SIMONS HILL STATION LTD and SIMONS PASS STATION LTD v ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORP. [2013] NZHC 2262

SIMONS HILL STATION LTD and SIMONS PASS STATION LTD v ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORP. [2013] NZHC 2262 [2 September 2013]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2013-409-000904[2013] NZHC 2262BETWEEN SIMONS HILL STATION LIMITED andSIMONS PASS STATION LIMITEDPlaintiffsAND ROYAL FOREST & BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDDefendantHearing: 22 August 2013Appearances: N R W Davidson QC for PlaintiffsS R Gepp and P D Anderson for DefendantJudgment: 2 September 2013JUDGMENT OF ASSOCIATE JUDGE MATTHEWS[1] The plaintiffs, which I will refer to collectively as the land owners, are the owners of a farm in the Mackenzie Basin. They hold resource consents issued by Environment Canterbury to take and use water. The defendant (Forest & Bird) has lodged an appeal against the grant of these consents to the Environment Court. There are other parties to the appeal. One is a group called Mackenzie Guardians which, as I understand it, is a group advocating the preservation and enhancement of the environment in the Mackenzie Basin on a basis wider than issues relating to water use raised in the appeals. This group has joined the appeal by giving notice under s 274 of the Resource Management Act 1991.[2] In order to prepare its case for the appeal, Forest & Bird approached the land owners seeking access to their property to carry out site investigations. They had engaged Dr Susan Walker, a terrestrial ecologist, for this purpose. The land ownersagreed to Forest & Bird and any experts or sub-contractors engaged by it entering the property for this purpose, but required Forest & Bird to sign an agreement setting out the terms on which this could take place. The required agreement was executed and inspections undertaken.[3] The land owners and Forest & Bird disagree over the extent of the limitations on use of the information obtained during this process, as set out in the agreement. The land owners have brought this proceeding seeking a declaration as to the meaning of the deed. They have applied for summary judgment on the basis that they can demonstrate that Forest & Bird does not have a defence to the application.1The evidentiary burden of establishing this position rests entirely on the land owners.2[4] In the statement of claim the relief sought is a declaration that clause 3.2 of the site access agreement does not permit Forest & Bird to make the information gathered pursuant to the site inspection agreement available to any other party without the prior agreement in writing of the plaintiffs. During the course ofargument Mr Davidson sought to add to the declaration the words "or the direction of the Environment Court".[5] The issue is whether, on a proper interpretation of the site access agreement, a declaration should be made on this application for summary judgment.[6] I raised with counsel a preliminary point, the jurisdiction I have as an Associate Judge to make a declaration. Counsel advise that both parties accept that I have jurisdiction. The point arises from s 26I of the Judicature Act 1908, and s 26IA. The former provides that an Associate Judge shall have and may exercise all the jurisdiction and powers of the Court in relation to certain matters, the first ofwhich is "any application for summary judgment".3 Section 26IA, which is headed"Ancillary Powers of Associate Judge", provides in subs (1) that an Associate Judge shall have, in all proceedings properly before the Judge, jurisdiction to make any order or to exercise any authority or jurisdiction that might be made or exercised by1 Rule 12.2 High Court Rules.2 Auckett v Falvey HC Wellington CP296/86, 20 August 1986.3 Section 26I(1)(a).a Judge of the High Court. Subsection (2) provides, however, that nothing in subs (1) confers on an Associate Judge any jurisdiction or power of a kind described in subs (3) or (4) of s 26J, and the list in s 26J(4) includes the grant of relief by way of a declaration.[7] This raises the question of whether an Associate Judge may grant a declaration on an application for summary judgment. Section 26I supports the proposition that an Associate Judge does have this jurisdiction, but s 26IA may detract from this.[8] The point was determined in Cordova v Wenzel.4 His Honour analysed the sections, though in the context of an order by way of an injunction rather than a declaration. Both forms of relief are in the same category. The Court found that Associate Judges have jurisdiction to grant injunctive relief when entering summary judgment. There is no distinction between that position, and the position with a declaration. I respectfully adopt His Honour's reasoning.The site access agreement[9] The following are the relevant provisions of the site access agreement:(a) It is between the plaintiffs and defendant in this case, and states "Forthe avoidance of doubt, any experts or subcontractors working for Forest & Bird are included within this agreement as 'Forest & Bird'."(b) The plaintiffs are called "the farmers".(c) Clauses 1, 2, 3.1, 3.3, 3.4, 3.5 and 3.6 impose tight controls on the actions of Forest & Bird when taking access to the property. For example, the grant of access is at the absolute discretion of the farmers who may impose conditions from time to time in their absolute discretion. Requests for access must be made at least 14 days in advance accompanied with full particulars of the purpose of the proposed access, the names of those attending, their areas of expertise,4 Cordova v Wenzel (2005) 18 PRNZ 184 (HC).the exact proposed days, dates and times of access, the areas within the properties where access is requested, and the vehicles proposed to be used. Those taking access must be accompanied by a representative of the farmers and must report to the farmers before going on the property. At the end of each day Forest & Bird and their experts are required to provide copies of their notes and photographs etc to the farmers, and it is mandatory that notes of observations and data collected are kept. Forest & Bird is responsible for ensuring that its representatives and appointed experts are aware of and agree to the terms of access set out in the agreement, and they are required to give written signed confirmation to the farmers. Forest & Bird remains at all times entirely responsible for the actions of their representatives and experts.(d) Clause 3.2 sets out the agreement in relation to the observations, data, photographs and information collected by or for Forest & Bird. It provides:All observations, data, photographs, and any other information collected by Forest and Bird, and all experts and subconsultants appointed by Forest and Bird during access gained under this agreement, shall be the sole property of the Farmers and shall, except with the prior written approval of the Farmers, be used only by Forest and Bird strictly for the purposes of preparing evidence for its appeal and for no other purpose whatsoever, whether the information exists in the public domain or not. However, Forest & Bird and Dr Walker are entitled to respond to any statement in the public arena where the information is presented is selective, inaccurately presents the information collected or is critical of either Forest & Bird or Dr Walker.[10] Forest & Bird and its advisor, Dr Walker, obtained the information they require. Dr Walker has prepared a report which Forest & Bird intends to use in the Environment Court appeals. No issue has arisen in relation to the various stipulations and restrictions relating to access, reporting and so forth which are required by the site access agreement. The difficulty which has arisen is that Forest & Bird made the information gleaned from the property, and the report of Dr Walker, available to the Mackenzie Guardians, and the Mackenzie Guardians then gave it to the Mackenzie District Council. Whilst that Council is not involved in the present Environment Court litigation, the land owners are particularly concerned. They saythis is the kind of sequential dissemination of the information derived from their property, which under clause 3.2 is their sole property, which clause 3.2 is specifically intended to prevent. Whilst both counsel confirmed that when theMackenzie Guardians were advised about limitations on Forest & Bird's ability todistribute this information they wrote to the Mackenzie District Council and the latter deleted the information, nonetheless, the land owners say that Forest & Bird breached the agreement by providing the information to the Mackenzie Guardians, which they specifically intended to avoid by imposing the tight restrictions which are set out in the agreement. Forest & Bird maintain they acted as they are entitled to under the site access agreement.[11] For the sake of completeness I record that Forest & Bird has filed an affidavit from Dr Walker in support of its opposition to an application by the land owners to strike out its appeal. Issues have arisen before that Court in relation to the use of theinformation in Dr Walker's affidavit. The Environment Court is aware that this Court has before it this application for a declaration. It has directed Forest & Bird to serve the affidavit on the parties to the application to partially strike out the appeals, but has directed that those parties are not to provide the contents of the affidavit to any party who is not a party to the strike out. The Court may amend these directions following the determination of this application for a declaration.The case for the land owners[12] Mr Davidson says that the Court is entitled to interpret the agreement in light of the context in which it was signed. The agreement was drafted to tightly control access to the property, retain ownership of information gleaned from it, and allow its use only within the Court controlled process of the Environment Court, given the actions of the Mackenzie Guardians and others who are advocating restrictions on development and use of resources in the Mackenzie Basin, and associated media and public attention.5[13] He says that the information concerned is the property of the land owners and without their prior written approval:5 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 2 NZLR 444 (SC).(a) It may only be used by Forest & Bird, and(b) Forest & Bird may only use it for the purposes of preparing evidence for its appeal, but not for any other purpose, and this restriction remains whether the information exists in the public domain or not. The only exception is that Forest & Bird and Dr Walker may use the material to respond to any statement in the public arena where the information in that statement is selective or inaccurately presents the information collected, or is critical of either Forest & Bird or Dr Walker.[14] Mr Davidson says that the phrase "for the purposes of preparing evidence for its appeal" includes not only the preparation of that evidence in the literal sense ofdrafting witness statements for the appeal, but also the provision of the material to other parties to the appeal during what he describes as the legitimate exchange of evidence, caucusing of witnesses under Court direction, and presentation of the evidence at the Environment Court hearing. At that point, and only at that point, the information will come into the public arena because until then, Mr Davidson says,the information will be "enshrined in the confidence that surrounds evidence until presented in a public hearing".[15] Mr Davidson acknowledges that if Forest & Bird were preparing its case and using the evidence for that purpose, it may wish to discuss the evidence with another party, for example with a view to aligning evidence, or saving costs of experts. In that event, however, Forest & Bird would need to be conscious of the restrictions, and on the face of it the material could not be provided to other parties this way without the consent of the land owners. Mr Davidson says that otherwise an absurd position would be reached: for example, the Mackenzie Guardians may receive the report on an informal basis in such a circumstance, and talk about it or provide it to others, but not be bound by a confidentiality agreement. One possible recipient may be a local council (as occurred in the way I have described) but another example might be the media. This demonstrates, Mr Davidson says, the ease with which this carefully drafted agreement, imposing tight controls as conditions of the privilege of obtaining evidence from the land owners' property, could be avoided if the agreement is interpreted as Forest & Bird advocate.The case for Forest & Bird[16] Forest & Bird maintains that the permitted use of the information taken frominspections of the land owners' property, "for the purposes of preparing evidence forits appeal and for no other purpose whatsoever" includes making that information available to other parties during the course of the process of preparing evidence. Ms Gepp points out that a 2011 Practice Note issued by the Environment Court contains extensive provisions concerning expert witness conferences, and records an expectation on the part of the Court that expert conferencing will occur prior to a hearing as a matter of course. The Court notes that in many circumstances it will be advantageous to do so before full briefs of evidence are prepared, and notes that the parties should be able to make arrangements for this without Court intervention, in most cases. Ms Gepp says that Forest & Bird participates in this procedure and maintains that in the course of so doing, it can pass the information in question to other parties.[17] Ms Gepp says that the agreement envisages that information obtained fromthe site investigations will be used as evidence so the word "preparation" is not usedin the agreement in a narrow sense. It should include all the uses of evidence within the procedures of the Environment Court including expert witness caucusing, affidavit evidence where required on interlocutory applications and ultimately the filing and exchange of briefs of evidence. She notes that the land owners do notargue that the phrase "preparation of evidence" is restricted only to exactly that, as I have noted, and therefore the phrase should be interpreted to include using the evidence once in draft form, in the way usually undertaken with Environment Court processes, at a minimum expert witness caucusing before briefs of evidence are exchanged, the filing and service of briefs of evidence, and oral evidence. Shedescribes it as inconceivable that Forest & Bird would require the land owners'consent in those circumstances.[18] Ms Gepp submits that Forest & Bird was entitled to provide the information to the Mackenzie Guardians so that the expert witnesses for that organisation were aware of it when preparing their evidence. That, she says, is a use by Forest & Birdof the information for the purposes of evidence preparation for Forest & Bird'sappeal.[19] Ms Gepp takes issue, too, with the terms of the declaration sought by the land owners. I will return to this issue.[20] Ms Gepp says that the land owners have not established that Forest & Bird does not have a defence, as they must, for summary judgment to be entered. She also says that even if it has a defence, the Court should exercise the discretion it has not to enter summary judgment6 and she says that the declaration sought would be contrary to the interests of justice, which I take to mean that it may adversely affect the appeal process before the Environment Court. She also says that making the declaration sought would be potentially futile, as the information will come into the public arena at the time of the appeal, in any event, and other parties to the Environment Court proceeding could seek leave from that Court for a direction that the land owners disclose the information. She says the land owners would not be able to make out a ground for resisting such an order.Discussion[21] The issue in this case is the correct interpretation of clause 3.2 of the site access agreement, which sets out the agreement between the land owners and Forest & Bird on ownership of the observations, data, photographs and other information collected from the property, and who may use that information and the manner in which it may be used. In my opinion the wording of this clause is quite clear. It contains three propositions:(a) The information referred to is "the sole property of the farmers".(b) The information "shall, except with the prior written approval of the farmers, be used only by Forest & Bird".(c) Without that approval the use by Forest & Bird is to be "strictly for thepurposes of preparing evidence for its appeal and for no other purpose6 Rule 12.2.whatsoever". The only exception to this is that Forest & Bird and DrWalker are entitled to respond to any statement in the public arena where the evidence is presented which is selective, inaccurately presents the information collected, or is critical of either Forest & Bird or Dr Walker.[22] Prior to these proceedings there was correspondence between the solicitors for the land owners and Forest & Bird in which the land owners raised their concerns at the actions of Forest & Bird in making the information available to the Mackenzie Guardians, and Forest & Bird responded. In my view the position that Forest & Bird takes is well encapsulated in a passage written to the solicitors for the land owners on Forest & Bird letterhead, and signed by counsel who appeared for Forest & Bird on this application. In paragraph 4 it is stated:Clause 3.2 does not provide that the information can only be used by Forest & Bird. Rather, it restricts the manner in which Forest & Bird can use the information; that is, the use must be for preparation of evidence for the appeal. The use that Forest & Bird has put the information to is provided toanother party to the appeal (Mackenzie Guardians), at that party's request, toassist one of that party's witnesses with the preparation of evidence for theappeal. This is not a breach of the agreement.[23] I disagree. Clause 3.2 expressly provides that the information can only be used by Forest & Bird. This is, in my view, the proper interpretation of the phrase"... be used only by Forest & Bird strictly for the purpose of preparing evidence forits appeal and for no other purpose whatsoever ...". The word "only" follows the word "used", making it clear that it is Forest & Bird, only, which may use thematerial. If the phrase I have quoted had not had the word "only" in it, so that it read "... be used by Forest & Bird strictly for the purposes ...", that would not necessarily be the case. There would be just one express limitation on use of the material.However, the insertion of the word "only" can only have the additional meaning ofconfining use to Forest & Bird solely, and cannot be construed to mean that the information can only be used for the purposes of preparing evidence for its appeal,because that meaning is given by inclusion of the word "strictly" in the sentence. Thus "only" limits who may use the information, and "strictly" limits the purpose forwhich it may be used.[24] I acknowledge the accepted processes for evidence preparation in the Environment Court and understand how those processes operate and the sound reasons for them. The Environment Court hears and is required to assess a substantial amount of opinion evidence. Procedures by which experts consider eachother's views are essential to distilling areas of agreement and crystallising areas ofdisagreement, and establishing the views of experts on the views of other experts, where they disagree. I have no doubt, given its experience with Environment Court processes, that Forest & Bird was well aware of these procedures at the time itsought access to the land owners' properties and agreed to their terms, as recorded inthe deed. If those terms do not allow them to proceed as they may wish in making available information they intend to produce at the Court hearing to others who are also involved, that is a limitation they freely accepted as the basis upon which theycould enter the land owners' property, and they cannot now demur.[25] Although I find the wording of clause 3.2 clear, I will refer briefly to the context in which the agreement was reached, and other terms of the agreement.[26] I have set out Mr Davidson's submissions on the context, above (at [12]). Evidence on context is also given by Mr C J Todd, the South Island conservation manager of Forest & Bird. He says that both the land owners and Forest & Birdwere aware that Forest & Bird was engaged in what he describes as "Save the Mackenzie Campaign" the aim of which is to protect the areas, landscapes and biodiversity. This campaign has three main foci: tenure review processes, thecollaborative "Mackenzie forum" process, and participation as an interested party inconsent processes for the taking and using of water for irrigation.[27] Thus at the time the agreement was signed the land owners and Forest & Bird were aware of the broader perspectives and aims of Forest & Bird. Both were also aware of the aims of the Mackenzie Guardians. Broader objectives than merelyopposing the land owners' own applications for resource consent were held by these two organisations. In this context the intention of the land owners to confine use of information derived from analysis of their property to the specific Court process in which they were involved, can readily be inferred from the site access agreement.[28] The terms of the site access agreement itself also make it abundantly clear that the land owners intended to maintain complete control over who went on their property, as well as ownership of the information derived from it. This, too, supports the view that although Forest & Bird and its advisors were allowed onto the property for the purposes of gaining information for the appeals, the licence so to do was restricted to Forest & Bird only, and for the purposes of the appeal.Outcome[29] The land owners have satisfied me that their interpretation of the land access agreement is correct and that Forest & Bird does not have a defence to their claim.[30] Further, I do not accept Ms Gepp's submission for Forest & Bird that making the declaration now sought would be contrary to the interests of justice, for the reasons outlined above at [20], because the declaration sought by Mr Davidson is subject to any order that the Environment Court would make. The declaration would certainly preclude Forest & Bird from giving the information to any other partywithout an order of the Court, for example pursuant to the Environment Court'susual practices, but it would be open to the Environment Court to make specific orders in relation to evidence, that respected the land owners' ownership of the information, and the restrictions imposed on Forest & Bird in relation to it. Any application for an order by the Environment Court would be served on the land owners who would be able to be heard on it, unless agreement on terms could be reached with Forest & Bird.[31] Nor do I see the making of the declaration sought as potentially futile, because although the information will come into the public arena in due course, the land owners have never sought to go further than restricting its use to the current appeal proceeding, which includes within it the eventual production of the information in Court. The prospect of other parties to the Environment Court proceeding seeking leave from that Court for a direction that the land owners disclose the information would, again, give the land owners opportunity to be heard, and I am confident that due recognition would be given to the fact that theinformation is actually owned by the land owners, and only a limited licence for its use has been granted.[32] Accordingly I make a declaration in the following terms:Clause 3.2 of the Site Access Agreement does not permit Forest & Bird to make the information gathered pursuant to the Site Inspection Agreement available to any other party without the prior agreement in writing of the plaintiffs or the direction of the Environment Court.[33] The land owners are entitled to costs, which will be paid on a 2B basis together with disbursements to be fixed by the Registrar._______________________J G MatthewsAssociate JudgeSolicitors:Wilding Law, Christchurch.Royal Forest and Bird Society of New Zealand Inc, Christchurch.