Northland Regional Council v Bird

JurisdictionNew Zealand
CourtEnvironment Court
JudgeC J Thompson,Environment Judge
Judgment Date08 October 2012
Neutral Citation[2012] NZEnvC 212
Date08 October 2012
Docket NumberENV-2012-AKL-000097

Decision No: [2012] NZEnvC 212

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge C J Thompson

ENV-2012-AKL-000097

In the Matter of an application for an Enforcement Order under s316 the Resource Management Act 1991

BETWEEN
Northland Regional Council
Applicant
and
Raymond James Bird Gary Michael Beckham Sovereign Station Trustee Ltd Mangonui Development and Civil Construction Ltd
Respondents
Counsel:

J C Dawson for the Respondents

M R Harborow for the Northland Regional Council

Application to strike out or stay application for warrants of committal — Regional Council obtained interim enforcement order against respondents — informations alleging offences against Resource Management Act 1991 sworn — respondents served with application for warrants of committal with supporting affidavit evidence and committed for trial — respondents concerned of potential consequences of hearing application for warrants of committal proceeding before criminal trial: (1) that right to silence of suspected or charged person would be breached; and (2) that if warrant proceeding successful, and resulted in imprisonment, respondents might be liable to further imprisonment (or penalty) for same offences if convicted at trial — whether Environment Court had jurisdiction to issue a warrant of committal in these circumstances — whether concerns of respondents made out.

Held: An enforcement order was “in the nature of an injunction”. The intent of 278 RMA (EC has powers of a District Court) coupled with s79 District Courts Act (nature of proceedings for enforcement of judgment) was plainly to give the District Court, and by extension the EC, the power to enforce its orders by warrants of arrest and imprison, if the situation called for it. The EC therefore had the jurisdiction to enforce its orders, where appropriate, by issuing an order or warrant for committal.

Where there were extant criminal and civil proceedings there was no compulsion to provide an explanation in either set of proceedings, and certainly not in the first in time( V v C (EWCA)). The right to silence was therefore not affected. If the position of the defendant/respondent was that there was a positive defence, then whatever material was put forward was likely to be exculpatory, rather than incriminatory, so there could be no prejudice in putting it forward ( Davidson v Registrar of Companies and General Distributors Ltd v Hilliard). Section 405 Crimes Act 1961 (civil remedy not suspended) also provided that no civil remedy be suspended by reason that such act or omission amounted to an offence.

Finally, the sentencing Judge would take into account any period of imprisonment that the then convicted person had already served for the same wrongdoing, thereby alleviating the possibility of repeat punishment in both proceedings.

Application declined.

DECISION ON APPLICATION TO STRIKE OUT OR STAY AN APPLICATION FOR WARRANTS OF COMMITTAL
Introduction
1

The Northland Regional Council sought and obtained an interim Enforcement Order against the Respondent on 6 April 2011. The Order, in very broad terms, required them to cease earthworks and other works being done on a property at 573 Kaimaumau Road, Waiharara. That Order was later varied by consent on 7 September 2011. In the meantime, Informations alleging offences against the Resource Management Act by all four Respondents were sworn. The Respondent/Defendants appeared in answer to those Informations and the two individual Respondent/Defendants, Mr Bird and Mr Beckham, were remanded on bail. In April 2012 a second set of Informations was laid, charging all four Defendants with continuing offences said to have occurred on dates between and including 6 October 2011 and 26 March 2012, and alleging a contravention of the (varied) Enforcement Order of 7 September 2011.

The present application
2

The present set of proceedings began on 5 June 2012 when the individual Respondents were served with an application for Warrants of Committal, with supporting affidavit evidence. In the meantime, they had elected trial by jury on the charges and were committed for trial in July 2012. An Indictment was served on the Respondents on 28 August 2012 and it included four counts alleging the contravention of the Enforcement Order between 9 April 2011 and 23 May 2012.

3

The two individual Respondents, Mr Bird and Mr Beckham, have now lodged an application to Strike Out or Stay the application for Warrants of Committal. I will deal first with the argument that this Court does not have jurisdiction to issue a Warrant of Committal in these circumstances.

Jurisdiction
4

Mr Harborow first put forward the submission that the Environment Court's power to deal with a person who wilfully fails to comply with an Order made by the Court requiring that person to do, or refrain from doing, a specified act arises from 282 of the Resource Management Act. That section provides:

282 Power to commit for contempt

  • (1) If any person -

    • (a) Wilfully insults, assaults, threatens, or intimidates the Environment Court or any member of it or any special advisor to or officer of the Environment Court, during a sitting of the Environment Court, or in going to or returning from any sitting; or

    • (b) Wilfully interrupts the proceedings of the Environment Court or otherwise misbehaves while the Environment Court is sitting; or

    • (c) Wilfully and without lawful excuse disobeys an order or direction of a member of the Environment Court in the course of any proceedings before the Environment Court-

    any officer of the Environment Court, with or without the assistance of any constable or other person, may, in accordance with an order given by a member of the Environment Court, take the person into custody and detain him or her for a period expiring not later than 1 hour following the rising of the Environment Court, and an Environment Judge, may, if he or she thinks fit, by warrant under his or her hand, commit the person to prison for any period not exceeding 10 days or impose a fine not exceeding $1,500.

  • (2) A warrant under subsection (1) may be filed in any District Court and shall then be enforceable as an order made by that Court.

Mr Harborow's submission is that the relevant power arises under (1)(c) — the enforcement order being … an order.. of a member of the Environment Court in the course of proceedings … it being his contention that while (1)(a) and (b) are confined to behaviour while the Court is sitting, that restriction is not to be read into (1)(c).

5

I have to disagree with that view, and I accept the submission made by Mr Dawson on this issue. I do not think that this section provides a pathway to enforcement of an Order of this kind. It is the same power, given on the same terms, as that given to the District Court under s112 of the District Courts Act 1947, which has long been interpreted as solely a contempt in the face of the Court power. As is noted in District Courts Practice (Civil) it is the same power as is given to the County Courts in England under the County Courts Act 1984, which Arlidge Eady and Smith on Contempt (Fourth Ed) at 10–136 notes is a power to deal only with contempt in the face of the Court citing, inter alia, Bush v Green [1985] 1 WLR 143.

6

It is to be noted that para (b) uses the terms proceedings and sitting as synonymous, and the reference to the power to detain … for a period expiring not later than 1 hour following the rising of the … Court … confirms...

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