ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED V BULLER COAL LIMITED & Anor HC CHCH CIV-2012-409-000972

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED V BULLER COAL LIMITED & Anor HC CHCH CIV-2012-409-000972 [17 July 2012]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2012-409-000972[2012] NZHC 1736BETWEEN ROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDAppellantAND BULLER COAL LIMITEDFirst RespondentAND SOLID ENERGY NEW ZEALANDLIMITEDSecond RespondentCIV-2012-409-000979AND BETWEEN WEST COAST ENT INCORPORATEDAppellantAND BULLER COAL LIMITEDFirst RespondentAND SOLID ENERGY NEW ZEALANDLIMITEDSecond RespondentHearing: 12 July 2012Appearances: P D Anderson for Royal Forest and Bird Protection Society of NZ IncJ Hodder and T Lowe for Buller Coal LimitedAppearances for other parties excusedJudgment: 17 July 2012RESERVED JUDGMENT OF HON. JUSTICE FRENCHIntroduction[1] Section 64 of the Judicature Act 1908 provides that if the circumstances of a civil proceeding pending before the High Court are exceptional, the High Court may order that the proceeding be transferred to the Court of Appeal.[2] Buller Coal Limited has applied for an order under s 64 to remove this consolidated proceeding from the High Court to the Court of Appeal.[3] All other parties consent to the application.[4] The application raises the following issues:(i) Does the jurisdiction under s 64 extend to appeals filed in this Court from the Environment Court pursuant to s 299 Resource Management Act 1991?(ii) Do the circumstances of this particular proceeding qualify as exceptional to justify removal?Background[5] Both Buller Coal and Solid Energy New Zealand Limited are in the process of seeking regional and district consents in connection with coalmines they respectively propose on the West Coast.[6] In August 2011, independent commissioners granted consent to Buller Coal. West Coast ENT Incorporated and Royal Forest and Bird Protection Society of New Zealand have appealed that decision to the Environment Court.[7] One of the grounds of the appeal is that the commissioners erred in not having regard to the effect of the proposed mine on climate change. More specifically, it is contended that the commissioners were required to take into account effects on climate change from the discharge into air of greenhouse gasesthat might arise from the subsequent combustion of the coal, whether such discharges occur within New Zealand or elsewhere in the world where the coal has been exported.[8] The issue turns on the construction of various provisions in the Resource Management Act and the scope of a Supreme Court decision, Genesis Power Ltd v Greenpeace New Zealand Inc.1[9] Solid Energy's application for its proposed coalmine has not yet been determined. However, the same issue regarding climate change will arise.[10] All parties agree that the climate change issue is purely an interpretation point, capable of being (and most suitably) answered through declaratory proceedings rather than through the substantive appeals.[11] An application was therefore made for a declaratory judgment from the Environment Court based on an agreed statement of facts.[12] After hearing legal submissions, the Environment Court duly issued a declaratory judgment upholding the interpretation of Buller Coal and Solid Energy, namely that the effects on climate change are to be disregarded.[13] Forest and Bird then invoked its right of appeal under s 299 Resource Management Act and appealed the climate change decision to this Court.[14] Forest and Bird did not, however, seek a stay of the substantive appeal pending the outcome of its appeal about the climate change issue. The substantive appeal hearing in the Environment Court is due to commence in October this year,and, in accordance with the Environment Court's declaratory judgment, will notconsider climate change issues. Buller Coal and Solid Energy are prepared to take the risk that any decision could be later impugned if the declaratory judgment is found on appeal to have been wrong.1 Genesis Power Ltd v Greenpeace New Zealand Inc [2009] 1 NZLR 730 (SC).[15] After the climate change appeal had been issued in this Court, Buller Coal filed an application to transfer it into the Court of Appeal under s 64 of the Judicature Act.[16] As I have mentioned, all parties consent to the transfer.[17] However, s 64(4) expressly provides that the fact the parties agree to transfer is not in itself a sufficient ground for an order transferring the proceedings. It is incumbent on this Court to satisfy itself that the requirements of s 64 are met.[18] In this case, there is also a more fundamental jurisdictional issue to be resolved first, and it is to that issue that I now turn.Does the jurisdiction under s 64 apply to an appeal from the Environment Court?[19] In Batchelor v Tauranga District Council,2 Barker ACJ held that there was no jurisdiction under s 64 Judicature Act to order transfer of an appeal that had been brought pursuant to s 299 Resource Management Act.[20] However, at the time Batchelor was decided, the power conferred by s 64 was expressly limited to specified classes of proceedings which did not include appeals under the Resource Management Act. The list of specified classes was removed by an amendment to s 64 in 1998. Since then, in order to be eligible for transfer, a proceeding need only be "a civil proceeding."[21] I am satisfied that an appeal under s 299 Resource Management Act is a civil proceeding for the purposes of s 64 and that accordingly the Batchelor decision is no longer good law.[22] It follows that, in my view, there is jurisdiction.[23] In coming to that conclusion, I have not overlooked s 308 Resource Management Act. It states that s 144 Summary Proceedings Act 1957 applies to a2 Batchelor v Tauranga District Council [1993] 2 NZLR 80 (HC).decision of the High Court made on an appeal from the Environment Court. Section 144 Summary Proceedings Act outlines the procedure for appeals from the High Court to the Court of Appeal. The Summary Proceedings Act also contains a provision (s 113) which provides for removal of points of law into the Court of Appeal. Section 308 does not, however, mention s 113 and, for that reason, was described by Barker ACJ in Batchelor as a "clear signal" from the legislation that anappellant from the Planning Tribunal must appeal first to the High Court.[24] The wording of s 308 is still the same as it was at the time of the Batchelordecision.[25] However, in my view, the inference to be drawn from the absence of a reference to s 113 in s 308 is a relatively tenuous one and, in light of the unambiguous 1998 amendment to s 64, is an inference that should not now be drawn to deny jurisdiction. The Batchelor decision essentially turned on the pre-1998 wording of s 64.Do the circumstances of this particular proceeding qualify as exceptional to justify bypassing the High Court?[26] Section 64 states:64 Transfer of civil proceedings from High Court to Court of Appeal(1) If the circumstances of a civil proceeding pending before the High Court are exceptional, the High Court may order that the proceeding be transferred to the Court of Appeal.(2) Without limiting the generality of subsection (1), the circumstances of a proceeding may be exceptional if—(a) A party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled by the Court of Appeal:(b) The proceeding raises 1 or more issues of considerable public importance that need to be determined urgently, and those issues are unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal:(c) The proceeding does not raise any question of fact or any significant question of fact, but does raise 1 or more questionsof law that are the subject of conflicting decisions of the High Court.(3) In deciding whether to transfer a proceeding under subsection (1), a Judge must have regard to the following matters:(a) The primary purpose of the Court of Appeal as an appellate court:(b) The desirability of obtaining a determination at first instance and a review of that determination on appeal:(c) Whether a Full Court of the High Court could effectively determine the question in issue:(d) Whether the proceeding raises any question of fact or any significant question of fact:(e) Whether the parties have agreed to the transfer of the proceeding to the Court of Appeal:(f) Any other matter that the Judge considers that he or she should have regard to in the public interest....[27] In arguing that the circumstances are exceptional, counsel for Buller Coal, Mr Hodder, advanced the following arguments:(a) The fact the parties have chosen the declaratory judgment process with a desire to fast track the issue.(b) Partly because of the way the Supreme Court and the Court of Appeal expressed themselves in Genesis and the tenacity of the parties, final resolution of the climate change issue can only be achieved in the Court of Appeal or possibly the Supreme Court. Whatever the outcome, an appeal from any High Court decision is inevitable. A firm statement from the Court of Appeal (and possibly the Supreme Court) as to what was intended in the Genesis decision is what is required.(c) The issue of climate change is one of very significant public interest and the case is likely to be of general application beyond coalmines(d) The Court of Appeal will still be acting as an appellate Court because it will be considering an appeal from the Environment Court.(e) The Court of Appeal will still have the benefit of a reasoned judgment from a first instance Court.(f) Because of the agreed statements of facts, the Court of Appeal will not be required to embark on any factual enquiries or be burdened by any interlocutory applications.(g) The delay that will be caused by having to undergo three (possibly four) appeals is prejudicial. For Buller Coal and Solid Energy, time is money. Further delay will cause considerable loss of investor confidence, is likely to have a significant effect on confidence in overseas investment in large resources projects in New Zealand and will impact on the region.(h) There is no prejudice to any party if the High Court is bypassed, and the fact that all parties consent, while not determinative, is nevertheless relevant.[28] After careful consideration, and having regard to the matters in s 64 and those raised by Mr Hodder, I have however come to a clear view that the circumstances of this case are not exceptional.[29] It is likely I would have reached a different conclusion had the issue been whether Genesis was correctly decided. However, that is not the issue. The issues are in fact relatively straightforward ones of statutory interpretation and whether the Supreme Court decision and reasoning is distinguishable. Further, and importantly, the appeal can be heard in this Court within the next two months. In contrast, according to Mr Hodder's information, any appeal to the Court of Appeal will not beable to be heard until next year. It follows that arguments about delay and resulting prejudice are simply not sustainable. The only possible prejudice is duplication of costs.[30] I accept the parties could have applied to the High Court in the first instance for a declaratory judgment, and so avoided having three, possibly four hearings. However, they did not take that course of action. There is still benefit to be gained from having a High Court decision on the matter.[31] In my view, to allow transfer in this case would set an unfortunate precedent and would breach the well established principle that the power to bypass the High Court should be exercised only sparingly and only exceptionally for clear reasons applicable to the particular case.[32] I direct that the appeal is to be set down for a one day hearing in this Court on 30 July 2012 before Whata J. This is earlier than the date that was discussed in Court, but given the relatively narrow issues should not be problematic.[33] There will be a conference call this Friday 20 July 2012 at 9.30 am with Whata J to discuss timetabling.[34] Although the application has been unsuccessful, it was supported by all parties and accordingly there will be no award for costs.Solicitors:P D Anderson, Royal Forest and Bird Protection Society of New Zealand, ChristchurchChapman Tripp, Christchurch and WellingtonAnderson Lloyd, Christchurch and DunedinLee Salmon Long, AucklandDuncan Cotterill, Christchurch