GREENPEACE OF NEW ZEALAND CORPORATED v MINISTER OF CONSERVATION [2017] NZHC 3114

GREENPEACE OF NEW ZEALAND CORPORATED v MINISTER OF CONSERVATION [2017] NZHC 3114[13 December 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-1010[2017] NZHC 3114UNDER the Declaratory Judgments Act 1908BETWEEN GREENPEACE OF NEW ZEALANDCORPORATEDApplicantAND MINISTER OF CONSERVATIONFirst RespondentAND SCHLUMBERGER NEW ZEALANDLIMITEDSecond RespondentOn the papers:Counsel: D Salmon and D Bullock for ApplicantR Roff and E Jamieson for First RespondentJ Knight and B Scott for Second RespondentJudgment: 13 December 2017JUDGMENT OF CLARK J[1] This is an application for leave to appeal my refusal to set down for urgenthearing, an application for a declaration.[2] The proceeding seeks declarations as to whether the effects of the secondrespondent's survey described in the report prepared for the second respondent, andprovided by it to the first respondent, titled The Western Platform Multi Client 3DSeismic Survey Marine Mammal Impact Assessment and dated 23 November 2017,mean that the survey activities described in that report require a permit under s 41(1)of the Marine Mammals Protection Act 1978 (and as a corollary, would be unlawfulwithout a permit).[3] When the matter first came before me as Duty Judge on 8 December 2017, inthe misapprehension I was dealing with an application for interim orders, I indicateda half-day hearing was available on 14 December 2017 and directed a telephoneconference on 11 December 2017 for confirmation and timetabling.[4] In memoranda filed for the telephone conference the respondents brought tomy attention the applicant makes no application for interim orders and they stronglyresisted a hearing of the substantive proceeding on 14 December 2017. Instead, theywould co-operate towards the first available hearing after 12 February 2018.[5] I was not persuaded the plaintiff had made out a case for such urgency that thematter should be set down in the face of the respondents' claims of prejudice. I wasinfluenced as well by the fact that the nature of the relief the plaintiff seeks did notrequire an urgent judgment from the Court. In other words, even if the plaintiffsecured an urgent hearing, if the Judge needed to take time to consider the arguments,and did so, that delay tended to negate whatever benefits accrued from an urgenthearing.[6] I declined to set the matter down for a hearing on 14 December 2017.[7] On 13 December 2017 Greenpeace filed an application for leave to appeal that"order". The grounds of appeal are particularised mainly by reference to the reasonsfor seeking declaratory relief sought but also because:(a) The applicant has deliberately confined the proceeding to a limitedfactual basis and no further evidence from the respondents is said to benecessary to determine the questions at issue.(b) The effect of my order is that any declaratory relief will likely comeafter the survey is complete (or close to its completion) and rendernugatory the realistic possibility of effective prospective declaratoryrelief in the context of the second respondent's survey.(c) The order is inconsistent with the purpose of the Declaratory JudgmentsAct 1907 jurisdiction which is designed to provide a speedy andinexpensive method of obtaining a judicial interpretation where thematter in dispute cannot conveniently be brought before the Court in itsordinary jurisdiction and where a declaratory judgment would beappropriate relief. Greenpeace cites New Zealand Insurance Co Ltd vPrudential Assurance Co Ltd.1[8] Greenpeace acknowledges the relief sought is not to stop the secondrespondent's seismic survey but the purpose of the relief, being to obtain judicialdetermination of the statutory requirements of the Marine Mammals Protection Act1978 applicable to the survey, determines the legality of the survey.[9] I accept the proceeding raises issues of public importance and interest. But Iam not satisfied the applicant has identified an arguable error of fact or law in what isessentially a timetabling or scheduling decision.[10] The Minister does not accept that the proceeding can be heard in half a day andthat the issue can be determined solely on the basis of an interpretation of the MMIA.Both respondents wish to have the opportunity of adducing evidence to support theirintended denial of the effects of the survey on marine mammals pleaded in thestatement of claim. It is said there is likely to be relevant evidence additional to theMMIA that will be of assistance to the Court and there may be disputed facts andpossibly other parties likely to be affected by the outcome of the proceeding. At thevery least, counsel for the Minister submits expert evidence will be required to assistthe Court in understanding this complex technical report. Both respondents submitthe interests of justice are not served by granting leave to appeal.[11] Section 56(3) of the Senior Courts Act 2016 is not intended to conferjurisdiction to appeal decisions of the kind in question, a scheduling decision which Ido not accept has the effect of determining or affecting rights or liabilities at issue. To1 New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) at [85].the extent rights or liabilities may be affected by the scheduling decision I am inclinedto the view they are the rights of the respondents to have a proper opportunity toprepare their opposition to the application for declaratory relief.[12] The application for leave to appeal is declined._____________________________Karen Clark JSolicitors:LeeSalmonLong, Auckland for Plaintiff