 July 2016. Counsel have again confirmed that this application to waive security can be dealt with on the papers.
[13] On 11 July 2016, through a minute, I directed that, subject to the appeal not being deemed to be abandoned through non-payment of any order that might be made for costs, the appeal would be heard at Christchurch on 31 August 2016 at
10.00 am.
[14] I also directed:
viii. the appellant is to file and serve by Monday 18 July 2016 a memorandum setting out the grounds for its application for waiver of payment for security for costs, an application for waiver of payment for security for costs, any affidavit it relies on and any submissions it relies on in support;
ix. the respondents’ [sic] are to file and serve any submissions in response by Monday 25 July 2016.
[15] On 18 July 2016, counsel for Te Whare, Mr Tobeck, filed a brief
“submissions as to security for costs”. Counsel for the West Coast Regional Council,
Mr Logan, and counsel for the Director-General of Conservation, Ms Dixon, filed submissions and memoranda in opposition on 25 July 2016.
Submissions
[16] In his submissions, Mr Tobeck has said that:
(a) Te Whare has not been required to provide security for costs on earlier appeals to the High Court and to the Court of Appeal;
(b) the proceedings relate to a matter of “high public interest”: the alleged breaches of resource consents and the failure of authorities to enforce the conditions of resource consents; and
(c) the appeal has strong merit as the Environment Court Judge made a number of errors in that:
§he took into account matters which were not the subject of argument;
§ he did not deal with matters that were the subject of argument; and
§ he misconstrued or misinterpreted the submissions of counsel.
[17] In his submissions, counsel did not provide any further detail as to the basis on which he made these assertions of error. He said the appellant was an incorporated society based on the West Coast of the South Island with approximately
40 members from throughout New Zealand. There was no affidavit evidence providing further information as to the nature of the society. There was no assertion that the society was unable to provide security for costs and no information in any affidavit to support such an assertion.
[18] I have received detailed submissions from counsel for the West Coast Regional Council and the Director-General of Conservation. They both refer to the principles which the Supreme Court outlined as applying to a waiver of security for
costs on appeal in Reekie v Attorney-General.9 They both refer to the principle that
9 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
there is a presumption that security for costs will be given and that impecuniosity should not enable an appellant to pursue a case that a solvent litigant would not sensibly pursue. Further submissions are reflected in the balance of my judgment.
Discussion
[19] The principles outlined by the Supreme Court in Reekie v Attorney-General apply also to appeals to the High Court.10 Relevant principles of importance in this case are:
· the presumption is that security will be required;
· if impecuniosity is relied on, the appellant must establish it;
·impecuniosity will not justify dispensing with security if a sensible, solvent litigant would not be pursuing the appeal. To that extent, some assessment of the merits of the case is required;
·it is necessary to consider whether the appeal raises issues of public interest; and
·to the extent that there is an over-riding test, it is whether it is right to require the respondent to defend the judgment under appeal without the usual protection as to costs.
[20] Te Whare has not established that it is impecunious and lacks the means to provide security for costs, although I note the Principal Environment Court Judge dealt with the applications before him on the basis Te Whare was impecunious. On the basis of the agreed categorisation for these proceedings, applying r 20.13(3), the security Te Whare would have to provide is $557.50 for each of three respondents, a total of $1,672.50.
[21] The absence of affidavit evidence as to impecuniosity is significant. In the decision under appeal, the Principal Environment Court Judge noted:11
10 Reekie v Attorney-General, above n 9, at [6].
11 EC Decision, above n 8, at [15].
Mr Tobeck endeavoured to offer me a copy of the applicant’s bank statements, but accepted my criticism that the proper way to advance such factual information would have been to file an affidavit, not only as to money in the bank, but also as to grants obtained from the ELA12 and the manner of disbursement of them.
[22] The decision under appeal refers to Mr Tobeck advising the Judge that Te Whare had approximately $10,000 in the bank account. It appears there was a submission in the Environment Court that, of that $10,000, the $5,000 that had been provided by the ELA could not be used to provide security for costs. The Judge had made it clear that, if Te Whare wished to rely on that submission, it should have
placed persuasive material before the Court, possibly by way of an affidavit.13
[23] Counsel for both respondents referred to the statements made by Mr Tobeck in the Environment Court that Te Whare had $10,600 in its bank account. From their submissions it appears there may have been some confusion over whether the $5,000 available from the ELA was included in that sum or additional to it.
[24] I however deal with the application on the basis Mr Tobeck has not contended in his submissions that Te Whare is impecunious. The information that counsel gave to the Judge, as recorded in the decision under appeal, suggests that Te Whare does have funds sufficient to provide the security that would be required on this appeal.
No previous requirements for security for costs
[25] The fact Te Whare was not required to provide security for costs on previous appeals to the High Court or Court of Appeal does not assist Te Whare. Although such security was not required on two appeals, the High Court has considered it necessary and appropriate to make orders for costs against Te Whare following the dismissal of appeals. On 26 November 2014, the High Court ordered Te Whare to pay costs of $9,215 to West Coast Regional Council and $8,951.15 to TB Free NZ Ltd following the dismissal of its appeals in the judgment of Dunningham J of 13
August 2014.14 Those costs have not been paid. Te Whare has also not paid $10,000
12 “ELA” – Environmental Legal Assistance Fund.
13 At [23].
14 Te Whare O Te Kaitiaki Ngahere Incorporated Society v West Coast Regional Council [2014]
in costs which the Environment Court ordered it to pay to Animal Control Products Ltd in a decision of 18 June 2013.15 The Court of Appeal ordered Te Whare to pay costs to the respondents when declining Te Whare leave to appeal in its judgment of
7 August 2015.16
[26] I accept the submission made on behalf of the Director-General that the fact Te Whare has not paid earlier awards of costs against it demonstrates that protection is necessary for the respondents. It also means, in terms of the relevant Reekie principle, in the circumstances of this case, it would not be right to require the respondents to defend the judgment without protection as to costs.
Public interest
[27] Te Whare has not established that the appeal involves matters of public interest. I accept the submission from Mr Logan that, while there is public interest in administration of the Resource Management Act 1991 and in compliance with resource consents, there is equally a public interest in the efficient and expeditious conduct of litigation in the Environment Court. Proceedings were filed in the Environment Court on 19 July 2012. The respondents filed applications to strike-out and for security for costs on 7 December 2012. The proceedings in the Environment Court were struck-out initially in that Court on 16 April 2013. The security for costs,
as ordered by the Environment Court on 3 March 2014, has never been paid.17 After
the applicant appealed unsuccessfully in the High Court, the Environment Court
struck out the proceedings for the applicant’s failure to give security for costs.18
That decision was overturned on appeal to the High Court but Heath J noted there was a need for counsel to review Te Whare’s case and in the meantime the proceedings were to remain stayed.19 In his decision of 11 May 2016, Judge Newhook noted that Te Whare’s intentions concerning the proceedings were
effectively no further ahead than they were throughout the three previous years,
NZHC 2969.
15 Re Te Whare O Te Kaitiaki Gnahere Inc [2013] NZEnvC 136.
16 Te Whare O Te Kaitiaka Ngahere Incorporated Society v West Coast Regional Council, above n
5.
17 Te Whare O Te Kaitiaki Ngahere Inc v TB Free NZ Ltd [2014] NZEnvC 41.
18 Te Whare O Te Kaitiaki Ngahere Inc v TB Free NZ Ltd, above n 6.
19 Te Whare O Te Kaitiaki Ngahere Incorporated Society v West Coast Regional Council, above n
7.
despite opportunities and even guidance offered by Judge Borthwick in the
Environment Court and two High Court Judges.20
[28] Importantly too, the current appeal does not relate to substantive issues but to the Environment Court’s decision on two interlocutory applications, one for strike- out and the other as to the security for costs which the Environment Court had ordered to be paid by 4 April 2014.
[29] I accept the submission of Ms Dixon, relying on the judgment of the High
Court in Dawson v Independent Election Services Ltd, that:21
A strike out application in itself does not involve matters of public interest. Rather it involves the application of well established principles. Whether those principles were correctly applied in the District Court is not a matter of public interest or public importance.
[30] As was submitted by counsel, the issues on this appeal are confined to the conduct of this litigation. The issue on this appeal concerns the extent to which courts can require the efficient prosecution of a case and compliance with the Court’s orders.
Merit of the appeal
[31] On the basis of submissions and consideration of the Environment Court’s decision, there appears to be little merit in the appeal. Mr Tobeck has not particularised the matters which he says the Judge took into account which were not the subject of argument or referred to any information on the record to justify that assertion. The same can be said of his submissions that the Judge did not deal with matters that were the subject of argument and that he misconstrued or misinterpreted the submissions of counsel.
[32] In his submissions, Mr Logan did refer to the Judge’s recording Mr Tobeck as saying the $10,000 included a grant of $5,000 from the ELA and an exchange between the Judge and Mr Tobeck (apparent from a transcript of the hearing) which indicates that Mr Tobeck had told him the $5,000 was not included in the bank
account.22 I accept Mr Logan’s submission that, even if the Judge did make a mistake in this regard, it would not appear to have been material to his final decision. It was not material because the Judge decided the application on the basis Te Whare was impecunious. It is also not a possible mistake which Te Whare could rely upon when, on this application, Te Whare has not filed any affidavit as to its full financial situation.
[33] In its notice of appeal, Te Whare contends the Judge erred in law in taking into account that Te Whare had not filed an affidavit as to grants obtained from ELA. There would appear to be little merit in that argument. The Supreme Court has said an applicant for waiver must establish that it does not have the means to provide security if that is a ground it is relying upon.23 However, any view the Judge came to over whether the funds should or would have been available was immaterial to his decision. At para [52] of his judgment, he expressed his conclusion on the basis that Te Whare was impecunious and whatever funds it had in the bank were less than half
of the $25,000 it had earlier been ordered to be given as security for costs.
[34] A further ground of appeal was that the Environment Court Judge had erred in law in concluding that some money that Te Whare has would not be available to meet the order for security for costs. Mr Logan, in his submissions, refers to an exchange between Mr Tobeck and the Judge where Mr Tobeck informed the Judge that, of the $10,000, $3,500 had to go back to people who had donated it. As noted above, there was an issue over whether or not the $5,000 available from the ELA could be used to meet an order for costs or for security for costs. It seems unlikely the Judge made a mistake in the way Te Whare has referred to in its notice of appeal but again, if there was any such mistake, it would appear not to have been material to the Judge’s decision.
[35] In its notice of appeal, Te Whare asserted the Environment Court Judge had erred in law in concluding that particularising the proceeding could result in the making of a very significant number of allegations. Mr Logan asserts that, in the transcript of the hearing, there was a lengthy exchange between Mr Tobeck and the
Court wherein Mr Tobeck effectively conceded this assessment by the Judge was correct. Those concessions are recorded at paras [20] and [50] of the decision. The concessions are consistent with previous observations of a Judge of the Environment Court and two Judges of the High Court.
[36] This particular application for waiver has to be considered against the full background of these proceedings, as summarised in the chronology attached to the Judge’s decision. I have also taken into account the judgment of Dunningham J of
13 August 2014, the judgment of the Court of Appeal of 7 August 2015 and the judgment of Heath J in the High Court of 9 November 2015.
[37] The standard directions for appeal require that the appellant should provide security for each respondent in accordance with the standard formula under r
20.13(3) of the High Court Rules. The parties are agreed these proceedings should be categorised on a 2B basis for costs purposes.
[38] I consider a reasonable and solvent litigant would not be proceeding with the current appeal. I accept it would not be just to require the respondents to defend the judgment under appeal without the usual protection as to costs.
[39] Accordingly, Te Whare’s application for an order waiving the requirement for security for costs is declined. Te Whare is ordered to pay $1,672.50 to the High Court as security for costs for each of the three respondents. That sum is to be paid to the High Court within 10 working days of this judgment, i.e. by 17 August 2016. If payment is not made by that date, time being of the essence, the appeal will be deemed to be abandoned and an order will be made without further notice dismissing the appeal. This judgment is not to affect other directions set out in my minute of 11
July 2016, in particular the steps which Te Whare is required to take if it intends to pursue this appeal.
Solicitors:
Menzies Marshal Law, Winton
Ross Dowling Marquet Griffin, Dunedin
Chapman Tripp, Christchurch
Crown Law, Wellington.
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