Te Whare O Te Kaitiaka Ngahere Incorporated Society v West Coast Regional Council

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 07 August 2015
• Neutral Citation: [2015] NZCA 356
• Docket Number: CA39/2015
• Court: Court of Appeal
• Date: 07 August 2015

BETWEEN

Te Whare O Te Kaitiaka Ngahere Incorporated Society

Applicant

and

West Coast Regional Council

First Respondent

and

Tbfree New Zealand Limited

Second Respondent

and

Director-General of Conservation

Third Respondent

and

Animal Control Products Limited

Fourth Respondent

[2015] NZCA 356

Court:

Ellen France P, Randerson and White JJ

CA39/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

Application for an extension of time for leave to appeal and for special leave to appeal under s308 Resource Management Act 1991(RMA) (Appeals to the Court of Appeal) — applicant was an incorporated society that was opposed to the use of 1080 poison — it sought 761 declarations from the Environment Court (EnvC) relating to alleged breaches of resource consents — declarations against one of the respondents were struck out by consent, resulting in a costs decision of $10,000 against the applicant — the EnvC also made an order for security for costs for $25,000 — EnvC had noted that the applicant had not restricted the scope of the proceedings by using exemplar declarations — applicant submitted that the costs and security for costs decisions effectively prevented it from presenting its case on the merits — whether leave to appeal should be granted on a question as to whether publicly financed entities could delay and prevent a hearing which was of public interest by requesting security for costs and costs.

Counsel:

P A Paterson for Applicant with E G Leaf as McKenzie Friend

J A Knight and H S Pedler for Respondents

• A The application for an extension of time for leave to appeal is granted.

• B The application for special leave to appeal under's 308 of the Resource Management Act 2011 is dismissed.

• C The applicant must pay costs to the respondents for a standard application Band A with usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Randerson J)

Introduction

1 The applicant is an incorporated society opposed to the use of 1080 poison for pest control. It brought proceedings in the Environment Court in July 2012 for declarations under the Resource Management Act 1991 (the RMA) relating to alleged breach of the conditions of 12 resource consents granted by the first respondent to the second respondent. 1 The present respondents and other parties were granted party status under's 274 of the RMA.

2 In four of the declarations, the applicant pleaded that the fourth respondent (ACP) was a party to the alleged contraventions of the conditions of the resource consents. In April 2013 the applicant consented to an order striking out the declarations affecting ACP. 2 By a judgment issued on 18 June 2013 Environment Judge Borthwick ordered the applicant to pay increased costs of $10,000 to ACP (the costs decision). 3

3 On 3 March 2014, Environment Judge Kirkpatrick made an order that the applicant provide security for costs in the total sum of $25,000 for five named parties including the first, second and third respondents (the security decision). 4

4 The applicant appealed to the High Court against the costs decision and the security decision. 5 By a judgment of 13 August 2014, Dunningham J dismissed both

appeals. 6 The applicant then sought leave to appeal to this Court on a question of law under's 308 of the RMA. Dunningham J dismissed that application by a judgment delivered on 31 October 2014. 7

5 The applicant has now applied to this Court for special leave to appeal. The last date for doing so was 28 November 2014. On that date, the applicant attempted to file its application by email but was advised it would have to file the application in hard copy form. That was not achieved until 4 December 2014. The application was not served on the respondents until 2 February 2015.

6 Against that background, there are two applications for our consideration:

• (a) An application for special leave to appeal to this Court; and

• (b) An application for an extension of time to file the application for special leave.

7 Mr Knight acknowledged that the respondents had not been prejudiced by the delay. This judgment will focus primarily on the application for special leave. We record that Mr Paterson was permitted to represent the applicant as a layperson along with a McKenzie friend.

The Appeal to the High Court

8 Dunningham J noted that the proceedings in the Environment Court sought 761 declarations against 39 different persons and organisations directly or indirectly involved with the distribution and use of 1080. The application was supported by 23 affidavits with exhibits totalling nearly 1,500 pages. In due course, 323 of the declarations were either struck out or withdrawn but some 438 claimed declarations remained on foot. Further applications for strike out remain extant, the Environment Court determining that the five applications for security for costs be determined first. 8

The security decision

9 The Judge noted that the security decision was of greatest concern to the applicant. She recorded the questions of law raised by the applicant: 9

Main Question of Law on Appeal to High Court:

Does the public interest in upholding the RMA's safeguards (appeal provisions S.299, enforcement order SS.314(e), 316, etc.) against misuse of extremely hazardous ecotoxic poison outweigh the pecuniary security-of-costs interests of government-dependent/controlled poisoning operators (the defendants)?

Sub Questions of Law on Appeal to High Court:

• 1. Should the provision of the RMA (appeal provisions S299, enforcement order SS.314(e), 316 etc.) be effectively invalidated by granting security-for-costs on reliance on wrong facts and by undermining current Court-of-Appeal case laws?

• 2. Should the lower Environment Court appealed against effectively have been allowed to decide an appeal to the High Court contrary to appeal provision per S.299?

10 A further point advanced was whether the applicant had been denied access to justice when its case was not clearly untenable.

11 Dunningham J observed that an appeal to the High Court under's 299 of the RMA is confined to questions of law and is not a general right of appeal. Moreover, it was an appeal against the exercise of a discretion and could only succeed on one or more of the grounds identified by the Supreme Court in Kacem v Bashir. 10

12 The Judge found that:

• (a) It was not in dispute that the threshold test was met namely, there must be reason to believe that the applicant would be unable to pay the costs of the opposing parties if the application were unsuccessful.

• (b) Judge Kirkpatrick had fully and carefully outlined the legal principles relating to applications for security for costs.

• (c) He had recognised public interest factors relevant to the exercise of the discretion and had correctly found it was not necessary for the parties seeking security for costs to show that the applicant's case was clearly untenable.

• (d) He had also identified that it was necessary to take into account as a relevant consideration whether the ordering of security would force an impecunious applicant to discontinue the case.

• (e) While the Judge had recognised that the applicant was acting in good faith there were legitimate concerns about the manner in which the applicant had presented its case. In particular, the applicant had resisted suggestions from the Court that the scope of the proceedings could be limited by filing a selection of “exemplar” declarations in the first instance which would have limited the risk of a costs award and had the effect of achieving a more favourable outcome on the issue of security for costs.

13 In these circumstances, Dunningham J considered that the applicant was the architect of its own fate.

The costs decision

14 The question of law the applicant sought to raise in the High Court on the costs appeal was:

Does S.285 RMA (awarding of costs as Environment Court considers reasonable) exclude objective reasonability, including the provisions of S.279 (strike-out of costs application if Judge considers it frivolous or vexatious or otherwise an abuse of process)?

15 Dunningham J found that the award of costs made by Judge Borthwick involved the exercise of a discretion. The Environment Court had correctly identified the relevant considerations including the principle that there was no immunity from costs for public interests groups. 11

16 Dunningham J also noted that Mr Paterson had specifically conceded in the Environment Court that the proceedings in relation to ACP disclosed no reasonable case; that three of the declarations were outside the jurisdiction of the Environment Court; and that there was no evidential basis for the fourth declaration involving ACP.

17 Finally, the Judge took into account the following additional factors:

The High Court decision refusing leave to appeal

• (a) Although the Environment Court had acknowledged the general public interest in a case designed to ensure that resource consent conditions were complied with, it had inevitably concluded that this factor did not carry weight in circumstances where the applicant had acknowledged it had no reasonable cause of action against ACP.

• (b) While the case was withdrawn against ACP, the path to that point had not been straightforward and ACP had incurred considerable costs to that stage.

• (c) There was no identified error of law.

• (d) There was sufficient evidence to justify an award higher than usual costs amounting to approximately 60 per cent of ACP's actual costs.

18 The applicant sought leave to appeal on four questions of law: 12

• (a) Should the defendants' strike out case/application and/or security-for-costs case/application have been struck out per S.279(4)(a),(c) on reason that proof of their frivolous, vexatious and abuse-of-process character had been provided?

• (b) Does the Supreme-Court case-law example ( [2012] NZSC 49) require...