COROMANDEL MARINE FARMERS ASSOCIATION (INC) V THE WAIKATO REGIONAL COUNCIL HC AK CIV-2004-485-2004

COROMANDEL MARINE FARMERS ASSOCIATION (INC) V THE WAIKATO REGIONAL COUNCIL HC AK CIV-2004-485-2004 5 October 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2004-485-2004BETWEEN COROMANDEL MARINE FARMERS ASSOCIATION (INC) Appellant AND THE WAIKATO REGIONAL COUNCIL Respondent Counsel: J K MacRae & D R Clay for Appellant K G Parker for Respondent P T Cavanagh QC for I & M James R B Brabant for Auckland Yacht & Boating Assoc (Inc) Judgment: 5 October 2005ORAL JUDGMENT OF RANDERSON JSolicitors: Phillips Fox, PO Box 160, Auckland Tompkins Wake, PO Box 258, Hamilton Purnell Jenkson Roscoe, PO Box 31, Thames Counsel: R Brabant, PO Box 106215, Auckland P Cavanagh QC, PO Box 4338, Shortland Street, AucklandBackground[1] I have heard the parties this morning as to whether this appeal can or should be resumed. I heard the appeal on 2 May 2005 and issued a minute on that date. I recorded the agreement the parties had reached in paragraph [8] of the decision. The agreement I recorded was reached after the issues had been debated during the course of the morning and after the luncheon adjournment when the parties had had the opportunity of discussing the matter and reaching a conclusion. [2] Their agreement followed the suggestion made by me that the appeal against the order made by Judge Newhook granting a rehearing of the Auckland Yacht and Boating Association Inc (AYBA) reference had little or no merit and that it was likely that any appeal on that ground would be dismissed. The concern of both Judge Newhook and myself was that the James had not been heard in relation to the AYBA reference. As well, there was still an outstanding reference by the James themselves. [3] The agreement envisaged there would be a rehearing of the AYBA reference with all relevant parties heard. That would be conducted along with the hearing of the James' reference and all parties would have party rights in both proceedings. One paragraph of the agreement read as follows:The decision on the reference to be reheard shall follow on from the Environment Court's substantive decision in the James' reference.[4] After recording the agreement reached by the parties I noted that the Environment Court should have the opportunity to consider the matters the parties had agreed and to make appropriate directions in the light of any further submissions that might be made to the Environment Court. I recorded further that the solution agreed by counsel had the general endorsement of this Court as an appropriate means of ensuring that all affected parties had the proper opportunity to be heard. [5] I adjourned the appeal until 11 July 2005. In doing so I stated as follows:Assuming there are no further issues outstanding, the appeal can then be formally dismissed. That may be done on the papers if counsel are agreed.[6] At that point I regarded the appeal as having been resolved by agreement of the parties but subject to the Environment Court giving appropriate directions. I did not envisage that this was a conditional settlement. Rather, it was an agreement between the parties which would require the direction of the Environment Court thereafter. I adjourned the appeal solely so that any other issues or matters of detail could be raised before me. I certainly did not envisage, given the view I had formed about the merits of the appeal, that the appeal could or would be resumed on the merits. [7] Thereafter, I dealt with the issue of costs in my judgment given on 20 June 2005. [8] On 22 July 2005 Judge Newhook heard the parties on the procedural issue as to how the two references should be resolved. He issued a written decision on 29 July in which he determined that the fair and efficient means of tackling the hearings was to hear the AYBA reference first and then subsequently if the parties wished, to hear the James' reference. He added he considered that to be the fair, appropriate and efficient use of the Court's time. [9] On 1 September 2005, I issued a minute after receiving memoranda from counsel for the appellant seeking a resumption of the hearing of the appeal. I indicated in that minute that I did not consider I had jurisdiction to resume the appeal and that there was no proper basis to resume it. I indicated I would dismiss the appeal within 7 days unless any party objected to that course. The appellant has objected to that course, hence the hearing before me this morning. [10] Then on 16 September 2005 Judge Newhook issued a decision declining an application made by the Coromandel Marine Farmers Association for an adjournment or stay of the AYBA reference rehearing. That application was made on the basis that the appellant was seeking a rehearing of this appeal. Mr MacRae had alleged, on behalf of the appellant, that unless a stay or adjournment were granted, the appeal rights of the Association would be rendered nugatory. JudgeNewhook did not agree with that submission noting that if the decision at the rehearing was contrary to the Association's liking it could appeal. He observed that any further appeal could be heard alongside this current appeal if I were persuaded it was appropriate to do so. [11] Judge Newhook has since reheard the AYBA reference and issued a decision on 3 October 2005 deleting the disputed words from the respondent's coastal plan. That is a decision adverse to the appellant and Mr MacRae submits that if the hearings had proceeded in the order agreed then the appellant would not have been prejudiced as Mr MacRae submits it has.Submissions[12] Mr MacRae submits that I do have jurisdiction to resume the appeal. He submitted that the AYBA and the James had breached the terms of the settlement agreement by submitting in the Environment Court that the AYBA rehearing reference should be heard first. As a result of that breach the appellant has apparently given notice cancelling the settlement agreement. On that basis, Mr MacRae submits that the appellant is entitled to have the appeal resumed and determined on its merits. He also relies on paragraph [10] of my minute of 2 May in which I adjourned the appeal rather than dismissed it at that point. He submitted that an injustice has been caused to his client as a result of the breach and that it would be appropriate in those circumstances to permit the appellant to continue the appeal. [13] It is unnecessary for me to decide whether there is any merit in Mr MacRae's submission that the appellant has been prejudiced by the events which followed the hearing before me on 2 May or whether there has been any breach of the settlement agreement reached at that time. I am satisfied I do not have jurisdiction to resume this appeal. There was a settlement clearly reached and that settlement remained at all times subject to the possibility that the Environment Court might take a different view as to the way in which, in terms of procedure, the matters should proceed in the Environment Court. Judge Newhook determined the appropriate method of procedure after hearing the parties and has now heard and determined the AYBA reference on rehearing.[14] I reiterate that the adjournment of the appeal was simply for the purpose of tidying up any matters of detail and it was not envisaged by me that the appeal could be reopened on the merits. If it were reopened, I am satisfied the appeal had little or no merit and would almost certainly have been dismissed on the merits in any event. That conclusion followed the morning's argument on the matter which I heard on 2 May. [15] It is also relevant to point out that there are rights of appeal to this Court from the most recent decision of Judge Newhook deleting the disputed words from the respondent's plan. If the appellant is unhappy with Judge Newhook's decision and it is considered there were errors of law involved, then those appeal rights can still be pursued. [16] As to Mr MacRae's point about the purported cancellation of the settlement agreement, there are difficulties with that submission. A unilateral cancellation of an agreement will not necessarily be found to be valid and rights to relief are available. It remains a matter in the end for the Court to determine whether a settlement agreement or any other form of agreement is appropriately cancelled. In the context of litigation where parties reach a settlement it is most unlikely that a court would be willing to endorse cancellation of such an agreement as an appropriate remedy for breach. Remedies of damages or injunction would have been available to the appellant if it considered there was a breach. Not only was there no application for an injunction to restrain the Environment Court from proceeding in the way determined but there was no appeal to this Court from the decision of Judge Newhook when he made his determination of 29 July. [17] Overall I regard this matter as having been concluded on 2 May save for matters of detail and I consider there is no longer jurisdiction to resume the appeal. The time is now reached where it should be dismissed and it is dismissed. [18] I reserve the question of costs. ______________________________ A P Randerson, J Chief High Court Judge