Wayne and Nicola Picard v Tasman District Council
 NZEnvC 108
BEFORE THE ENVIRONMENT COURT
Environment Judge B P Dwyer sitting alone under s279 ofthe Act
In the Matter of an appeal under section 120 of the Resource Management Act 1991
Application for costs against resource consent applicants — appellants filed an appeal against a decision of the respondent approving an application for residential subdivision made by the applicants — matter settled through mediation — whether letter from applicant's solicitor apparently withdrawing from the settlement and marked “without prejudice” was inadmissible under s57 Evidence Act 2006 (privilege for settlement negotiations or mediation) — whether the letter could be admitted by affidavit — effect of costs claimed not being itemised.
The issues were: whether P was entitled to present the without prejudice letter as affidavit evidence; whether it was inadmissible under s57 Evidence Act 2006 (privilege for settlement negotiations or mediation); and whether the letter in fact was an attempt to resile from the settlement leading P to incur further expenses.
Held: As a matter of common practice, costs applications were resolved on the basis of the papers before the Court and the evidence heard by the Court (if the matter had proceeded to a hearing). If parties wished to adduce additional evidence, that must be done by an appropriate process which gave the other side an opportunity to respond to factual contentions. However, in this case there had not been any impropriety by producing the letter by affidavit. The letter was a document from one counsel to another in the course of proceedings that P's solicitor could have attached to her written submissions without the need for an affidavit.
A without prejudice letter was an important part of resolution of proceedings in the legal system. As a matter of common practice the Environment Court actively encouraged resolution of matters by of mediation and negotiation. The Court would be loath to put those practices in jeopardy by accepting such a letter in evidence if it were an attempt to resolve the proceedings.
While the Court was not strictly bound by the rules of evidence, they were not to be simply ignored and were commonly and routinely applied. The letter was prominently headed “without prejudice” and had clearly been intended as confidential, thereby satisfying the test under s57(1)(a) EA (privileged if intended to be confidential). However, the letter was not entitled to the privilege provided for in s57(1) EA because it did not satisfy the second limb, as the letter had not been an attempt at settlement pursuant to s57(1)(b) EA. The dispute had already been settled by mediation and the Court had been advised of that. The letter appeared to be an attempt to resile from the settlement that had been effected, especially when combined with evidence that W had been continuing with preparation of evidence for a hearing. It had been inevitable that P would treat the letter as an attempt to resile from the agreed settlement and to take appropriate steps, thereby incurring further costs.
P's claim for costs had not been itemised. No accounts had been provided detailing hours spent or disbursements. As a matter of practice supporting accounts should be filed as part of costs applications, although it was not the Court's function to act as a costs revision committee.
P was entitled to an award of costs for the additional work occasioned by W's apparent attempt to resile from the settled agreement. P was directed to file copies of accounts within five working days.
On 11 April 2011 the Court issued a consent order in these proceedings.
The consent order reflected the terms of a consent memorandum filed by the parties dated 2 March 2011. The consent memorandum recorded that there was an unresolved issue as to costs between the Applicants and the Appellants and sought that costs between those parties be reserved, with a suggested timetable for the filing of submissions as to costs. This costs application is the outcome.
On 5 August 2010, Wayne and Nicola Picard (the Appellants) filed an appeal against a decision of Tasman District Council (the Council) approving an application for residential subdivision made by John and Ria Wilms (the Applicants). The application was to subdivide two existing titles to create six allotments, one of which was an access lot and one of which was to be amalgamated with an adjoining parcel of land, so that the proposal was effectively for four allotments. Consent was granted subject to a number of conditions. The Appellants appealed against the grant of consent in toto.
The appeal was subject to the Court's usual case management processes. There was a call over of the appeal in Nelson on 28 September 2010 and at that call over directions were made, including (inter alia) an evidence exchange timetable. These directions were confirmed in a written minute which issued on 1 October 2010.
At the request of the parties a telephone conference was held on'28 October 2010. At the telephone conference the parties advised that they were to hold a private mediation during the week of 8 November 2010 and an amended evidence exchange timetable was issued to reflect that. Significantly, the amended evidence exchange timetable was preceded by the qualification that it was only applicable if the matter was not settled by mediation.
On 13 December 2010 Counsel for the Applicants (Mr N McFadden) wrote to the Court in these terms:
We would like to advise that this appeal has been the subject of informal mediation. The mediation has been successful and we are in the course ofpreparing a Consent Memorandum for circulation.
Nothing further was heard by the Court until 21 January 2011 when it received a memorandum from Mr McFadden seeking a variation of the evidence exchange timetable due to the unavailability of one of the Applicants' witnesses.
The Appellants responded to Mr McFadden's memorandum by way of a memorandum from their Counsel (Ms C Owen), seeking (inter alia) an urgent telephone conference. This memorandum was accompanied by an affidavit of Ms A A Guerin (Ms Owen's personal assistant) incorporating a series of documents which established an understanding on the part of the Appellants that the appeal had in fact been settled. In summary, the Appellants sought cancellation of the evidence exchange timetable, lodgement of a consent memorandum and draft consent order and reservation of indemnity costs.
On 1 February 2011 a further telephone conference was held by the Court. At that conference, Counsel for the Applicants (Ms V Chisnall appearing on behalf of Mr McFadden) advised that … matters are back on track. The Court was advised that a draft consent memorandum had been prepared. No further directions were made by the Court but the appeal was included in the list for call over at the next session of the Court in Nelson.
Eventually, the consent memorandum dated 2 March 2011 was received by jh&;, Court and a consent order duly issued. The subdivision consent agreed to in the consent memorandum was different to that granted by the Counsel. A significant ference was that the consent order granted approval to only three amendments as opposed to the four allotments approved by the Council.
The Appellants now seek costs against the Applicants pursuant to the reservation of costs contained in the consent memorandum and order. The costs application is a limited and specific one. Costs are sought for the period from 18 January 2011 when the Appellants contend that the Applicants attempted, to resile from a settlement agreement reached at mediation, up to 1 February 2011 when the Appellants say Counsel for the Applicants confirmed that the matter had in fact been settled. Costs are also sought on preparation of the submissions seeking costs.
It is apparent on considering the submissions on behalf of the Applicants and Appellants that determination of this costs application comes down to resolution of two key questions:
• Were the Appellants entitled to put before the Court a without prejudice letter, dated 18 January 2011 (the Letter) which the Appellants say indicated an intention on the part of the Applicants to resile from the settlement which the parties had agreed to at mediation; and
• Did the Letter in fact seek to resile from the mediated settlement, thereby leading to the Appellants incurring further expenses.
If the answer to both of those questions is yes, then I consider it is appropriate that there be an award of costs against the Applicant.
The Letter came into the Court as an exhibit to the affidavit of Ms Guerin, in support of the costs application. In responding to that application, Mr McFadden referred, to an observation of the Court in . 1 that it is generally not appropriate to lodge affidavit evidence in relation to costs...
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