TE WHARE O TE KAITIAKI NGAHERE INCORPORATED SOCIETY v ANIMAL CONTROL PRODUCTS LIMITED AND ORS [2014] NZHC 1903

TE WHARE O TE KAITIAKI NGAHERE INCORPORATED SOCIETY v ANIMAL CONTROL PRODUCTS LIMITED AND ORS [2014] NZHC 1903 [13 August 2014]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2013-409-001548[2014] NZHC 1903BETWEEN TE WHARE O TE KAITIAKINGAHERE INCORPORATED SOCIETYAppellantAND ANIMAL CONTROL PRODUCTSLIMITEDRespondentCIV-2013-409-001554BETWEEN TE WHARE O TE KAITIAKINGAHERE INCORPORATED SOCIETYAppellantAND WEST COAST REGIONAL COUNCILFirst RespondentAND TBFREE NEW ZEALAND LIMITEDSecond RespondentAND EPRO LIMITEDThird RespondentAND DIRECTOR-GENERAL OFCONSERVATIONFourth RespondentAND ROGER LORIGANFifth RespondentAND KANE STAFFORDSixth RespondentCIV-2014-409-000222BETWEEN TE WHARE O TE KAITIAKINGAHERE INCORPORATED SOCIETYAppellantAND WEST COAST REGIONAL COUNCILFirst RespondentAND ANIMAL HEALTH BOARDINCORPORATEDSecond RespondentAND EPRO LIMITEDThird RespondentAND DIRECTOR-GENERAL OFCONSERVATIONFourth RespondentAND ROGER LORIGANFifth RespondentAND KANE STAFFORDSixth RespondentAND CHRISTOPHER COWANSeventh RespondentHearing: 4 August 2014Appearances: DTD Dick, P Paterson and F Fehling appearing in person onbehalf of appellantB G Williams and HSJ Pedler for TBFree NZ and DirectorGeneral of Conservation and Animal Control Products LimitedN Laws for West Coast Regional Council, EPRO Limited,K Stafford and R LoriganJudgment: 13 August 2014JUDGMENT OF DUNNINGHAM JA complicated proceeding is filed in the Environment Court[1] Te Whare O Te Kaitiaki Ngahere Incorporated Society (Te Whare) is an organisation which is vehemently opposed to the use of 1080 poison.1 It became concerned about alleged contraventions of conditions of 12 resource consents1 Technically known as sodium monofluoroacetate, but more commonly known as 1080.granted by the West Coast Regional Council to the Animal Health Board Incorporated2 to use 1080 for pest control.[2] It took those concerns to the Environment Court, filing an application for 761 declarations against 39 different persons and organisations directly or indirectly involved with the distribution and use of 1080. The application was supported with 23 affidavits, with accompanying exhibits totalling nearly 1,500 pages, and including several hours of video footage.[3] Unsurprisingly with proceedings of such magnitude, a number of the parties named in the proposed declarations applied to the Environment Court to strike out the application as it related to them or, in the alternative, to fix security for costs.[4] In due course, 323 of the declarations were either struck out or withdrawn,3but some 438 claimed declarations remain on foot, albeit still subject to applications to have them strike them out.How did these three appeals arise?[5] There are three appeals addressed in this decision. They all arise out of interlocutory decisions made by the Environment Court in the course of managing the declaration proceedings. I briefly explain the circumstances in which each appeal arose under the next three headings.The refusal to state a case[6] In order to bring some focus into the proceedings, at a pre-hearing conference held on 15 May 2013, the Environment Judge tentatively identified two preliminary points of law which, depending on the outcome, would determine whether most of the remaining 438 applications could be sustained. She invited the parties to comment on the content and wording of the preliminary legal issues with a view to setting them down for preliminary argument.2 Now TB Free New Zealand.3 In either case with the agreement of a lawyer who was briefly engaged by Te Whare.[7] Te Whare responded to the Court's suggestion by proposing alternative wording for the two points of law, and identifying three additional points of law upon which it sought a preliminary determination. The additional questions revealed that Te Whare was not simply concerned with compliance with the conditions of resource consent, but also with how such consents are granted, including the consentauthority's decisions as to who are affected persons and what constitutes "less than minor effects", for the purposes of deciding whether to notify an application for resource consent.[8] By a Minute dated 13 June 2013, the Court, confirmed the wording of the two preliminary legal issues in the form accepted by the s 2744 parties to the declaration proceeding rather than the modified version proposed by Te Whare. The Court also declined to address the three additional legal issues which had been raised by Te Whare, primarily because they were not legal issues which arose for determination in the proceedings already before the Court.[9] In response, Te Whare sought that the Environment Court state a case for the High Court on the five legal issues as framed by Te Whare pursuant to s 287 of the Resource Management Act 1991 (RMA). In a decision dated 11 September 2013, Judge Newhook declined to do so.5[10] The first appeal is brought in respect of that decision (The Case Stated Appeal).6The application for security for costs[11] Five applications for security for costs were filed by seven s 274 parties:(a) TBFree New Zealand Limited (formerly the Animal Health Board Incorporated);(b) West Coast Regional Council;4 Resource Management Act 1991, s 274.5 Te Whare O Te Kaitiaki Ngahere Inc v Animal Health Board Incorporated and Ors[2013] NZEnvC 210 [Case Stated Decision].6 CIV-2013-409-1554.(c) The Director-General of Conservation;(d) Epro Limited, K. Stafford and R. Lorigan; and(e) C. J. Cowan.[12] Although, as the Court acknowledged, applications for security for costs would normally be considered after any strike-out application, here, because therewas a "plethora of claims", it was considered appropriate to determine theapplication for security for costs prior to the remaining strike-out applications.[13] Te Whare did not agree with this course of action and applied to the High Court for an order that the applications for security for costs be stayed. That application was declined and, on 3 March 2014, the application for security for costs was determined by the Environment Court.7[14] Although the quantum of security sought by each party ranged from $5,000 to $20,000, the Court set the quantum for each of the five applications at $5,000. As a result, Te Whare was required to give security for costs either by paying the total sum of $25,000 into Court, or by giving security for that sum to the satisfaction of the Registrar. Its application for declarations was stayed until such security was given.[15] The second appeal is brought in respect of that decision (the Security for Costs Appeal).8The application for costs[16] Animal Control Products Limited (ACP), was one of the 39 parties in respect of which declarations were sought. On 16 April 2013, the Court, with the agreementof Te Whare's then-lawyer, granted the application to strike-out the declarations affecting ACP, and 15 other parties, but with costs reserved.7 Te Whare O Te Kaitiaki Ngahere Incorporated v TBFree New Zealand and Ors [2014] NZEnvC 41 [Security for Costs Decision].8 CIV-2013-409-222.[17] ACP sought indemnity costs of $16,664.37, but costs of $10,000 were awarded.9 Te Whare now appeals that award of costs (the Costs Decision Appeal).10[18] While these are three separate appeals, they all emanate from the same Environment Court proceeding, they were heard together in this Court, and it is convenient to set out the decisions on all three appeals together given the common factual background, and the overlap in the parties involved.What is this Court's jurisdiction on appeal?[19] As was emphasised by the respondents on all three appeals, an appeal against any decision of the Environment Court may only be made to the High Court on a question of law.11[20] A question of law arises where the Environment Court:12(a) applied a wrong legal test; or(b) came to a conclusion without evidence, or one to which, on the evidence, it could not reasonably have come; or(c) took into account matters which should not have been taken into account; or(d) failed to take into account matters which it should have taken into account.[21] It is the responsibility of the appellant to identify the question of law at issue and then to establish that the Environment Court has incorrectly determined thatissue. An error of law must materially affect the result of the Environment Court'sdecision before the High Court should grant relief.139 Re Te Whare O Te Kaitiaki Ngahere Incorporated [2013] NZEnvC 136 [Costs Decision].10 CIV-2013-409-1548.11 Resource Management Act 1991, s 299(1).12 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC), at 153.13 At 153.[22] The appellant, Te Whare, had some difficulty in articulating the question, or questions, of law that it relied on in each appeal and to differentiate that from an appeal of the substantive decision itself. In reality, as Mr Paterson franklyacknowledged, Te Whare's main concern was that it considered it had a legitimatecase it wished to pursue on the granting and implementation of consents to use 1080, but the decision on security for costs (and, to a lesser extent, the ACP costs decision) effectively precluded its case from progressing.[23] In other words, Te Whare's case had, in effect, been struck out, when therewas no proof the case was clearly untenable.14[24] While I have borne that concern in mind as I discuss the three appeals, it is only relevant if I am satisfied that the Environment Court failed to have regard to that consideration, and to take it into account, on the occasions where it was relevant to the exercise of its discretion.The Case Stated Appeal[25] Dealing first with the Case Stated Appeal, the five legal issues, as framed by Te Whare, and which it asked to be referred to the High Court under s 287 of the RMA, are as follows:Main Questions of Law(a) Is the democracy–undermining (incl. intimidating) potential or real health–damaging effect of proven, negligent, careless, and/or deliberate misuse of ecotoxic 1080 poison a less–than–minor effect on the general public (affected persons) per SS.94A, 95E(1) Resource Management Act (RMA), so that the public can be refused legal input and judicial review of resource consent application?(b) Should the onus of proof per SS.94A, 95E(1) RMA and ss.4, 5, 6, 8, 9, 10 Bill of Rights, that 1080 practices, handling and distribution would have less than minor effects on the public (affected persons and flora and fauna), lie with the Resource–Consent provider and/or holder/applicant, rather than with the public (via its health & lives)?14 Citing the test for striking out a cause of action articulated by the Court of Appeal inAttorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267, referred as to by the Supreme Court in North Shore City Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [145]-[146].(c) Does the interpretation of "less-than-minor" level and "affected parties" per SS.94A, 95E(1) RMA have to be in line with SS.4, 6Bill of Rights 1990? (See Ministry of Transport v Noort [1992] 3 NZLR 260 COA; Majority decision for the Interpretation of Laws to be in line with the Bill of Law!)Sub-Questions of Law(d) Are resource consent–related permits or authorizations granted by persons other than the consent authority (namely the West Coast Regional Council), and separately certain named guidelines, within the scope of the resource consent granted by this council and therefore enforceable under the RMA – that means a declaration per S.310 with enforcement orders per S.316 in relation to the compliance with the related permits or authorisations?(e) Does an authorised person involved in the enactment of a Resource Consent, without being a consent holder, owe a duty or obligation to ensure compliance with the conditions of a resource consent?[26] In its decision declining Te Whare's request, the Court dealt with the three"Main Questions of Law" separately from the last two "Sub-Questions of Law".15 In relation to the first three questions of law, the Court held that they were not matters which arose in the application for declarations. Instead they called into question the non-notification of the original consent applications by the Regional Council, whereas the application for declarations was about alleged breaches of the conditions on which the consents which were granted.[27] Importantly, the Court also noted that s 310(h) of the RMA expressly excluded from the jurisdiction of the Environment Court, the ability to issue a declaration as to whether any of sections 95-95F have been contravened, (being the sections of the RMA which are concerned with whether applications for resource consent should be notified). Accordingly the jurisdiction for that is with the High Court, not the Environment Court.[28] The Environment Court Judge observed that although Te Whare aimed to get those issues into the High Court, it was not "in the interests of efficientadministration of justice for proceedings wholly within the jurisdiction of the High Court to arrive there via proceedings commenced in the Environment Court on15 Being headings ascribed to the questions by Te Whare.different issues".16 It concluded that "the present proceedings should not be used as some kind of ill–conceived conduit to the jurisdiction of the High Court. Proceedings can be commenced there directly if enabled by legislation and thoughtappropriate".17[29] In relation to the last two questions, the Judge observed that "Te Whare's re- phrasing of the 2 issues neither adds to nor clarifies matters for preliminarydetermination".18 More importantly, the Judge held that providing the answers to such questions was entirely within the competence and expertise of the Environment Court as a specialist Court and should be argued before it.19 If any party was to consider the subsequent decision of the Environment Court to be wrong then it would be amenable to appeal on points of law in the usual way.20[30] Te Whare has filed a document in this appeal described as an"Argumentation", and which sets out what is described as a "first question of law on appeal to the High Court" in respect of the Case Stated Appeal. In reality it is twoquestions followed by 10 numbered paragraphs which appear to range across a number of other alleged errors or questions of law.First question of law in notice of appeal[31] The purported first question of law reads as follows:Must the judge's discretionary opinion per S.287 RMA regarding therequested referral of the applicant's 5 questions of law to the High Court be based on correct RMA applications/interpretations rather than on arbitrary at-will justice–perversion and offender–protection from the law, andDoes S.314(1)(e) (scope of enforcement order) together with S.319(3)(a)give the Environment Court jurisdiction to determine the applicant's 5questions of law, with ordering a change or even revocation of unworkable public-endangering 1080-related resource consents?[32] It is obvious this is, in fact two questions, and the various sub-points which then follow do not assist in clarifying what the issues of law raised by Te Whare are.16 Case Stated Decision, above n 5 at [20].17 At [21].18 At [22].19 At [24]-[25].20 At [25].However, the gist of Te Whare's appeal appears to be that it was unreasonable,illogical and in breach of natural justice for the Judge to seek to avoid determination of these questions by the High Court.[33] The power of the Environment Court to state a case to the High Court is set out in s 287 of the RMA:287 Reference of questions of law to High Court(1) The Environment Court may, in any proceedings before it, state a case for the opinion of the High Court on any question of law that arises in those proceedings; and for that purpose may either conclude the proceedings subject to that opinion, or adjourn them until after that opinion has been given.(2) The case shall be settled and signed by an Environment Judge and sent to the Registrar at the appropriate registry of the High Court.(3) The settling and signing of the case by an Environment Judge is deemed to be the statement of the case by the Environment Court.(4) The Environment Court may, in relation to any case stated under this section, after giving notice to the parties of its intention to do so, request the Registrar at the appropriate registry of the High Court for a fixture for the determination of the case.(5) For the purposes of this section, the appropriate registry of the High Court is the office of the High Court nearest to the place where the appeal, inquiry, or other proceedings was or is being conducted.[34] The appellant has failed to understand that s 287 is a procedural rather than substantive provision. It allows a question of law which arises in the case to bedetermined in the High Court where it is considered, in the Judge's discretion, moreappropriate to do so. This can either be before the substantive hearing on the factual matters proceeds, or after resolution of the factual issues, with the EnvironmentCourt's decision subject to the outcome of the legal ruling.[35] It appears that this provision has not been used by the Environment Court to date, but that is unsurprising. As was said in Re Barrhill Chertsey Irrigation Ltd,21there would need to be a proper reason for the Environment Court to refer matters directly to the High Court pursuant to s 287, without first expressing its conclusion on the applications before it. While the Environment Court recognises a concurrent21 Re Barrhill Chertsey Irrigation Ltd EnvC C070/08, 16 June 2008.ability for the High Court to determine legal issues, there is "a reluctance" for theEnvironment Court to refer the proceedings without hearing the case and expressing a view, at least on the factual circumstances and on the grounds of the application.22[36] One could envisage a case for utilising s 287 where the legal issue is notwithin the Environment Court's usual area of expertise (for example, where a technical issue of property law must be determined before the resource management issues can be resolved). Similarly it could be used to decide a preliminary issue of law, on which the outcome turns, and which would be taken on appeal to the High Court in any event. However, where the questions of law involve concurrent factual determinations, it will almost always be more appropriate to hear them in the Environment Court first and then to appeal any questions of law arising to the High Court in light of the Environment Court's factual findings.[37] In the present case, the appeal is against the exercise of the Judge's discretionas to whether it is appropriate to refer a question of law to the High Court. Where an appeal focuses upon the way in which judicial discretion has been exercised, the appellant must show the decision-maker: 23(a) made an error of law or principle;(b) failed to consider all relevant matters or took into account irrelevant matters; or(c) reached a decision that was plainly wrong.[38] Given that the decision on whether to use s 287 has no impact on whether the legal issues can be addressed, but simply when and in what form they are to be addressed, the only relevant consideration is whether it would be advantageous or desirable to do so. As was said in Wallace v Waipa District Council:2422 At [14].23 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32], citing May v May (1982) 1 NZFLR 165 (CA).24 Wallace v Waipa District Council [2014] NZEnvC 24 at [32].There are general appeal rights from decisions of the Environment Court to the High Court on questions of law, with the result that stating a case to the High Court by the Environment Court during proceedings is an unusual one and a power used only where the Court is of the opinion that such a course of action is desirable.(citations omitted)[39] In the Waipa case, the Court declined to refer the matter to the High Court under s 287 of the RMA, saying:25There is no question of law that has been clearly enough articulated that would justify the need for such a course of action at this stage of theproceedings. if the applications succeed then Jezma can appeal thatdecision if it believes that the Court has made an error of law.[40] In the present case I can see nothing to impeach the Judge's decision todecline to use s 287 for much the same reasons as in the Waipa case.[41] First, Te Whare's questions of law combine disputed issues of fact withquestions of law which make at least some of them unsuited, in their present form, for referral by way of case stated.[42] Second, the question of law must "arise in the proceedings". TheEnvironment Court correctly held the first three questions of law were not questions which arose in the application for declarations, which were concerned with alleged breaches of the consents. If Te Whare had wanted to amend its application to incorporate declarations on whether ss 95-95F RMA had been contravened, those could not be the subject of an Environment Court proceeding but would have to commence in the High Court. The Environment Court had no jurisdiction to determine those legal issues and therefore no jurisdiction under s 287 to refer them. The decision of the Environment Court did not deny Te Whare's rights to raise theseissues, but simply directed them to do so in the Court with jurisdiction to do so.[43] Finally, the Environment Court quite properly considered that, to the extent the questions did cover areas of law for determination in the proceedings, those areas were within the Environment Court's expertise to determine and Te Whare retained its rights of appeal if the Environment Court's determinations in law were incorrect.25 At [33]-[34].[44] In short, the Court's decision was entirely open to it in the exercise of its discretion. The Court correctly understood and applied the legal test in s 287. It has not failed to take into account any relevant matter nor considered any irrelevant matters and there is no error of law in reaching its conclusion.Second question of law in notice of appeal[45] The appellant's notice of appeal also contains a second question of law. Itreads as follows: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 the reason that proof of their frivolous, vexatious and abuse-of process character had been provided, andDoes 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?[46] I interpret this "second question of law" (although, again, it contains twoquestions) as suggesting that the Environment Court Judge should have struck out the applications by the s 274 parties to strike out the plaintiff's application and/or for security for costs because the s 274 parties had not proved the plaintiff's case wasclearly untenable.[47] This can be addressed very simply. Leaving aside whether these are, in fact, questions of law, the decision of Judge Newhook declining to state a case to the High Court was neither asked to address this issue, nor did it. There simply was no application to this effect before the Court. I therefore cannot find the Judge erred in law by not making such a decision, and this issue has no bearing whatsoever on the decision not to state a case to the High Court.[48] The appeal against the Environment Court's refusal to state a case to the HighCourt on questions of law is dismissed.Security for Costs Appeal[49] This appeal is the one of greatest concern to Te Whare. In relation to this appeal Te Whare says the following questions of law arise:Main Question of Law on Appeal to High Court:Does the public interest in upholding the RMA's safeguards (appealprovisions S.299, enforcement order SS.314(e), 316, etc.) against misuse of extremely hazardous ecotoxic poison outweigh the pecuniary security-of- costs interests of government-dependent/controlled poisoning operators (the defendants)?Sub Questions of Law on Appeal to High Court:1. Should the provision of the RMA (appeal provisions S299, enforcement order SS.314(e), 316 etc.) be effectively invalidated by granting security-for-costs on reliance on wrong facts and by undermining current Court-of-Appeal case laws?2. Should the lower Environment Court appealed against effectively have been allowed to decide an appeal to the High Court contrary to appeal provision per S.299?[50] These questions, and the "argumentation" that follows, essentially say that the Court's decision has, in practical terms, struck out Te Whare's application, denying it access to justice, when its case is not "clearly untenable".[51] However, again, I record that this is an appeal under s 299 of the RMA, and not a general right of appeal. Moreover, it is an appeal against the exercise of a discretion and again can only succeed if it can be shown that the Judge:26(a) made an error of law or principle; or(b) failed to consider all relevant matters or took into account relevant matters; or(c) reached a decision that was plainly wrong.[52] Judge Kirkpatrick's decision27 begins with a full and careful description of the relevant law on ordering payment of security for costs, including the principlesand criteria against which the Court's discretion might be exercised as summarised in the head note of the judgment in Bell-Booth Group Limited v Attorney-General.2826 Kacem v Bashir, above n 23, at [32].27 Security for Costs Decision, above n 7, at [19]-[28].28 Bell-Booth Ltd v Attorney-General (1986) 1 PRNZ 457 (HC).[53] The Judge established that the threshold for ordering security for costs wasmet, saying "there is credible evidence that if the s 274 parties are successful in their opposition to the application for declarations, the assets of Te Whare will beinsufficient and it will be unable to pay their Court costs".29 That is not challenged on appeal.[54] The Judge then took careful note of both Te Whare's and the s 274 parties'positions. In particular, he considered Te Whare's submissions that awarding security for costs would have a similar effect to a strike out and, because the applications for declarations had merit and were advanced in the public interest, an award of security for costs was not warranted.[55] However, he also correctly observed that:30While I accept that there is an onus on the s 274 parties to show why security for costs should be ordered, I do not accept that they must show that Te Whare's case is clearly untenable the conceptual basis of security forcosts is quite different to that in relation to a strike-out application.He acknowledged that while an order requiring security:31may have the effect of forcing an impecunious plaintiff or applicant todiscontinue its case, that is not its purpose however, it is a relevant consideration in the exercise of the discretion[56] The Judge acknowledged that Te Whare had "made its application in good faith".32 However, he also took into account the nature of the proceedings and the way they had been conducted, saying that Te Whare had been warned by the Court that these made it more likely that there would be a costs award against Te Whare.33[57] Regrettably, even the presentation of Te Whare's case in this Court has reflected the concerns raised by the Environment Court. The submissions made by Te Whare lacked clarity and focus, confused legal and factual issues, introduced irrelevant legal considerations and were expressed in pejorative terms.29 At [35].30 At [33].31 At [33].32 At [36].33 At [37].[58] While the Courts afford considerable latitude to parties which are not represented by counsel, the convoluted expression of the various documents filed in support of the appeal reflects the concerns expressed by the four different Environment Court Judges who have been involved in these proceedings to date. Furthermore, Te Whare has failed to heed the warnings, or take up the suggestions, that have been made to it by the Court. For example, it has been suggested that Te Whare run a selection of "exemplar" declarations in the first instance, which would have limited its risk of a costs award and have led to a more favourable outcome on the issue of security for costs, but it has steadfastly resisted such guidance.34 If Te Whare is unable to progress its application, it is largely the architect of its own fate.[59] The appeal against the Environment Court's decision to award security forcosts in the total sum of $25,000 is dismissed.The Costs Decision Appeal[60] The last appeal is in relation to the decision to award costs against Te Whare in favour of ACP following the applications against ACP being struck out.[61] Again, I simply note that an award of costs involves the exercise of a discretion, and this Court will only intervene if the Judge was acting on a wrong principle or failed to take into account some relevant matter, or took into account some irrelevant matter, or was plainly wrong.35[62] It is worth reiterating that, in ACP's case, this was not a simple matter of theapplications against being withdrawn by Te Whare at the first possible opportunity, and when ACP had incurred minimal costs.[63] Instead the application by ACP to be struck out was opposed by Te Whare'sdocument dated 23 March 2012 and yet, in the same document, it agreed to an order for strike out to be made in relation to ACP and ostensibly supported by an affidavit34 See for example Case Stated Decision, above n 5, at [27] and Security for Costs Decision, above n 7, at [39].35 Kacem v Bashir, above n 23, at [32].opposing the strike out, but ending with the words "I agree the Animal Control Products application should be struck out". This led to some confusion, requiring aMinute to be issued seeking clarification of Te Whare's position. On 18 April 2013,as a result of further confusion, the Court again recorded for clarity that, in its decision of 16 April 2013, it had struck out all of the declarations sought in respect of all the 16 parties, including ACP.[64] The Environment Court costs decision,36 after setting out the basis on which ACP sought indemnity costs and why Te Whare opposed it, recited, in conventionalterms, the legal principles applying to the exercise of the Court's discretion to awardcosts.37 These included that there was no general rule that costs should follow the event and that costs are not awarded as a penalty, but in the interests of"compensation where that is just".38[65] The Court noted there was no immunity from costs for public interest groups and this was to ensure that they were accountable for the way they conduct their case. The Court then traversed the factors which might result in the award of higher than usual costs.[66] Factors which the Court thought weighed in favour of a sizable costs award were that:In relation to ACP the proceedings disclosed no reasonable or relevant case. Three of the declarations sought against ACP were outside the jurisdiction of the Environment Court and in respect of the fourth declaration there was no evidential basis for the declaration to be made.The Court also referred to the breadth and complexity of the proceedings.[67] In addressing the matters raised by Te Whare in opposition, the Court noted there was no evidence that Te Whare was in receipt of a grant of legal aid, under the Legal Services Act 2011, so that was not a relevant consideration. The fact that another party had not applied for costs against Te Whare was not relevant to the36 Costs Decision, above n 9.37 At [14]-[17].38 At [14], citing Foodstuffs (Otago Southland) Properties Ltd v Dunedin City Council (1996) 2 ELRNZ 138 (PT).determination, and the financial circumstances of the applicant for costs was also irrelevant. The Court acknowledged that the fact the matter was of considerable public interest, if the relevant resource consent conditions had not been complied with, could not be a factor relevant to ACP because of the concession there was no case against ACP. The Court again noted its concern about the way Te Whare haddrafted and conducted its proceeding and its failure to take heed of the Court's advice, concluding that it was "in no doubt Te Whare's approach has caused ACP toincur unnecessary costs".[68] The Court then decided that, in light of Te Whare's conduct of the caseagainst ACP, it was appropriate to award higher than usual costs and awarded costsof $10,000, or approximately 60 per cent of ACP's actual costs.39[69] Te Whare appeals that decision, allegedly on the following issue of law:Does S.285 RMA (awarding of costs as Environment Court considers reasonable) exclude objective reasonability, including the provisions of S.279 (strike-out of costs application if Judge considers it frivolous or vexatious or otherwise an abuse of process)?[70] Te Whare reiterated the points it made in the Environment Court being, in summary, that:(a) Te Whare was acting in the public interest in filing the case and any mistakes made were simply because of the lack of finance to employ a lawyer;(b) The case against ACP was withdrawn at an early stage;(c) The University of Otago did not make an application for costs when Te Whare withdrew;(d) ACP has considerable funding and income whereas Te Whare has been sold and is relying on donations.39 At [31].[71] In none of these can I find an error of law. The Court acknowledged the general public interest there would be in running a case designed to ensure that resource consent conditions were complied with.40 However, it inevitably concluded that when, as Te Whare had acknowledged, there was no reasonable cause of action against ACP, that factor did not carry weight.41 While the case was withdrawn against ACP, the path to that point had not been straight forward and ACP had incurred considerable cost to that stage. The Court was correct in determining that the fact that another party had not claimed costs was irrelevant;42 as was the relative financial positions of the parties.43[72] In addition to the above points, Te Whare referred to receiving funding of$5,000 from the Environmental Legal Assistance Fund and described that as "legal aid". However, the restrictions in the Legal Services Act 2011 on a costs award donot apply to grants made up by the Environmental Legal Assistance fund. Furthermore, as was said in Queenstown and District Historical Society v Queenstown Lakes District Council:44A party's claim that its case is representative of the public interest does notgive it immunity from liability for the costs of other parties, nor does receiptof a grant from the Environmental Legal Assistance fund. Limits of a party'smeans and ability to pay are not taken into account.(citations omitted)[73] Te Whare also questioned whether the Judge had sufficient evidence of the costs incurred on which to make her decision, citing Westland District Council v Hunt.45 In that case the applicant for costs was criticised for failing to attach invoices as evidence of the costs incurred and a costs award was denied.[74] However, in the present case, invoices of legal expenses were provided on behalf of ACP and the Court did have adequate information on which to make an award of costs.40 At [24].41 At [20] and [24].42 At [22].43 At [23].44 Queenstown and District Historical Society Inc v Queenstown Lakes District Council EnvC C023/05, 16 February 2005 at [7].45 Westland District Council v Hunt [2010] NZEnvC 352 at [20].[75] I conclude therefore that the Court exercised its discretion on an adequate factual basis and there was no error in law which would invalidate the decision to award $10,000 in costs.[76] The appeal against the costs decision is therefore dismissed.Outcome[77] Te Whare has been unsuccessful on all three appeals. In each case, no error of law has been identified and in each case the decision reached was well within thescope of the Judge's discretion.[78] Costs are reserved, although applications are not encouraged.Solicitors:Chapman Tripp, Wellington