Te Whare O Te Kaitiaki Ngahere Incorporated Society v Animal Control Products Limited [2014] NZHC 2690 (31 October 2014)

Last Updated: 5 November 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001548 [2014] NZHC 2690

BETWEEN	TE WHARE O TE KAITIAKI NGAHERE INCORPORATED SOCIETY Appellant
AND	ANIMAL CONTROL PRODUCTS LIMITED Respondent

CIV-2013-409-001554

BETWEEN TE WHARE O TE KAITIAKI

NGAHERE INCORPORATED SOCIETY Appellant

AND WEST COAST REGIONAL COUNCIL First Respondent

AND TBFREE NEW ZEALAND LIMITED Second Respondent

AND EPRO LIMITED Third Respondent

AND DIRECTOR-GENERAL OF CONSERVATION

Fourth Respondent

AND ROGER LORIGAN Fifth Respondent

AND KANE STAFFORD Sixth Respondent

CIV-2014-409-000222

BETWEEN TE WHARE O TE KAITIAKI

NGAHERE INCORPORATED SOCIETY Appellant

AND WEST COAST REGIONAL COUNCIL First Respondent

TE WHARE O TE KAITIAKI NGAHERE INCORPORATED SOCIETY v ANIMAL CONTROL PRODUCTS LIMITED [2014] NZHC 2690 [31 October 2014]

AND	ANIMAL HEALTH BOARD INCORPORATED Second Respondent
AND	EPRO LIMITED Third Respondent
AND	DIRECTOR-GENERAL OF CONSERVATION Fourth Respondent
AND	ROGER LORIGAN Fifth Respondent
AND	KANE STAFFORD Sixth Respondent
AND	CHRISTOPHER COWAN Seventh Respondent

Hearing:	(On the papers)
Appearances:	DTD Dick, P Paterson and F Fehling appearing in person on behalf of appellant B G Williams and HSJ Pedler for TBFree NZ and Director General of Conservation and Animal Control Products Limited N Laws for West Coast Regional Council, EPRO Limited, K Stafford and R Lorigan
Judgment:	31 October 2014

_{JUDGMENT OF DUNNINGHAM J}

Introduction

[1] Te Whare O Te Kaitiaki Ngahere Incorporated Society (Te Whare) applies for leave to appeal to the Court of Appeal against my decision of 13 August 2014 dismissing its appeals in these proceedings.

[2] The 13 August decision relates to appeals against:

(a) a decision by Judge Newhook refusing to state a case for the High Court on five legal issues as framed by Te Whare pursuant to s 287 of the Resource Management Act 1991.¹ I describe that as the Case Stated Appeal (CIV-2013-409-1554);

(b) a decision by Judge Kirkpatrick requiring Te Whare to pay security for costs in the total sum of $25,000. ² I refer to this as the Security for Costs Appeal (CIV-2013-409-222); and

(c) a decision by Judge Borthwick requiring Te Whare to pay $10,000 in costs to Animal Control Products (ACP), following Te Whare’s application against ACP being struck out.³ I refer to that as the Costs Decision Appeal (CIV-2013-409-1548).

[3] The present application for leave to appeal is described as being in respect of CIV-2013-409-1554 and CIV-2013-409-1548, that is, the Case Stated Appeal and the Costs Decision Appeal. However it appears from the application that Te Whare does not wish to pursue the Case Stated Appeal, acknowledging that the questions of law will be clarified in the substantive hearing. Instead Te Whare’s real concern is about the requirement to pay security for costs of $25,000, and costs to Animal Control Products of $10,000.

[4] Having regard to the substance of the application for leave to appeal, therefore, I am satisfied Te Whare is seeking leave to appeal the Costs Decision appeal and the Security for Costs appeal, and I proceed on that basis.

Background

[5] The substantive litigation in which these appeals arose involves some

438 applications for declarations against persons and organisations directly or indirectly involved with the distribution and use of 1080 poison. The appellant has

¹ Te Whare O Te Kaitiaki Ngahere Inc v Animal Health Board Incorporated and Ors

_{[2013] NZEnvC 210.}

² _{Te Whare O Te Kaitiaki Ngahere Incorporated v TBFree NZ and Ors [2014] NZEnvC 41.}

³ Re Te Whare O Te Kaitiaki Ngahere Incorporated [2013] NZEnvC 136.

amassed 23 affidavits, with accompanying exhibits, totalling nearly 1500 pages, and including several hours of video footage, to support its applications.

[6] Te Whare considers that the issues raised in the affidavits concern “the health and safety of the public and the adverse effects on the environment”.⁴ I proceed on the basis that that is the case.

The legal test for a second appeal

[7] As the Environment Court proceedings that led to this application were filed in 2012, s 308 of the Resource Management Act 1991 must be applied as it was before 1 July 2013. Section 308 of the RMA applies s 144 of the Summary Proceedings Act 1957 which contains the relevant test for leave to appeal, being whether:

In the opinion of the Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[8] In a minute issued to the parties when this application was received, I referred the parties to Faloon v Palmerston North Airport Ltd,⁵ because the issues raised by Te Whare’s application appeared similar to those before the Court in Faloon.

[9] In summary, Faloon observed that the relevant considerations for determining whether such leave should be granted in the RMA context are as follows:

(a) the applicant must show good cause why leave should be granted; (b) the application must raise a seriously arguable question of law;

(c) if the Court has difficulty in identifying a clear and relevant question

_{of law, leave to appeal should be declined;}

⁴ _{See para 2 of Notice in Support by appellant for leave to appeal to the Court of Appeal.}

⁵ Faloon v Palmerston North Airport Ltd [2014] NZHC 3325.

(d) not every alleged error of law is of such importance as to justify further pursuit of litigation which has already been considered and ruled upon by the Court;

(e) it is not sufficient that issues as a whole are of general public importance or interest. It is the question identified as the matter for appeal which must be a matter of general or public interest;

(f) questions or issues of law which are fact specific or limited to the particular facts and findings of the case at hand, are not generally matters of general and public importance.

Grounds of appeal

[10] Te Whare applies for leave to appeal the following four questions of law:

(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 entering the standard hearing process under RMA provisions as default, when no proof of a “clearly untenable” case was provided?

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

(d) Does the public interest in upholding the Resource Management Act’s safeguard (appeal provisions S.299, enforcement order SS.314(e), 316 etc.) against misuse of ecotoxic poison outweigh the pecuniary security-of-costs interests of government entities who are the ecotoxic poison distributions, manufacturers and importers (the defendants)?

[11] The Court has received notices of opposition along with supporting submissions from all respondents.

[12] I do not intend to detail each submission. In summary, leave is opposed on the grounds that:

(a) The proceedings do not raise any relevant question of law let alone one of general or public importance.

(b) There is no other reason any question of law from the proceedings

ought to be submitted for the Court of Appeal’s consideration.

(c) The appeals to this Court were appeals from the exercise of discretions by the Environment Court.

(d) The Environment Court’s exercise of discretions involve matters peculiar to the appellant’s proceedings in the Environment Court.

(e) In any event, the application is out of time and the appellant has not given any reasons why leave should be granted to file the application out of time.

[13] In my minute dated 3 October 2014 I signalled I would deal with the application on the papers unless a compelling reason was raised for hearing from the parties in person. No party has sought such a hearing.

Application out of time

[14] The decision appealed from issued on 13 August 2014. Te Whare states it received the decision on or around 21 August 2014. The application for leave to appeal was received by the High Court on 26 September 2014. That is outside the

20 working day timeframe provided for in r 20.22 of the High Court Rules.

[15] While this Court has the power to grant an extension of time, no such application has been made, and no reasons have been given for the application for leave to appeal being made out of time.

[16] While that could be the end of the matter, it would be undesirable for Te Whare to think its application was defeated on a technicality. The reality is that, even if Te Whare’s application was made in a timely way, in my view it fails in every respect to meet the test for the grant of leave to appeal.

[17] Dealing with each purported question of law, I comment as follows.

First question of law on appeal

[18] This is not a question (let alone a question of law) that arises in these proceedings.⁶ There has been no application made to strike out the applications of the respondents (defendants). There has also been no finding that any of the applications brought by the respondents were frivolous, vexatious or an abuse of the Court process. This “question of law” therefore does not arise from any aspect of the judgments in the Court below. It is a hypothetical question, involving application of

the established law, to hypothetical facts. It does not qualify as a question of law, arising in these proceedings, let alone one of general or public importance, or which would otherwise justify a further right of appeal.

Second question of law on appeal

[19] The second question is difficult to comprehend, but appears to erroneously apply the test for an application to strike out a proceeding to an application for security for costs. It is clear that the decision on security for costs was not based on an assumption that the appellant’s case was “clearly untenable”, so no such error of law arose. Again, this question does not point to an arguable error of law, let alone one that is of general or public importance, or which would otherwise justify a

_{further right of appeal.}

⁶ As explained in [4] above, I am assuming this question relates to the Security for Costs Appeal

CIV-2014-409-222, as well as the Costs Decision Appeal.

Third question of law on appeal

[20] The third question of law also appears to embark on a hypothetical exercise. There has been no finding that any action by the respondents has been frivolous, vexatious or an abuse of Court process, nor has there been any finding or acceptance that there has been a departure from an objective and reasonable approach to the application of s 285 of the RMA. The award of costs involves the exercise of this Court’s discretion, and the principles applying to the award of costs in the Environment Court are settled and well understood. Te Whare does not identify any departure from these principles, let alone one that brings into play a question of law for determination.

The fourth question of law on appeal

The final question of law raises the issue of how the “misuse of ecotoxic poison” should be weighed against the “pecuniary security of costs interest of government entities”. Again this question assumes factual findings that have not been made. More importantly though, the question of the public interest in the issues the appellant wished to raise was clearly considered and weighed against the interests of the other parties to the litigation when deciding the issue of costs. The question really seeks to revisit the exercise of the Environment Court’s discretion, having had regard to the relevant considerations when awarding costs and/or requiring payment of security for costs, and does not raise a question of law which meets the threshold for the grant of leave.

Conclusion

[21] In summary, the purported questions of law either invite the Court to embark on making a decision that was not sought in the proceedings appealed from, or seek to revisit the findings of the lower Court which were made after having regard to well established legal principles.

[22] While the appellants argue that “the issues raised in the affidavits concern the health and safety of the public and the adverse effects of the environment”, that is to confuse the subject matter of the proceeding and the questions of fact which must be

decided in them, with the questions of law relied on for the application for leave to appeal.

[23] Furthermore, the questions are framed in convoluted form. Both the Court and the respondents have had difficulty in identifying the question being asked, let alone in identifying a clear and relevant question of law. That, too, points against leave being granted.

[24] The real substance of the appellant’s case is grounded in its facts. The application for leave to appeal on the four stated questions of law is misconceived. As explained above, none of the questions pose reasons which, by reason of their general or public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision.

[25] The application for leave to appeal is dismissed.

Solicitors:

Chapman Tripp, Christchurch

Ross Dowling Marquet Griffin, Dunedin