Lai v Auckland Council

 
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Decision No. [2011] NZEnvC 308

BEFORE THE ENVIRONMENT COURT

(ENV-2010-AKL-000160)

In the Matter of the Public Works Act and in the matter of Objections to a Notice of Intention to take land pursuant to Sections 32(3) and 24 of the Act

Between
Choong Huat Lai and Luan Joo Tan
Objectors
and
Auckland Council (formerly Waitakere City Council)
Respondent

and

Trusts Charitable Foundation Incorporated
S274 Party

Application to have report recalled — Environment Court unaware objectors had asked to withdraw objections as proceedings had been settled before report issued — email had been sent to Court Registry with memorandum attached advising proceedings were settled and copied to opposing counsel — case manager was overseas and no action taken on receipt of “out of office” return email — whether the objection had been withdrawn — whether the judgment was perfected — whether the report should be recalled.

Held: The email had been received by the Court as evidenced by the return “out of office” email. However it was not actioned because it was not opened. But the memorandum was not an application which the Court needed to action in order for the withdrawal to be effective. It was significant that the parties treated the proceedings as withdrawn – the withdrawal was not challenged and the settlement terms supported this view.

If the Court had been made aware of the memorandum, in the absence of any further communication the report would not have been issued unless the Court had exercised its discretion under s24(12) Public Works Act 1981 (objection to be heard by Court) to do so. That discretion should only be exercised when there were strong public policy reasons to issue a report.

As there was no procedure provided for in the Resource Management Act 1991 (“RMA”) to recall a judgment, the Court could look to the District Court Rules (DCR) for guidance, but was not bound by those rules. The general principle was that a judgment once delivered had to stand, but where it had not been perfected a recall might result, depending on the circumstances ( Horowhenua Council v Nash (No 2)).

When the Court issued a decision it was required to be sealed and that action would therefore on the face of it appear to prevent the court from recalling its report. The Environment Court's procedures for sealing were different to those in the District or High Court which first issued the decision and the order was then sealed. The sealing provisions of r531 (now r12.8 DCR) was a procedural duty and s278(1) RMA did not apply to include them as part of the Environment Court's jurisdiction ( Nimbus Holdings Ltd v Christchurch City Council). The Environment Court had its own statutory procedure for the use of its official seal, pursuant to s295 and s297 RMA (Court decisions are final and decisions of court to be in writing).

There was a difference between a decision being authenticated with the seal of the Court, and the process of sealing a judgment, to which the applicable District Court rule relating to the recall of judgments applied ( Nimbus Holdings Ltd). The rule distinguished between the judgment in the sense of the order of decree, and “the written reasons” given by the Court for its decision. The sealing of a report by the Court did not create an impediment to an application for recall, as the affixing of it was simply for authentication purposes. To hold otherwise would mean that there were no circumstances in the Environment Court where a judgment could be recalled, given that the practice for all Environment Court decisions was to have the seal affixed to them.

The fact that the parties had satisfactorily settled the proceedings prior to the report being issued was the kind of special reason that justified the recall of the report. There was nothing to suggest that recall would be unfair to the Council and the report had limited precedent value. There was no need for there to be specific unfairness to the objectors if the report was not recalled.

Order made recalling the report.

DECISION OF THE ENVIRONMENT COURT IN RELATION TO THE RECALLING OF A JUDGMENT
  • A. The report issued by the Court on 20 July 2011 is recalled.

REASONS FOR DECISION

Introduction
1

On 20 July 2011 the Court issued its report in these proceedings unaware that twelve days earlier the objectors had asked to withdraw their objection because the proceedings had been settled. The objectors have now applied to the Court to recall the report, but the Council opposes. Trusts Charitable Foundation Incorporated (“TTCF”) abides the decision of the Court.

2

There are two issues for me to determine:

  • (a) Whether or not the objection was withdrawn; and

  • (b) Whether or not the Court should recall its report.

Was the objection withdrawn?
The issue
3

The Council submitted that the objection was not withdrawn because it was not properly brought to the attention of a Registrar until after the report had issued. In order to understand this argument, the events which have led to this application being made must be outlined.

The facts
4

On 8 July 2011, Mr Wright, who was then counsel for the objectors, sent an email to the Environment Court Registry attaching a memorandum advising that the objection had settled, with the consequence that the objectors sought leave to withdraw it. The memorandum outlined that a term of the settlement agreed was that neither the objectors nor the respondent would seek costs. The memorandum was signed by counsel for the objectors, but the email attaching it was copied to counsel for the Council and TTCF.

5

Because the case manager to whom the email was sent was overseas on leave, the email was not actioned until her return after 3 August 2011. Nonetheless, on 8 July an “out of office” return email was sent from the case manager's email to Mr Wright advising of her absence and asking that the email be forwarded to another case officer within the registry. The phone details of this case officer were provided. Mr Wright did not follow the course of action requested by the case manager in the “out of office” reply. Accordingly, the Court did not become aware of the memorandum until the case manager returned from leave, by which time the report had been issued. Neither the Council nor TTCF contacted the Registry, either after receiving Mr Wright's email and memorandum or after the report had been issued, until the Court became aware of Mr Wright's memorandum and invited a response.

6

The new solicitor for the objectors, in his submissions, helpfully outlined a copy of two paragraphs from the settlement agreement. 1 Those clauses specifically deal with the withdrawal of the objection, and require a notice of discontinuance in respect of the objection proceedings to be filed immediately condition 13. 2 has been satisfied or waived. The inference I draw from these clauses in the settlement agreement is that all parties believed that once clause 13.2 had been satisfied or waived, the proceedings would be withdrawn by the filing of a notice of discontinuance. As it turned out, a notice of discontinuance was not filed; rather the memorandum was filed seeking leave for the proceedings to be withdrawn.

Analysis
7

The Council submitted that it was incumbent on the objector's counsel to redirect the email to a staff member who was in the office, as the “out of office” reply requested. This failure meant, it was argued, that the objection was not successfully withdrawn until after the report was issued. By analogy, Mr Casey QC for the Council referred to Johnston v Waikato Regional Council where the Planning Tribunal held that for a notice of appeal to be lodged it had to be received by a member of the Registrar's staff.

8

The Johnston case concerned a notice of appeal which had been purportedly lodged but had never been received by the Court. Because of the difference between

ordinary and email correspondence, I do not find this case of much help in determining the issue...

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