Te Whare O Te Kaitiaki Ngahere Incorporated v West Coast Regional Council

• Jurisdiction: New Zealand
• Judge: Heath J
• Judgment Date: 09 November 2015
• Neutral Citation: [2015] NZHC 2769
• Docket Number: CIV 2015-409-101
• Court: High Court
• Date: 09 November 2015

UNDER the Resource Management Act 1991

BETWEEN

Te Whare O Te Kaitiaki Ngahere Incorporated

Appellant

and

West Coast Regional Council

First Respondent

and

Tbfree NZ Ltd

Second Respondent

and

Director-General of Conservation

Third Respondent

and

Epro Limited

Fourth Respondent

and

Christopher Cowan

Third Respondent

[2015] NZHC 2769

CIV 2015-409-101

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

Appeal against an Environment Court (EnvC) order which had the effect of striking out declaration proceedings the appellant had issued — proceedings had been stayed pending payment of security for costs — High Court had dismissed an appeal against the security order and refused leave to appeal to the Court of Appeal (CA) — on its own motion and without giving notice to the parties, the EnvC struck out the proceedings as the Judge was under the impression that no steps had been taken to seek special leave to appeal to the CA — the Judge said that allowing the matter to remain on the books of in the absence of payment of security for costs would be an abuse of the Court's process — the appellant had tried to file documents in the CA but they had been rejected — they were subsequently accepted — whether the EnvC Judge erred in law, by way of a breach of natural justice, by failing to notify the parties of his intention to strike out the proceeding, and by failing to hear from them before determining whether to do so.

Counsel:

A S P Tobeck for Appellant

A L Logan for First to Third Respondents

No appearance by or on behalf of Fourth and Fifth Respondents

JUDGMENT OF Heath J

The appeal

1 Te Whare o Te Kaitiaki Ngahere Inc (Te Whare) appeals against an order made by the Environment Court on 21 January 2015, which had the effect of striking out proceedings (the declaration proceedings) issued by it to confirm the alleged contravention of various resource consents granted by West Coast Regional Council (the Council). 1

2 The appeal is opposed by the Council, TBFree NZ Ltd (TBFree) and the Director-General of Conservation. Mr Logan appeared on behalf of all three of those respondents. The remaining two respondents, Epro Ltd and Mr Cowan, abided the decision of the Court. 2

3 The primary ground of appeal is that Judge Newhook (the Principal Environment Judge) erred in law by failing to notify the parties of his intention to strike out the proceeding, and to hear from them before determining whether to do so. The question is whether the process by which the Judge reached his decision breached the principles of natural justice. 3

The proceedings

4 Te Whare seeks declarations from the Environment Court that conditions of various resource consents granted in favour of TBFree (then the Animal Health Board) by the Council have been contravened. There is considerable local public interest in the declaration proceedings, as they concern consents granted for the discharge of sodium monofluoroacetate, commonly known as “1080” poison.

5 The Council issued the relevant consents. TBFree undertakes pest control activities, based on those consents. Much of the area in which the 1080 bait laying activities have occurred is on land under the control of the Department of Conservation. Epro Ltd undertook aerial bait dropping for TBFree. Mr Cowan was a director of a company that carried out operational aspects of 1080 bait laying.

6 In seeking declaratory relief, Te Whare made some 57 allegations of breach in respect of the 12 resource consents. The allegations were directed to 39 named respondents, including the consent holder. Initially, some 761 declarations were sought. As at 3 March 2014, 323 of those had been withdrawn or struck out. As I understand the position, presently 438 separate declarations are sought. 4

7 The declaration proceedings have fallen into a procedural quagmire. In order to understand the circumstances in which the strike out order was made, it is necessary to set out the background in some detail.

The applications for security for costs

8 The five respondents applied to strike out the declaration proceedings. Contemporaneously, they sought orders for security for costs. The Environment Court decided on 10 October 2013, contrary to its usual practice, to hear and determine the applications for security before the strike out applications. That approach was confirmed by Whata J, in this Court, on 28 November 2013.

9 The applications for costs were considered on the papers. They were determined by Judge Kirkpatrick on 3 March 2014. 5 The Judge made an order in the sum of $25,000, reflecting an amount of $5000 per claimant. He stated that this figure was “not based on an estimate of each party's likely actual costs or the amount that they might recover as party and party costs under section 285 of the [Resource Management] Act …” but had been “set at a level which is appropriate as between all parties, including Te Whare, in the interests of justice and taking into account all of the factors which bear on the discretion to be exercised in relation to security for costs”. 6

10 The declaration proceedings were stayed until such time as security was given. Judge Kirkpatrick made it clear that that order was not intended to affect any existing appeals, or the right of any other party to seek further orders. 7

11 On 13 August 2014, Dunningham J dismissed Te Whare's appeal to this Court against the order for security for costs. 8 Her Honour traversed relevant parts of Judge Kirkpatrick's decision but ultimately took the view that he was right to make the order. Dunningham J concluded by saying:

[58] While the Courts afford considerable latitude to parties which are not represented by counsel, the convoluted expression of the various documents filed in support of the appeal reflects the concerns expressed by the four different Environment Court Judges who have been involved in these proceedings to date. Furthermore, Te Whare has failed to heed the warnings, or take up the suggestions, that have been made to it by the Court. For example, it has been suggested that Te Whare run a selection of “exemplar” declarations in the first instance, which would have limited its risk of a costs award and have led to a more favourable outcome on the issue of security for costs, but it has steadfastly resisted such guidance. If Te Whare is unable to progress its application, it is largely the architect of its own fate.

12 Te Whare sought leave to appeal to the Court of Appeal against Dunningham J's decision. That application was dealt with by Dunningham J, on the papers. Her judgment was delivered on 31 October 2014. She considered that no question of law arose to justify an appeal to the Court of Appeal. The application for leave was dismissed. 9

13 On 21 January 2015, Principal Judge made an order striking out Te Whare's declaration proceedings. 10 The decision was made of the Court's own motion and without giving notice to the parties. It is clear from the Judge's decision that he was under the impression that no steps had been taken by Te Whare to seek special leave to appeal to the Court of Appeal against Dunningham J's judgment of 13 August 2014. Relevantly, Judge Newhook said:

• [3] Applications were filed to strike out the declaratory applications, along with five applications for security for costs.

• [4] In the ordinary course the applications for security for costs would most likely have been considered after the strike out applications. In the present case, there was a plethora of claims, which had spawned a plethora of strike out applications. All parties were likely to incur very considerable costs in these proceedings, and for this reason it was decided that the

applications of security for costs would be determined before the strike out applications.

…

9 I have investigated whether Te Whare has taken any further steps in relation to the 2 High Court decisions. The Court of Appeal (Civil) Rules 2005, at Rule 14(2), provides that a party in the position of Te Whare had 20 working days to seek leave in the Court of Appeal. The registry of the Court of Appeal has confirmed that no such proceeding has been filed. The last available date would have been 28 November, so I hold that there is no bar to this Court considering the strike out applications.

10 In light of the unsuccessful proceedings in the High Court, and the fact that to date the ordered security for costs is unpaid, the Court considers it appropriate to consider whether this matter should now be struck out.

11 Section 279(4) of the Act states that:

• “(4) An [Environment Judge] sitting alone may, at any stage of the proceedings and on such terms as the Judge thinks fit, order that the whole or any part of that person's case be struck out if the Judge considers—

  • (a) That it is frivolous or vexatious; or

  • (b) That it discloses no reasonable or relevant case in respect of the proceedings; or

  • (c) That it would otherwise be an abuse of the process of the [Environment Court] to allow the case to be taken further.”

12 In Gillespie v Manawatu-Wanganui Regional Council and Tararua District Council [ [2013] NZEnvC 287] the appellant failed to provide security for costs and Judge Dwyer struck the appeal out on the following grounds:

“I determine that it would be an abuse of the process of the Environment Court to allow an appellant to maintain an appeal when that appellant has failed to provide security for costs. Further, I consider that there must be an inherent jurisdiction to strike out an appeal when such a requirement has not been met.”

13 In this case I consider that to allow the matter to remain on the books of this Court in the absence of payment of security for costs, (particularly a significant time after the conclusion of...