Lai v Auckland Council

JurisdictionNew Zealand
Judgment Date21 September 2011
Neutral Citation[2011] NZEnvC 308
Date21 September 2011
Docket Number(ENV-2010-AKL-000160)
CourtEnvironment Court

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

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


Trusts Charitable Foundation Incorporated
S274 Party

Decision No. [2011] NZEnvC 308



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manager was overseas and no action taken on receipt of “out of office” return email — whether the objection had been withdrawn — whether the judgment was perfected — whether the report should be recalled.

  • A. The report issued by the Court on 20 July 2011 is recalled.



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.


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  • (a) Whether or not the objection was withdrawn; and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Was the objection withdrawn?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

The Council submitted that the objection was not withdrawn because it was not properly brought to the attention of a Registrar until after the report had issued.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

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.


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.


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.


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.


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 before me. With email correspondence the position is slightly more complicated. An email can be received, but not opened, and as with ordinary correspondence, it can be opened but not actioned. In this case the email was received by the Court because the out of office reply was sent. Accordingly I find that the email was received by the Court, but significantly it was not actioned because it was not opened

The more significant question is whether or not the proceedings are withdrawn because notice has been given to that effect, or whether the Court needs to take a formal step to grant leave or approve the withdrawal in order for it to take effect. It is not appropriate to lay down any hard and fast rules which have binding precedent on this topic. This is because each factual situation will be different. In this case it was for the objectors to decide whether or not they wanted to continue with their objection. Having decided that they did not want to continue with their objection, Mr Wright's Memorandum to the Court was advice to this effect; rather than an application which the Court needed to action in order for the withdrawal to be effective. I take this view because of the settlement that had been achieved between the parties which clearly envisaged that the proceedings would be at an end once a notice of discontinuance had been filed. In the event, the notice of discontinuance was not filed but the objectors sought to implement the settlement agreement by indicating to the Court in another way that the proceedings were at an end.


It is significant, in my view, that the parties treated the proceedings as withdrawn, as there was no communication from either the Council or TTCF to Mr Wright's email of 8 July which had been copied to them, challenging the withdrawal. Furthermore, the terms of the settlement agreement support the view that, from the parties' perspective, the proceedings were at an end. If the objection between the parties had been resolved in the manner they thought, then as a matter of fact there was nothing for the Court to determine at the time it issued its report.


The stance taken by the Council in respect of the withdrawal is one which is coloured by the fact that it has seen the report and found...

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