Environment Court: COVID-19 Past Alert Level 3 Protocol
Principal Environment Judge Laurie Newhook
23 April 2020
1. New Zealand shortly reduces to COVID-19 Level 3 from midnight next Monday 27 April. The new level may last for 2 or more weeks and carries strong recommendations for people to continue to work from home, but where it is necessary to gather, to limit numbers and undertake stringent social distancing and sanitising of surfaces and equipment. These new Directions and Advisory Notes are designed to meet the new Government requirements.
2. The Environment Court is not categorised by the Chief Justice and Heads of Bench as a Category 1 priority service court for resource allocation but will be equipped to process time-critical and other priority cases as described below, mainly electronically.
3. All cases listed for hearing up to the end of May 2020 were previously adjourned and timetables for preparation for those hearings suspended.
4. The Principal Environment Judge has worked with the Judges in prioritising cases in the manner described in the Protocol. The Judges are now moving to recommence case management in a way that generally does not trigger a hearing before the end of May 2020, but with exceptions. Hearings will be scheduled at pre-hearing conferences now getting under way, for several weeks in June, July and August.
5. Time-critical urgent cases such as applications for interim enforcement orders and applications for stays of abatement notices involving serious issues of safety are currently being scheduled for May, where the Presiding Judge will work with the parties to establish fair electronic remote means of conferencing and hearing the case, or a hearing in Court involving limited numbers of participants, strict social distancing and sanitary cleansing. Alternatively, they might be agreed to be heard “on the (electronic) papers”.
6. Next in order of priority are cases involving infrastructure or other public good that might be considered urgent in the public interest that are logged with the PEJ for prioritisation. The Judges presiding on these will be working by remote means with the parties to timetable them for prompt advancement. Urgency and prioritisation of the Court’s resources could see Judge-led issues conferences be held in place of mediations in some of these cases, although independently-facilitated conferences of expert witnesses will remain important.
7. Increasingly under Level 3, cases lacking the above qualities of priority may be the subject of directions to advance them, including the holding of telephone or audio-visual conferences. Prioritisation of these will generally be undertaken by the Presiding Judges in consultation with the PEJ as necessary. Mediation resources are finite and unevenly distributed around the country, so in these cases, mediation is unlikely to be a priority if resources are stretched at the time. Instead, at a pre-hearing conference the Presiding Judge will require parties to identify the key issues capable of influencing outcome, and directions will be made for expert conferencing (if necessary) and a timetable for preparation for hearing.
8. Mediations and expert conferencing have generally been adjourned where scheduled to occur before the end of May 2020, while three groups of cases were chosen for pilot mediation activity by remote means. Presiding Judges, mediating Commissioners and the Principal Environment Judge, prepared draft directions to parties in such cases. Where the cases involved many topics and many parties, they were broken down by topic to enable progress by smaller more manageable groups of participants. The Commissioners worked with the parties concerning methodologies and electronic platforms, and such mediations as were concluded proceeded very successfully in a focussed and time-efficient way.
9. Mediations and expert conferencing may now recommence within the limitations in paragraphs 6 and 7 above. Detailed preparation by the mediators and participants will be important, particularly as to the processes for fair means of electronic ways of working. Time limits are likely to be set by the Presiding Judge. At times when the Commissioner resources are stretched, parties are asked to give thought to holding privately-run mediations, remembering that good preparation and fairness to all are important. Proposals for these should be the subject of Judge-led conferences and directions.
10. It is reiterated that the Principal Judge has issued a blanket waiver suspending the requirement to file paper originals and copies in court meantime.
11. It is also reiterated that any difficulties with paying lodgement or other fees will be considered by the Registrar exercising his powers of waiver under s 281A RMA.
12. Staffing of registries will be very limited during Level 3, with strong focus being placed on social distancing. Some staff are in the vulnerable category and will continue to work from home as will others with different needs and pressures. Contact can be made with the Court by telephone or email to the case, hearing, or mediation manager handling any file, or if in doubt, to the Deputy Registrar in the relevant registry noted below.
13. In case any party does not have the ability to file by email, postal mail will be periodically checked. However, because of hygiene requirements there may be a delay in processing documents received by mail. No documents will be received for filing in person at registries.
14. While parties without access to electronic means of communication may post material to the Court, all others are directed to employ electronic means.
15. Should any hearings or ADR events occur in open Court during Level 3, there will be strict social distancing practices and a sanitary cleansing regime of surfaces and equipment. Staff and members of the Court will be provided with personal protective equipment (PPE). Counsel and other participants may use their own PPE. Documents cannot be handed up or exchanged on paper among parties, but must instead be lodged and exchanged by email, preferably in advance of the hearing.
Contact details for Deputy Registrars
Auckland
Gemma Carlyon
027 446 7193
gemma.carlyon@justice.govt.nz
Wellington
Rachell Staunton
027 256 9494
rachell.staunton@justice.govt.nz
Christchurch
Michael Tinkler
027 280 8135
michael.tinkler@justice.govt.nz