Court of Appeal Judgments of Public Interest
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Case number
[2024] NZCA 51
Date of Judgment
11 March 2024
Summary
Criminal law - Resource Management Act 1991 - definition of wetland - definition of natural wetland - definition of significant natural wetland - conviction appeal
Appeals allowed (both appellants) in part. Convictions in respect of charges 2, 4-8, 10, 11, and 14-34 are set aside and judgments of acquittal entered.
Appeals dismissed (both appellants) in respect of remaining charges.
Submissions sought on appropriate substitution to sentences/orders and costs.
The appellants were found guilty by Judge Dwyer in the District Court of 35 offences under the Resource Management Act 1991, relating, substantially, to activities within four areas on a property owned by one of the appellants alleged to be "wetlands". An appeal to the High Court was unsuccessful.
Whether the conviction appeal should be granted? Held: Yes, in part.
The parties agree that the charges relating to Area 4 cannot be proven beyond a reasonable doubt. The convictions on charges 4, 16, 32, and 34 are set aside and judgments of acquittal are entered.
The evidence has not established, beyond a reasonable doubt, the existence of fauna adapted to wet conditions in Areas 1, 3A, 3B, or 3C. This means that the Council has failed to establish beyond a reasonable doubt that those Areas were "wetlands", or "significant natural wetlands". Alternatively, the method used to delineate the alleged wetlands was not appropriate in the context of a criminal prosecution and the "damp gully head" exception was not disproven. The convictions on charges 6-7, 15, 17, 19-20, and 24-30 (relating to alleged natural wetlands in those areas), charges 2, 10-11, 18, and 21-23 (relating to alleged significant natural wetlands in those areas), and charge 8 (insofar as it relates to Area 1) are set aside and judgments of acquittal are entered.
In relation to one section (Plot 15) of Area 2, the evidence is not sufficient to establish the presence of animals adapted to wet conditions. In relation to the remainder of Area 2 (Plot 8), the evidence does establish the presence of animals adapted to wet conditions. However, the stock watering exception is established, meaning that Area 2 does not meet the definition of natural wetland. The convictions on charges 5, 8, 14, 31, and 3 3 are set aside and judgments of acquittal are entered.
The only remaining charges that survive the appeal are charges 1 and 9 (relating to Area 3C), charges 3, 12, and 13 (relating to disposition of soils/sediment in the bed of a river or where it could enter water), and charge 35 (relating to contravention of an Environment Court enforcement order). None of these charges depended on the establishment beyond a reasonable doubt of wetlands, natural wetlands, or significant natural wetlands.
The Court sought submissions from the parties on the appropriate sentences to impose on each appellant, in light of the outcome of the appeal, and also on costs.
Appeals allowed (both appellants) in part. Convictions in respect of charges 2, 4-8, 10, 11, and 14-34 are set aside and judgments of acquittal entered.
Appeals dismissed (both appellants) in respect of remaining charges.
Submissions sought on appropriate substitution to sentences/orders and costs.
The appellants were found guilty by Judge Dwyer in the District Court of 35 offences under the Resource Management Act 1991, relating, substantially, to activities within four areas on a property owned by one of the appellants alleged to be "wetlands". An appeal to the High Court was unsuccessful.
Whether the conviction appeal should be granted? Held: Yes, in part.
The parties agree that the charges relating to Area 4 cannot be proven beyond a reasonable doubt. The convictions on charges 4, 16, 32, and 34 are set aside and judgments of acquittal are entered.
The evidence has not established, beyond a reasonable doubt, the existence of fauna adapted to wet conditions in Areas 1, 3A, 3B, or 3C. This means that the Council has failed to establish beyond a reasonable doubt that those Areas were "wetlands", or "significant natural wetlands". Alternatively, the method used to delineate the alleged wetlands was not appropriate in the context of a criminal prosecution and the "damp gully head" exception was not disproven. The convictions on charges 6-7, 15, 17, 19-20, and 24-30 (relating to alleged natural wetlands in those areas), charges 2, 10-11, 18, and 21-23 (relating to alleged significant natural wetlands in those areas), and charge 8 (insofar as it relates to Area 1) are set aside and judgments of acquittal are entered.
In relation to one section (Plot 15) of Area 2, the evidence is not sufficient to establish the presence of animals adapted to wet conditions. In relation to the remainder of Area 2 (Plot 8), the evidence does establish the presence of animals adapted to wet conditions. However, the stock watering exception is established, meaning that Area 2 does not meet the definition of natural wetland. The convictions on charges 5, 8, 14, 31, and 3 3 are set aside and judgments of acquittal are entered.
The only remaining charges that survive the appeal are charges 1 and 9 (relating to Area 3C), charges 3, 12, and 13 (relating to disposition of soils/sediment in the bed of a river or where it could enter water), and charge 35 (relating to contravention of an Environment Court enforcement order). None of these charges depended on the establishment beyond a reasonable doubt of wetlands, natural wetlands, or significant natural wetlands.
The Court sought submissions from the parties on the appropriate sentences to impose on each appellant, in light of the outcome of the appeal, and also on costs.
Case name
Case number
[2023] NZCA 589
Summary
The appeals are dismissed.
The appellants seek to prevent the broadcast of a programme alleging serious sexual abuse by Cardinal John Dew and others. The abuse is said to have occurred over a 12-day period in 1997 at St Joseph's Orphanage in Upper Hutt. Cardinal Dew was at that time a priest at St Joseph's Parish; Mrs R was responsible for the boys' dormitory at the Orphanage; and Sister H lived and worked in Palmerston North (though she lived at St Joseph's in 1976 and again in 1979). The complainants, Mr Carvell and Ms Carvell, wish to have the allegations, which are the subject of an ongoing police investigation, aired in public by media platforms associated with the respondent, Discovery NZ Ltd. To this end they have been in communication with two investigative journalists at Newshub, who have investigated their complaints for almost two months. The complainants also successfully applied to the District Court under s 203(3)(b) of the Criminal Procedure Act 2011 to waive their automatic right to name suppression. Discovery has signalled that should the appellants sue in defamation, it will rely on the defences of truth and responsible communication on a matter of public interest. The appellants were unsuccessful in applications for an injunction to restrain the broadcast in the High Court.
Defamation -interim injunction -human rights -privacy -practice and procedure -
suppression order. Should the appeals be allowed?
Cardinal Dew's appeal
Should publication be restrained on the basis that it is defamatory?
It was for the appellant to establish that there was no reasonable possibility of its signalled defences succeeding. He had not done so. In terms of the defence of truth, the substance of the allegations had been put before the Court and, should the proceedings go to trial, it would be for the trier of fact to determine whether the complainants' allegations or Cardinal Dew's denials should be accepted. This was a factual question that could not be resolved at this stage. Nor, in terms of the defence of responsible communication on a matter of public interest, could the appellant establish there was no reasonable possibility of success: the subject matter was of public interest, the allegations are extremely serious and are of considerable importance. There was no urgency and it was not possible to make any findings about reliability, the tone of the programme or its balance. Those were issues that would need to be assessed in deciding at the trial whether the broadcast was responsible.
Was the District Court judgment dispositive?
The order made by the District Court judgment, issued in respect of the complainants' application to lift their automatic statutory name suppression, was not determinative. The District Court did not have jurisdiction to make an order prohibiting publication of the proceedings under s 205(1) of the Criminal Procedure Act because no "proceeding in respect of an offence", commenced under s 15( 1) by filing a charging document in the District Court, had been commenced. The Judge also knew that the application was made to enable the complainants to "go public". Properly construed, the order prohibited publication of the fact there was a judgment repeating the evidence given by the complainants in that proceeding.
Should publication be restrained on the basis it would interfere with the administration of justice?
Though publication of the allegations would likely result in intense and lasting publicity, that did not justify prior restraint. The jury will be required to put pre-trial publicity out of mind, to avoid prejudice and to decide the case based only on what they have heard in the courtroom. The system is predicated on an assumption that juries comply with the instructions they are given. It cannot be assumed that a fair jury trial could not take place; to do so would call into question that assumption. The Court was not satisfied that suppression orders would be made if charges were brought and, in any event, it was not possible to assess the probability that charges would be laid. In those circumstances, to prevent publication would be to guard against an eventuality that might never occur.
Should publication be restrained on the basis it amounts to an invasion of privacy?
Cardinal Dew could not claim a reasonable expectation of privacy in respect of the allegations, because he denied that they occurred. Moreover, if the allegations were true, any privacy claim of Cardinal Dew must yield to the complainants' right to speak about serious wrongdoing which occurred to them. Nor would the programme's reference to an ongoing police investigation amount to an interference with a reasonable expectation of privacy: the programme will focus on Discovery's investigation, not that of the Police. The programme will not contain an account of suspicions and preliminary conclusions formed by an organ of the state.
Mrs R and Sister H's appeals
Should publication be restrained on the basis that it is defamatory?
There were two imputations said to arise from the programme: first, that either Mrs R or Sister H were the unnamed sister which may be mentioned as having participated in the alleged abuse; and secondly, that Mrs R, as the person who oversaw the boys' dormitory of the Orphanage at the relevant time, must have known about what is said to have occurred, and failed to put a stop to it.
Neither of the appellants would be identified, and therefore defamed, by the first imputation. The programme will not allege that the person responsible for the abuse resided at the Orphanage (indeed, it is clear that Sister H did not reside there at the relevant time, and she was the person originally named by Mr Carvell). Provided it did not do so, there would be no room for any inference that Mrs R was the unnamed sister. In any event, evidence about the layout of the dormitory fell well short of the kind of extrinsic evidence that would be necessary to establish that Mrs R was the unnamed sister. As for Sister H, who will not be named in the programme, unless the programme includes details which might reasonably lead people acquainted with her to believe she is the unnamed sister referred to, all persons familiar with her history could do would be to speculate. She was simply one of many members of the Sisters of Mercy across the country who did not live at St Joseph's at the relevant time. Equally, though interviewees had been asked about her and might therefore speculate she was the unnamed sister, that is all it would be.
As for the second imputation, it was possible that viewers with knowledge of Mrs R's role at the Orphanage would infer that she must have been aware of the alleged abuse, if the allegations were sufficiently particularised in the story. She had provided evidence that the abuse described could not have occurred without her being aware of it, which is the kind of evidence that Discovery has indicated it would include in the programme. Should it do so, identifying Mrs R would not involve impermissible speculation.
It was therefore necessary to consider Discovery's defences to a claim in defamation by Mrs R. Both defences had reasonable prospects. In terms of the defence of truth, the allegations which potentially implicate Mrs R are substantially derived from what is alleged against Cardinal Dew. If Discovery succeeds in establishing the truth of its allegations against him, it will necessarily have gone a long way to establishing the truth of the imputation against Mrs R. The additional facts it would need to successfully claim truth against her would be that she knew of Cardinal Dew's conduct and did nothing to prevent it. In relation to those additional facts Discovery could rely on her own evidence, in which she effectively claims that if Cardinal Dew had acted as Mr Carvell alleges, she would have known. In terms of the defence of responsible communication on a matter of public interest, the story was in the public interest, and, in assessing whether the communication is responsible an additional consideration would be that the imputation has not been put to Mrs R. But that additional factor did not mean the defence had no reasonable prospect of success.
The appellants seek to prevent the broadcast of a programme alleging serious sexual abuse by Cardinal John Dew and others. The abuse is said to have occurred over a 12-day period in 1997 at St Joseph's Orphanage in Upper Hutt. Cardinal Dew was at that time a priest at St Joseph's Parish; Mrs R was responsible for the boys' dormitory at the Orphanage; and Sister H lived and worked in Palmerston North (though she lived at St Joseph's in 1976 and again in 1979). The complainants, Mr Carvell and Ms Carvell, wish to have the allegations, which are the subject of an ongoing police investigation, aired in public by media platforms associated with the respondent, Discovery NZ Ltd. To this end they have been in communication with two investigative journalists at Newshub, who have investigated their complaints for almost two months. The complainants also successfully applied to the District Court under s 203(3)(b) of the Criminal Procedure Act 2011 to waive their automatic right to name suppression. Discovery has signalled that should the appellants sue in defamation, it will rely on the defences of truth and responsible communication on a matter of public interest. The appellants were unsuccessful in applications for an injunction to restrain the broadcast in the High Court.
Defamation -interim injunction -human rights -privacy -practice and procedure -
suppression order. Should the appeals be allowed?
Cardinal Dew's appeal
Should publication be restrained on the basis that it is defamatory?
It was for the appellant to establish that there was no reasonable possibility of its signalled defences succeeding. He had not done so. In terms of the defence of truth, the substance of the allegations had been put before the Court and, should the proceedings go to trial, it would be for the trier of fact to determine whether the complainants' allegations or Cardinal Dew's denials should be accepted. This was a factual question that could not be resolved at this stage. Nor, in terms of the defence of responsible communication on a matter of public interest, could the appellant establish there was no reasonable possibility of success: the subject matter was of public interest, the allegations are extremely serious and are of considerable importance. There was no urgency and it was not possible to make any findings about reliability, the tone of the programme or its balance. Those were issues that would need to be assessed in deciding at the trial whether the broadcast was responsible.
Was the District Court judgment dispositive?
The order made by the District Court judgment, issued in respect of the complainants' application to lift their automatic statutory name suppression, was not determinative. The District Court did not have jurisdiction to make an order prohibiting publication of the proceedings under s 205(1) of the Criminal Procedure Act because no "proceeding in respect of an offence", commenced under s 15( 1) by filing a charging document in the District Court, had been commenced. The Judge also knew that the application was made to enable the complainants to "go public". Properly construed, the order prohibited publication of the fact there was a judgment repeating the evidence given by the complainants in that proceeding.
Should publication be restrained on the basis it would interfere with the administration of justice?
Though publication of the allegations would likely result in intense and lasting publicity, that did not justify prior restraint. The jury will be required to put pre-trial publicity out of mind, to avoid prejudice and to decide the case based only on what they have heard in the courtroom. The system is predicated on an assumption that juries comply with the instructions they are given. It cannot be assumed that a fair jury trial could not take place; to do so would call into question that assumption. The Court was not satisfied that suppression orders would be made if charges were brought and, in any event, it was not possible to assess the probability that charges would be laid. In those circumstances, to prevent publication would be to guard against an eventuality that might never occur.
Should publication be restrained on the basis it amounts to an invasion of privacy?
Cardinal Dew could not claim a reasonable expectation of privacy in respect of the allegations, because he denied that they occurred. Moreover, if the allegations were true, any privacy claim of Cardinal Dew must yield to the complainants' right to speak about serious wrongdoing which occurred to them. Nor would the programme's reference to an ongoing police investigation amount to an interference with a reasonable expectation of privacy: the programme will focus on Discovery's investigation, not that of the Police. The programme will not contain an account of suspicions and preliminary conclusions formed by an organ of the state.
Mrs R and Sister H's appeals
Should publication be restrained on the basis that it is defamatory?
There were two imputations said to arise from the programme: first, that either Mrs R or Sister H were the unnamed sister which may be mentioned as having participated in the alleged abuse; and secondly, that Mrs R, as the person who oversaw the boys' dormitory of the Orphanage at the relevant time, must have known about what is said to have occurred, and failed to put a stop to it.
Neither of the appellants would be identified, and therefore defamed, by the first imputation. The programme will not allege that the person responsible for the abuse resided at the Orphanage (indeed, it is clear that Sister H did not reside there at the relevant time, and she was the person originally named by Mr Carvell). Provided it did not do so, there would be no room for any inference that Mrs R was the unnamed sister. In any event, evidence about the layout of the dormitory fell well short of the kind of extrinsic evidence that would be necessary to establish that Mrs R was the unnamed sister. As for Sister H, who will not be named in the programme, unless the programme includes details which might reasonably lead people acquainted with her to believe she is the unnamed sister referred to, all persons familiar with her history could do would be to speculate. She was simply one of many members of the Sisters of Mercy across the country who did not live at St Joseph's at the relevant time. Equally, though interviewees had been asked about her and might therefore speculate she was the unnamed sister, that is all it would be.
As for the second imputation, it was possible that viewers with knowledge of Mrs R's role at the Orphanage would infer that she must have been aware of the alleged abuse, if the allegations were sufficiently particularised in the story. She had provided evidence that the abuse described could not have occurred without her being aware of it, which is the kind of evidence that Discovery has indicated it would include in the programme. Should it do so, identifying Mrs R would not involve impermissible speculation.
It was therefore necessary to consider Discovery's defences to a claim in defamation by Mrs R. Both defences had reasonable prospects. In terms of the defence of truth, the allegations which potentially implicate Mrs R are substantially derived from what is alleged against Cardinal Dew. If Discovery succeeds in establishing the truth of its allegations against him, it will necessarily have gone a long way to establishing the truth of the imputation against Mrs R. The additional facts it would need to successfully claim truth against her would be that she knew of Cardinal Dew's conduct and did nothing to prevent it. In relation to those additional facts Discovery could rely on her own evidence, in which she effectively claims that if Cardinal Dew had acted as Mr Carvell alleges, she would have known. In terms of the defence of responsible communication on a matter of public interest, the story was in the public interest, and, in assessing whether the communication is responsible an additional consideration would be that the imputation has not been put to Mrs R. But that additional factor did not mean the defence had no reasonable prospect of success.
Media Release
- MR [2023] NZCA 589 (PDF, 226 KB)
Case name
Case number
[2024] NZCA 45
Date of Judgment
06 March 2024
Summary
Criminal law - criminal procedure - extension of time - sentence appeal - manifestly excessive - minimum period of imprisonment - murder - youth - fresh evidence
Case number
[2024] NZCA 19
Date of Judgment
06 March 2024
Summary
Employment - Minimum wage
Mount Cook Airline Ltd employs both part-time and full-time cabin crew. The part-time cabin crew work six days over a fortnightly pay period rather than the nine days worked by full-time cabin crew in exchange for a pro-rata (2/3) salary. E tū Inc, the union for the cabin crew, successfully challenged the pro-rata approach to calculating the salaries of part-time cabin crew in the Employment Court. The Employment Court held that cl 4(d) of the Minimum Wage Order 2021 (the Order) required that the part-time cabin crew be paid at least the full fortnightly minimum wage rate specified in the Order regardless of the number of hours actually worked per fortnight. Mount Cook appealed.
The appeal is allowed. The Employment Court erred in its interpretation of cl 4(d) of the Order as it applies to part-time salaried employees. Clause 4(d) specifies a minimum “rate” of wages, not an absolute monetary sum. The use of the word “rate” envisages a proportional relationship between two things, with one of those things commonly being a unit of time (as in this case). The fortnightly minimum wage rate is payable to an employee who works 80 hours over a fortnightly period and must be pro-rated for an employee who works less than that. The pro-rata interpretation of clause 4(d) is supported by the plain meaning of the clause, the statutory context, the statutory purpose, the legislative history and previous case law.
Any order as to costs that has been made in the Employment Court is set aside. Costs in the Employment Court are to be determined by that Court in light of this judgment.
The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.
Mount Cook Airline Ltd employs both part-time and full-time cabin crew. The part-time cabin crew work six days over a fortnightly pay period rather than the nine days worked by full-time cabin crew in exchange for a pro-rata (2/3) salary. E tū Inc, the union for the cabin crew, successfully challenged the pro-rata approach to calculating the salaries of part-time cabin crew in the Employment Court. The Employment Court held that cl 4(d) of the Minimum Wage Order 2021 (the Order) required that the part-time cabin crew be paid at least the full fortnightly minimum wage rate specified in the Order regardless of the number of hours actually worked per fortnight. Mount Cook appealed.
The appeal is allowed. The Employment Court erred in its interpretation of cl 4(d) of the Order as it applies to part-time salaried employees. Clause 4(d) specifies a minimum “rate” of wages, not an absolute monetary sum. The use of the word “rate” envisages a proportional relationship between two things, with one of those things commonly being a unit of time (as in this case). The fortnightly minimum wage rate is payable to an employee who works 80 hours over a fortnightly period and must be pro-rated for an employee who works less than that. The pro-rata interpretation of clause 4(d) is supported by the plain meaning of the clause, the statutory context, the statutory purpose, the legislative history and previous case law.
Any order as to costs that has been made in the Employment Court is set aside. Costs in the Employment Court are to be determined by that Court in light of this judgment.
The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.
Case name
Case number
[2024] NZCA 24
Date of Judgment
21 February 2024
Summary
Intellectual property — Copyright
Relationship property — Division of “balance of matrimonial property” — Personal property — Separate Property
An extension of time is granted for filing the notice of appeal.
The approved questions of law on appeal are answered as follows:
(1) Are the Copyrights “property” for the purposes of the Property (Relationships) Act 1976 (PRA)?
Yes.
(2) If the Copyrights are property, how should they be classified in terms of the PRA?
The Copyrights should be classified as relationship property.
(3) If the Copyrights are property, how should they be treated in terms of the PRA?
The Copyrights should remain in Ms Alalääkkölä’s exclusive legal ownership, with Mr Palmer receiving a compensatory adjustment from other relationship property to ensure an equal division of relationship property.
The assessment of an appropriate compensatory adjustment is remitted to the Family Court for determination.
The appellant must pay the respondent costs for a standard appeal on a band A basis, together with usual disbursements.
We certify for second counsel.
Ms Alalääkkölä is a successful artist. She created a number of artworks during the course of her 20-year marriage to Mr Palmer (the Artworks), many of which were sold to third parties.
It was common ground on appeal that the Artworks that remained in the possession of either party at the end of the relationship are relationship property in terms of the Property (Relationships) Act 1976 (PRA). Rather, the key issue on appeal was whether the copyrights in the Artworks (the Copyrights) are relationship property or Ms Alalääkkölä’s separate property. Further, if the Copyrights are relationship property, how they should be treated under the PRA regime? Ms Alalääkkölä sought to retain sole ownership of the Copyrights, with a compensatory adjustment being made to Mr Palmer from other relationship property. Mr Palmer, on the other hand, sought ownership of some of the Copyrights, so that he could commercialise them.
The Family Court found that the Copyrights were Ms Alalääkkölä’s separate property. On appeal, the High Court found that the Copyrights were relationship property, and remitted the issue of how they should be treated under the PRA to the Family Court. Ms Alalääkkölä appealed to this Court, having been granted leave to do so by the High Court on the approved questions of law.
Issue one: Are the Copyrights “property” for the purposes of the Property (Relationships) Act 1976 (PRA)?
Held: Yes.
The Copyrights fall within s 2(c) and (e) of the PRA definition of “property”.
Issue two: If the Copyrights are property, how should they be classified in terms of the PRA?
Held: The Copyrights should be classified as relationship property.
Ms Alalääkkölä submitted, in essence, that even if some of the bundle of rights and interests comprising the Copyrights were acquired during the relationship, the relevant bundle of rights and interests also includes (or is inextricably linked to) other property rights that pre-date or post-date the relationship. The inclusion of these takes the Copyrights outside the definition of relationship property and requires that they be categorised as separate property.
The Court rejected each of Ms Alalääkkölä’s arguments. First, the bundle of rights associated with the Copyrights was distinct from Ms Alalääkkölä’s personal skills and qualifications. Although those skills were used in the creation of the Artworks, they are distinct from the Copyrights that attach to the Artworks. Second, Ms Alalääkkölä’s art business, which was commenced prior to her relationship, is distinct from the Copyrights. Third, the fact that income may be generated, post-separation, from commercialisation of the Copyrights does not assist in determining the classification of the Copyrights under the PRA. Finally, there is nothing in either the Copyright Act 1994 or the PRA to suggest that Parliament intended to remove intellectual property from the reach of the PRA.
As the Copyrights were all acquired by Ms Alalääkkölä during the relationship (namely when each of the Artworks was created by her) they fell within the definition of relationship property in s 8(e) of the PRA (“all property acquired by either spouse or partner after their marriage, civil union, or de facto relationship began”).
Issue three: If the Copyrights are property, how should they be treated in terms of the PRA?
Held: The Copyrights should remain in Ms Alalääkkölä’s exclusive legal ownership, with Mr Palmer receiving a compensatory adjustment from other relationship property to ensure an equal division of relationship property.
Pursuant to s 21 of the Copyright Act, the author of a work is the first owner of copyright in that work. The Act therefore protects and promotes creativity by granting authors, artists, and other creators exclusive control over their original works. It is consistent with the overall policy objectives of the Act that Ms Alalääkkölä, as the creative force behind the Artworks, be able to control the commercialisation of the Copyrights. It would be inappropriate and unfair to require her to transfer ownership of some of the Copyrights to Mr Palmer, for a range of reasons. These include that: Ms Alalääkkölä’s art is highly personal to her, and she wishes to be able to control its commercialisation; any business Mr Palmer set up to commercialise some of the Copyrights would be in competition with and could undermine Ms Alalääkkölä own art business; Ms Alalääkkölä is a working artist whose reputation and personal brand (as well as her future livelihood) could be negatively impacted by Mr Palmer’s decisions in relation to any Copyrights he owned; Ms Alalääkkölä holds inalienable moral rights in respect of the Artworks, which could be a source of further ongoing conflict if some of the Copyrights were transferred to Mr Palmer.
Overall, the “clean break” principle under the PRA favours Ms Alalääkkölä retaining ownership and control of the Copyrights.
The Court therefore orders that Ms Alalääkkölä is to retain sole ownership of the Copyrights, with a compensatory adjustment to be made from other relationship property to ensure an overall equal division.
The Court remits the matter to the Family Court, to assess the quantum of any compensatory adjustment.
Relationship property — Division of “balance of matrimonial property” — Personal property — Separate Property
An extension of time is granted for filing the notice of appeal.
The approved questions of law on appeal are answered as follows:
(1) Are the Copyrights “property” for the purposes of the Property (Relationships) Act 1976 (PRA)?
Yes.
(2) If the Copyrights are property, how should they be classified in terms of the PRA?
The Copyrights should be classified as relationship property.
(3) If the Copyrights are property, how should they be treated in terms of the PRA?
The Copyrights should remain in Ms Alalääkkölä’s exclusive legal ownership, with Mr Palmer receiving a compensatory adjustment from other relationship property to ensure an equal division of relationship property.
The assessment of an appropriate compensatory adjustment is remitted to the Family Court for determination.
The appellant must pay the respondent costs for a standard appeal on a band A basis, together with usual disbursements.
We certify for second counsel.
Ms Alalääkkölä is a successful artist. She created a number of artworks during the course of her 20-year marriage to Mr Palmer (the Artworks), many of which were sold to third parties.
It was common ground on appeal that the Artworks that remained in the possession of either party at the end of the relationship are relationship property in terms of the Property (Relationships) Act 1976 (PRA). Rather, the key issue on appeal was whether the copyrights in the Artworks (the Copyrights) are relationship property or Ms Alalääkkölä’s separate property. Further, if the Copyrights are relationship property, how they should be treated under the PRA regime? Ms Alalääkkölä sought to retain sole ownership of the Copyrights, with a compensatory adjustment being made to Mr Palmer from other relationship property. Mr Palmer, on the other hand, sought ownership of some of the Copyrights, so that he could commercialise them.
The Family Court found that the Copyrights were Ms Alalääkkölä’s separate property. On appeal, the High Court found that the Copyrights were relationship property, and remitted the issue of how they should be treated under the PRA to the Family Court. Ms Alalääkkölä appealed to this Court, having been granted leave to do so by the High Court on the approved questions of law.
Issue one: Are the Copyrights “property” for the purposes of the Property (Relationships) Act 1976 (PRA)?
Held: Yes.
The Copyrights fall within s 2(c) and (e) of the PRA definition of “property”.
Issue two: If the Copyrights are property, how should they be classified in terms of the PRA?
Held: The Copyrights should be classified as relationship property.
Ms Alalääkkölä submitted, in essence, that even if some of the bundle of rights and interests comprising the Copyrights were acquired during the relationship, the relevant bundle of rights and interests also includes (or is inextricably linked to) other property rights that pre-date or post-date the relationship. The inclusion of these takes the Copyrights outside the definition of relationship property and requires that they be categorised as separate property.
The Court rejected each of Ms Alalääkkölä’s arguments. First, the bundle of rights associated with the Copyrights was distinct from Ms Alalääkkölä’s personal skills and qualifications. Although those skills were used in the creation of the Artworks, they are distinct from the Copyrights that attach to the Artworks. Second, Ms Alalääkkölä’s art business, which was commenced prior to her relationship, is distinct from the Copyrights. Third, the fact that income may be generated, post-separation, from commercialisation of the Copyrights does not assist in determining the classification of the Copyrights under the PRA. Finally, there is nothing in either the Copyright Act 1994 or the PRA to suggest that Parliament intended to remove intellectual property from the reach of the PRA.
As the Copyrights were all acquired by Ms Alalääkkölä during the relationship (namely when each of the Artworks was created by her) they fell within the definition of relationship property in s 8(e) of the PRA (“all property acquired by either spouse or partner after their marriage, civil union, or de facto relationship began”).
Issue three: If the Copyrights are property, how should they be treated in terms of the PRA?
Held: The Copyrights should remain in Ms Alalääkkölä’s exclusive legal ownership, with Mr Palmer receiving a compensatory adjustment from other relationship property to ensure an equal division of relationship property.
Pursuant to s 21 of the Copyright Act, the author of a work is the first owner of copyright in that work. The Act therefore protects and promotes creativity by granting authors, artists, and other creators exclusive control over their original works. It is consistent with the overall policy objectives of the Act that Ms Alalääkkölä, as the creative force behind the Artworks, be able to control the commercialisation of the Copyrights. It would be inappropriate and unfair to require her to transfer ownership of some of the Copyrights to Mr Palmer, for a range of reasons. These include that: Ms Alalääkkölä’s art is highly personal to her, and she wishes to be able to control its commercialisation; any business Mr Palmer set up to commercialise some of the Copyrights would be in competition with and could undermine Ms Alalääkkölä own art business; Ms Alalääkkölä is a working artist whose reputation and personal brand (as well as her future livelihood) could be negatively impacted by Mr Palmer’s decisions in relation to any Copyrights he owned; Ms Alalääkkölä holds inalienable moral rights in respect of the Artworks, which could be a source of further ongoing conflict if some of the Copyrights were transferred to Mr Palmer.
Overall, the “clean break” principle under the PRA favours Ms Alalääkkölä retaining ownership and control of the Copyrights.
The Court therefore orders that Ms Alalääkkölä is to retain sole ownership of the Copyrights, with a compensatory adjustment to be made from other relationship property to ensure an overall equal division.
The Court remits the matter to the Family Court, to assess the quantum of any compensatory adjustment.
Case number
[2024] NZCA 17
Date of Judgment
16 February 2024
Summary
Judicial Review - Required COVID-19 vaccinations - Defence Act 1990 - Armed Forces Discipline Act 1971 - New Zealand Bill of Rights Act 1990 - Appeal allowed
The appellants are four members of the New Zealand Defence Force (NZDF). They are subject to Temporary Defence Force Order 06/2022 (TDFO), which was issued by the Chief of Defence Force (CDF) on 27 May 2022. The TDFO provided for a review of retention in the Armed Forces of any member who was not fully vaccinated for COVID-19 in accordance with the NZDF Vaccination Schedule (Vaccination Schedule). The consequences of not being fully vaccinated for COVID-19 were more prescriptive and stringent than those which apply in respect of not meeting other vaccination requirements on the Vaccination Schedule.
The appellants - two of whom have not received any COVID-19 vaccinations, and two of whom have received their primary doses, but not booster doses - applied in the High Court for judicial review of the TDFO (and related instruments) on the grounds that the TDFO was unlawful because it was inconsistent with the Armed Forces Discipline Act 1971 (AFD Act), the Code of Health and Disability Services Consumers' Rights (the Code), and the New Zealand Bill of Rights Act 1990 (NZBORA).
Churchman J dismissed the challenges based on the AFD Act and the Code. As regards the NZBORA challenge, the Judge accepted that the TDFO limited ss 11 and 15, but did not consider that s 19 was engaged. The Judge was satisfied that maintaining the ongoing efficacy of the Armed Forces was a sufficiently important objective to justify limiting the rights contained in ss 11 and 15, and that the TDFO (and related instruments) were therefore demonstrably justified in a free and democratic society for the purposes of s 5 of NZBORA. The applications for judicial review were dismissed.
The appellants now appeal to this Court, advancing the same grounds of challenge as they did in the High Court.
Held:
The alleged inconsistency with the AFD Act relies on a misunderstanding of the function of s 72 of the AFD Act, which makes it a criminal offence for a member of the NZDF to fail to submit to medical treatment in the circumstances set out in that provision. Section 72 of the AFD Act is not engaged in this case. The Judge was right to dismiss this aspect of the challenge to the lawfulness of the TDFO.
The Judge was also right to dismiss the challenge based on the Code. The Code only applies at the point when a vaccination is offered to an individual NZDF member. It does not apply when the CDF issues a defence force order requiring vaccination, such as the TDFO. So the Code was not engaged when the TDFO was issued.
Sections 11 and 15 of NZBORA are engaged by the TDFO, but s 19 is not. We agree with the Judge that the respondents have established that there was a sufficient justification for limiting those rights by adding the COVID-19 vaccinations to the Vaccination Schedule. But the respondents have not demonstrated that the more stringent and prescriptive consequences brought about by the TDFO for not having these particular vaccinations is justified. In pa1ticular, the respondents have not shown that the ongoing efficacy of the Armed Forces could not have been ensured by less rights-limiting measures along the lines identified by the appellants. To that extent, the TDFO is inconsistent with NZBORA. The appeal is therefore allowed.
The CDF is directed to reconsider the TDFO in light of this judgment, and is ordered to not take any further action pursuant to the TDFO (and related instruments) until that reconsideration is complete.
The appellants are four members of the New Zealand Defence Force (NZDF). They are subject to Temporary Defence Force Order 06/2022 (TDFO), which was issued by the Chief of Defence Force (CDF) on 27 May 2022. The TDFO provided for a review of retention in the Armed Forces of any member who was not fully vaccinated for COVID-19 in accordance with the NZDF Vaccination Schedule (Vaccination Schedule). The consequences of not being fully vaccinated for COVID-19 were more prescriptive and stringent than those which apply in respect of not meeting other vaccination requirements on the Vaccination Schedule.
The appellants - two of whom have not received any COVID-19 vaccinations, and two of whom have received their primary doses, but not booster doses - applied in the High Court for judicial review of the TDFO (and related instruments) on the grounds that the TDFO was unlawful because it was inconsistent with the Armed Forces Discipline Act 1971 (AFD Act), the Code of Health and Disability Services Consumers' Rights (the Code), and the New Zealand Bill of Rights Act 1990 (NZBORA).
Churchman J dismissed the challenges based on the AFD Act and the Code. As regards the NZBORA challenge, the Judge accepted that the TDFO limited ss 11 and 15, but did not consider that s 19 was engaged. The Judge was satisfied that maintaining the ongoing efficacy of the Armed Forces was a sufficiently important objective to justify limiting the rights contained in ss 11 and 15, and that the TDFO (and related instruments) were therefore demonstrably justified in a free and democratic society for the purposes of s 5 of NZBORA. The applications for judicial review were dismissed.
The appellants now appeal to this Court, advancing the same grounds of challenge as they did in the High Court.
Held:
The alleged inconsistency with the AFD Act relies on a misunderstanding of the function of s 72 of the AFD Act, which makes it a criminal offence for a member of the NZDF to fail to submit to medical treatment in the circumstances set out in that provision. Section 72 of the AFD Act is not engaged in this case. The Judge was right to dismiss this aspect of the challenge to the lawfulness of the TDFO.
The Judge was also right to dismiss the challenge based on the Code. The Code only applies at the point when a vaccination is offered to an individual NZDF member. It does not apply when the CDF issues a defence force order requiring vaccination, such as the TDFO. So the Code was not engaged when the TDFO was issued.
Sections 11 and 15 of NZBORA are engaged by the TDFO, but s 19 is not. We agree with the Judge that the respondents have established that there was a sufficient justification for limiting those rights by adding the COVID-19 vaccinations to the Vaccination Schedule. But the respondents have not demonstrated that the more stringent and prescriptive consequences brought about by the TDFO for not having these particular vaccinations is justified. In pa1ticular, the respondents have not shown that the ongoing efficacy of the Armed Forces could not have been ensured by less rights-limiting measures along the lines identified by the appellants. To that extent, the TDFO is inconsistent with NZBORA. The appeal is therefore allowed.
The CDF is directed to reconsider the TDFO in light of this judgment, and is ordered to not take any further action pursuant to the TDFO (and related instruments) until that reconsideration is complete.
Case number
[2024] NZCA 9
Date of Judgment
12 February 2024
Summary
Criminal practice and procedure - Stay of proceedings
The appeal is dismissed.
The appeal is dismissed.
Case name
Case number
[2024] NZCA 6
Date of Judgment
05 February 2024
Summary
Criminal law - Forfeiture orders - Proceeds of crime
The application to adduce further evidence is granted.
The appeal is dismissed.
The appellant must pay the respondents costs calculated for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.
In the event leave is required, it is granted.
Salter Cartage Ltd (SCL) is a company occupying one of four properties owned variously by Mr Ronald and Mrs Natalie Salter personally and together with AKL Trustee Ltd, as trustees of the Salter Family Trust. A fatal accident occurred on SCL premises on 15 September 2015. Following this, the Commissioner applied for forfeiture orders on reliance on significant criminal activity undertaken by the respondents.
Restraining orders were initially made under the Criminal Proceeds (Recovery) Act 2009 by the High Court on 29 November 2019 on an application without notice. The orders affected the four properties. The respondents expressed an intention to apply for an order under s 29 of the Criminal Proceeds (Recovery) Act that the Commissioner give an undertaking to pay damages and costs sustained as a consequence of the restraining orders.
The Commissioner appeals from a High Court judgment requiring him to give an undertaking that he would comply with any order for the payment of damages and costs sustained in relation to restraining orders made under the Act.
Issue one: Should the Commissioner's application to adduce further evidence be granted?
Held: Yes. The further evidence updates the Court on the progress of an ongoing police investigation which will culminate with the substantive hearing of the Commissioner's civil forfeiture application. Its admission is in the interests of justice.
Issue two: Was this appeal from an interlocutory decision, such that leave was required under s 56(3) of the Senior Courts Act 2016?
Held: No. The present context is governed by r 19.2 of the High Court Rules 2016, where applications under the Act are listed among those requiring an originating application. It follows that the Commissioner did not require leave to appeal, and the Court is properly seized of this matter.
If this conclusion were incorrect, the importance of the issues raised would justify the panel granting leave as High Court judges to avoid procedural delays. Leave is granted accordingly.
Issue three: Did the High Court Judge fail to follow the judgment in Yan v Commissioner of Police?
Held: No. The Court considered the relevant considerations in Yan and is satisfied that this was an appropriate case for an undertaking to be required. First, in respect of likelihood and extent of loss, the restraining order would likely have an effect on the sale price that might be able to be achieved on a sale of the business of the SCL Group. This favoured requiring an undertaking. Second, the Judge did not err in his evaluation of the alleged chilling effect. Third, there is no reason to differ from the Judge's conclusion that the Commissioner has an arguable case that could result in forfeiture orders, and it is not appropriate to say anything further on the issue. Rather, the fact that the Commissioner has an arguable case is a neutral factor.
The application to adduce further evidence is granted.
The appeal is dismissed.
The appellant must pay the respondents costs calculated for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.
In the event leave is required, it is granted.
Salter Cartage Ltd (SCL) is a company occupying one of four properties owned variously by Mr Ronald and Mrs Natalie Salter personally and together with AKL Trustee Ltd, as trustees of the Salter Family Trust. A fatal accident occurred on SCL premises on 15 September 2015. Following this, the Commissioner applied for forfeiture orders on reliance on significant criminal activity undertaken by the respondents.
Restraining orders were initially made under the Criminal Proceeds (Recovery) Act 2009 by the High Court on 29 November 2019 on an application without notice. The orders affected the four properties. The respondents expressed an intention to apply for an order under s 29 of the Criminal Proceeds (Recovery) Act that the Commissioner give an undertaking to pay damages and costs sustained as a consequence of the restraining orders.
The Commissioner appeals from a High Court judgment requiring him to give an undertaking that he would comply with any order for the payment of damages and costs sustained in relation to restraining orders made under the Act.
Issue one: Should the Commissioner's application to adduce further evidence be granted?
Held: Yes. The further evidence updates the Court on the progress of an ongoing police investigation which will culminate with the substantive hearing of the Commissioner's civil forfeiture application. Its admission is in the interests of justice.
Issue two: Was this appeal from an interlocutory decision, such that leave was required under s 56(3) of the Senior Courts Act 2016?
Held: No. The present context is governed by r 19.2 of the High Court Rules 2016, where applications under the Act are listed among those requiring an originating application. It follows that the Commissioner did not require leave to appeal, and the Court is properly seized of this matter.
If this conclusion were incorrect, the importance of the issues raised would justify the panel granting leave as High Court judges to avoid procedural delays. Leave is granted accordingly.
Issue three: Did the High Court Judge fail to follow the judgment in Yan v Commissioner of Police?
Held: No. The Court considered the relevant considerations in Yan and is satisfied that this was an appropriate case for an undertaking to be required. First, in respect of likelihood and extent of loss, the restraining order would likely have an effect on the sale price that might be able to be achieved on a sale of the business of the SCL Group. This favoured requiring an undertaking. Second, the Judge did not err in his evaluation of the alleged chilling effect. Third, there is no reason to differ from the Judge's conclusion that the Commissioner has an arguable case that could result in forfeiture orders, and it is not appropriate to say anything further on the issue. Rather, the fact that the Commissioner has an arguable case is a neutral factor.
Case number
[2023] NZCA 672
Date of Judgment
21 December 2023
Summary
Resource consents — Environmental effects — Treaty of Waitangi
The respondents were granted a consent (the Decision) to construct a hydrogen plant and four associated wind turbines at Kapuni in Taranaki (the Project) by an expert panel (the Panel) under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (the FTCA). The intention of the Project was for the hydrogen produced to be used as feedstock for synthetic nitrogen (urea) fertiliser at an existing production facility before transitioning over a five-year period to supplying hydrogen fuel for commercial and heavy transport. Hydrogen fuel may help to reduce greenhouse gas emissions associated with road transport. Urea fertiliser, however, can be harmful to the environment. The conditions of the consent: required the respondents to report on progress in achieving the transition from the hydrogen’s use for urea fertiliser to use for fuel; and allowed the South Taranaki District Council to review the conditions of the consent after a specified period.
Te Korowai o Ngāruahine Trust (Te Korowai) — the post‑settlement governance entity and representative body for Ngāruahine iwi — appealed the Decision to the High Court on a question of law. Ngāruahine includes six hapū. Four Ngāruahine hapū (Ngā Hapū) were interested parties and supported the appeal. The principal concern of Te Korowai and Ngā Hapū was that the proposed wind turbines would impact the relationship of Ngāruahine hapū to Taranaki Maunga by obstructing the visual and spiritual pathway to the Maunga from hapū marae. Te Korowai and Ngā Hapū submitted that the Decision breached s 6 of the FTCA, which required the Panel to act in a manner that is consistent with the principles of the Treaty of Waitangi (the Treaty).
Greenpeace Aotearoa Inc (Greenpeace) was also an interested party in the High Court appeal. It submitted that the Panel had failed to include any condition requiring the transition from the use of hydrogen for fertiliser to its intended use as fuel for commercial and heavy road transport to actually occur and that this was an error of law.
Grice J dismissed the appeal in the High Court. Greenpeace appealed to this Court and Ngā Hapū appeared as an interested party.
Held: The appeal is dismissed. There is no order for costs.
Greenpeace’s appeal
The Panel made no error of law in relation to the transition conditions it imposed. The conditions of the consent properly matched the justification for the referral under the FTCA. The conditions allowed the South Taranaki District Council to exercise a review power under s 128(1)(a)(iii) of the Resource Management Act 1991 for the purposes of assessing the progress of the transition and to propose new conditions to ensure that the transition progresses or continues. While there was no explicit requirement to transition within a specific period, given that a transition was the justification for a fast-track consent, and the consent application advised that a transition was planned over a five-year period, the South Taranaki District Council would need a good reason for not exercising its review power if the transition had not occurred. The failure to exercise the s 128 power could also be the subject of an application for judicial review.
Katz and Mallon JJ considered the Project was not referred to the Panel because it would certainly make a successful transition to utilising the hydrogen for transportation. Rather, it was referred partly because, if the intended transition to hydrogen fuel was successful, it would assist New Zealand’s efforts to mitigate climate change and transition to a low-emissions economy more quickly. The conditions did not require a successful transition because that could not be assured. The Panel’s conditions required a good faith pursuit of the intended transition, but reflected the commercial reality that the uptake of hydrogen fuel by heavy transport is ultimately dependent on factors that are not all within the respondents’ control. If the hydrogen continued to be utilised for urea fertiliser production, it would constitute a very small percentage of urea use in New Zealand and it was a lawful activity regulated by existing resource consents held by Ballance.
Cooper P considered that, read together, the conditions of the consent required a transition from the utilisation of the hydrogen for the purposes of urea production to utilisation in the transport market. The President considered that, while the conditions contemplated flexibility as to timing, the flexibility did not extend to the possibility that the transition would not occur at all.
Ngā Hapū’s appeal
The Panel, in granting consent to the Project subject to conditions, did not fail to act in a manner consistent with the principles of the Treaty.
The High Court Judge’s approach to whether the Decision was consistent with the principles of the Treaty correctly reflected that appeals under the FTCA were limited to questions of law.
The Panel made no error in law in how it approached the consistency of the Project with the principles of the Treaty. The Court accepted that Ngā Hapū’s connection to Taranaki Maunga is a taonga. It did not, however, necessarily follow that the principle of active protection of taonga required the Panel to find that any structure placed on the landscape in front of the Maunga was not consistent with the principles of the Treaty. The principle of active protection, as with other Treaty principles, fell under the overarching principle of partnership. Where adverse effects on Māori spiritual or cultural values can be offset with mitigating measures, that may be sufficient to discharge the duty of active protection in some circumstances.
Here the position of hapū were not consistent nor aligned. The position of Ngāti Manuhiakai, the hapū most affected by the proposed location of the turbines, supported the Project. The hapū and iwi positions before the Panel indicated that the Project would be consistent with the duty of active protection and the overarching principle of partnership provided there were appropriate mitigating measures and conditions. It was not necessary for the Panel to interrogate the possibility of an alternative site: it was not advanced as necessary by the iwi and hapū and the consent application had directly addressed why the proposed site was especially suitable. With the mitigation measures and conditions of consent, the Court considered the Project reflected a balancing of interests reflective of the partnership that the Treaty represents.
The Panel was not required to hold an oral hearing, nor to provide reasons why one was not held. The process adopted by the Panel met the requirements of natural justice. In the absence of any party requesting an oral hearing or explaining why one was necessary, the Panel could not be criticised for failing to provide reasons for why it adopted the default position under the FTCA that a hearing was not required.
Costs
The Court made no order for costs. The submissions of Greenpeace and Ngā Hapū raised matters of public importance in the context of a fast-tracked process under legislation that gave them standing to do so and where no public notice was permitted.
The respondents were granted a consent (the Decision) to construct a hydrogen plant and four associated wind turbines at Kapuni in Taranaki (the Project) by an expert panel (the Panel) under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (the FTCA). The intention of the Project was for the hydrogen produced to be used as feedstock for synthetic nitrogen (urea) fertiliser at an existing production facility before transitioning over a five-year period to supplying hydrogen fuel for commercial and heavy transport. Hydrogen fuel may help to reduce greenhouse gas emissions associated with road transport. Urea fertiliser, however, can be harmful to the environment. The conditions of the consent: required the respondents to report on progress in achieving the transition from the hydrogen’s use for urea fertiliser to use for fuel; and allowed the South Taranaki District Council to review the conditions of the consent after a specified period.
Te Korowai o Ngāruahine Trust (Te Korowai) — the post‑settlement governance entity and representative body for Ngāruahine iwi — appealed the Decision to the High Court on a question of law. Ngāruahine includes six hapū. Four Ngāruahine hapū (Ngā Hapū) were interested parties and supported the appeal. The principal concern of Te Korowai and Ngā Hapū was that the proposed wind turbines would impact the relationship of Ngāruahine hapū to Taranaki Maunga by obstructing the visual and spiritual pathway to the Maunga from hapū marae. Te Korowai and Ngā Hapū submitted that the Decision breached s 6 of the FTCA, which required the Panel to act in a manner that is consistent with the principles of the Treaty of Waitangi (the Treaty).
Greenpeace Aotearoa Inc (Greenpeace) was also an interested party in the High Court appeal. It submitted that the Panel had failed to include any condition requiring the transition from the use of hydrogen for fertiliser to its intended use as fuel for commercial and heavy road transport to actually occur and that this was an error of law.
Grice J dismissed the appeal in the High Court. Greenpeace appealed to this Court and Ngā Hapū appeared as an interested party.
Held: The appeal is dismissed. There is no order for costs.
Greenpeace’s appeal
The Panel made no error of law in relation to the transition conditions it imposed. The conditions of the consent properly matched the justification for the referral under the FTCA. The conditions allowed the South Taranaki District Council to exercise a review power under s 128(1)(a)(iii) of the Resource Management Act 1991 for the purposes of assessing the progress of the transition and to propose new conditions to ensure that the transition progresses or continues. While there was no explicit requirement to transition within a specific period, given that a transition was the justification for a fast-track consent, and the consent application advised that a transition was planned over a five-year period, the South Taranaki District Council would need a good reason for not exercising its review power if the transition had not occurred. The failure to exercise the s 128 power could also be the subject of an application for judicial review.
Katz and Mallon JJ considered the Project was not referred to the Panel because it would certainly make a successful transition to utilising the hydrogen for transportation. Rather, it was referred partly because, if the intended transition to hydrogen fuel was successful, it would assist New Zealand’s efforts to mitigate climate change and transition to a low-emissions economy more quickly. The conditions did not require a successful transition because that could not be assured. The Panel’s conditions required a good faith pursuit of the intended transition, but reflected the commercial reality that the uptake of hydrogen fuel by heavy transport is ultimately dependent on factors that are not all within the respondents’ control. If the hydrogen continued to be utilised for urea fertiliser production, it would constitute a very small percentage of urea use in New Zealand and it was a lawful activity regulated by existing resource consents held by Ballance.
Cooper P considered that, read together, the conditions of the consent required a transition from the utilisation of the hydrogen for the purposes of urea production to utilisation in the transport market. The President considered that, while the conditions contemplated flexibility as to timing, the flexibility did not extend to the possibility that the transition would not occur at all.
Ngā Hapū’s appeal
The Panel, in granting consent to the Project subject to conditions, did not fail to act in a manner consistent with the principles of the Treaty.
The High Court Judge’s approach to whether the Decision was consistent with the principles of the Treaty correctly reflected that appeals under the FTCA were limited to questions of law.
The Panel made no error in law in how it approached the consistency of the Project with the principles of the Treaty. The Court accepted that Ngā Hapū’s connection to Taranaki Maunga is a taonga. It did not, however, necessarily follow that the principle of active protection of taonga required the Panel to find that any structure placed on the landscape in front of the Maunga was not consistent with the principles of the Treaty. The principle of active protection, as with other Treaty principles, fell under the overarching principle of partnership. Where adverse effects on Māori spiritual or cultural values can be offset with mitigating measures, that may be sufficient to discharge the duty of active protection in some circumstances.
Here the position of hapū were not consistent nor aligned. The position of Ngāti Manuhiakai, the hapū most affected by the proposed location of the turbines, supported the Project. The hapū and iwi positions before the Panel indicated that the Project would be consistent with the duty of active protection and the overarching principle of partnership provided there were appropriate mitigating measures and conditions. It was not necessary for the Panel to interrogate the possibility of an alternative site: it was not advanced as necessary by the iwi and hapū and the consent application had directly addressed why the proposed site was especially suitable. With the mitigation measures and conditions of consent, the Court considered the Project reflected a balancing of interests reflective of the partnership that the Treaty represents.
The Panel was not required to hold an oral hearing, nor to provide reasons why one was not held. The process adopted by the Panel met the requirements of natural justice. In the absence of any party requesting an oral hearing or explaining why one was necessary, the Panel could not be criticised for failing to provide reasons for why it adopted the default position under the FTCA that a hearing was not required.
Costs
The Court made no order for costs. The submissions of Greenpeace and Ngā Hapū raised matters of public importance in the context of a fast-tracked process under legislation that gave them standing to do so and where no public notice was permitted.
Media Release
- MR [2023] NZCA 672 (PDF, 202 KB)