The Environment Court has put an end to a near-decade long saga of litigation with its decision in Page v Whanganui District Council [2018] NZEnvC 94. The decision is the first to determine an application for an order made under the newly-introduced section 288C to the Resource Management Act. Section 288C is one of a suite of new provisions introduced by the Resource Legislation Amendment Act 2017 which took effect earlier this year. New sections 288C to 288F to the RMA empower a judge to make an order restricting a person from commencing or continuing proceedings without first obtaining the leave of the Court.
The decision is the culmination of nearly 20 earlier decisions beginning in early 2009 when the Environment Court granted an application by the Whanganui District Council for a series of enforcement orders against the owners of a Whanganui property, including Mr Page. Over the next 9 years, Mr Page continued to oppose the enforcement orders. A number of these proceedings were struck out on the basis that they were vexatious, an abuse of process, were made without any substantive basis or were attempts to relitigate matters that had been determined.
In 2018 Mr Page made three applications to the Environment Court alleging, among other things, fraud, conspiracy to pervert the course of justice and cheating by the Council. In response, the Council lodged two cross-applications: the first seeking to have Mr Page’s applications struck out; and the second seeking an order under section 288C.
The decision
The Court dismissed all of Mr Page’s applications. However, the Court noted that it would have struck out his applications as being vexatious and an abuse of process had they not been dismissed. The Court then turned to determining the Council’s application for an order under section 288C (i.e. to restrict Mr Page from commencing or continuing proceedings).
To make an order under section 288C, section 288D requires that the judge considers that at least two proceedings commenced by the party to be restrained are or were “totally without merit”. The judge can specify that the order has effect for up to three years, or five years in exceptional circumstances.
Judge Kirkpatrick granted the order following an assessment that can be broken into three questions:
Were at least two proceedings commenced by Mr Page that were “totally without merit”?
If so, should a limited or extended order be granted (a limited order restrains a party from continuing or commencing civil proceedings on a particular matter; whereas an extended order relates to a particular or related matter)?
Is granting an order a justified limitation on Mr Page’s right to justice under the New Zealand Bill of Rights Act?
Whether at least two proceedings were commenced that were “totally without merit”
The RMA does not provide any guidance on the meaning of the phrase “totally without merit”. The Court considered a number of factors were relevant to the issue, including:
the merits of the proceeding;
the prospects of success;
exposure of other parties to inconvenience, harassment and expense out of proportion to the gain a plaintiff is likely to receive; and
whether regard is paid to merit, proportionality or cost by a litigant.
The Court considered that the purpose of the new provisions is to “provide a means to control repetitive proceedings on…matters where the proceedings are ‘totally without merit’”. The Court noted that a number of the previous decisions on applications by Mr Page included express findings that applications were vexatious or an abuse of process. It held that the prior decisions evidenced a “record of repetitive applications with increasingly untenable grounds and no merit” and therefore concluded that the requirement in section 288D was met.
Whether to grant a limited or extended order
The Court considered the distinction between a limited order and an extended order, noting that in the context of the RMA, this distinction may be difficult to draw as multiple issues often arise out of a single case. With regards to the present case the Court considered that matters of the original enforcement order, costs, and various subsequent applications made by Mr Page relating to evidential issues went beyond a single particular matter and therefore an extended order should be granted. Judge Kirkpatrick also noted, however, that it might be possible to interpret the proceedings as arising out of a single matter – being the enforcement order – but adopted a cautious approach in treating them as related matters, determining that an extended order would be more appropriate in these circumstances.
New Zealand Bill of Rights Act 1990 (NZBORA)
The decision also addresses the question of whether the making of an order under section 288C is a justified limitation on the rights in section 27 (right to justice) of the NZBORA. The Court drew the following key points:
that the use of this power is certainly a restriction of civil rights and should not be exercised lightly;
the restriction is justified in cases where it is necessary to:
protect defendants who are harassed by the worry and expense of vexatious litigation; and
ensure that the limited resources of the judicial system are used for the resolution of genuine proceedings.
The Court acknowledged that Mr Page’s access to the Court would be diminished by the grant of an order under section 288C but stated:
The course of the various proceedings over nine years goes beyond any reasonable degree of latitude that the Court can properly give to a litigant whose applications have been repeatedly dismissed and, further, held to be vexatious on numerous occasions. In the interests of justice I must also protect the Council from the trouble and expense of responding to meritless proceedings...I also see no proper basis on which to refuse to make any order…
Result
The Court made an extended order restricting Mr Page from commencing or continuing civil proceedings in the Environment Court on all matters related to earthworks and vegetation clearance undertaken by him at the Whanganui property for a period of three years.
Comment
Previous recourse against vexatious litigants included the power of the Attorney-General to make an application under the Judicature Act to the High Court to bar persistent vexatious litigants, and the power of the Court to strike out or dismiss applications as vexatious. Only the latter was capable of being utilised by the Environment Court and was invoked a number of times in relation to applications made by Mr Page. This did not, however, deter him from continuing to bring proceedings over a nine-year long saga.
The new provisions enable any party to make an application for an order and enable Environment Court judges to make orders on their own volition. This allows the Court to prospectively restrict clearly vexatious litigants from bringing further proceedings.
An order bars a person from bringing proceedings on a particular, or related, matters. Therefore, although it limits the right to justice under section 27 NZBORA, it is not a total bar to the justice system. A person against whom an order is made is still able to bring proceedings in relation to matters which are the subject of the order if leave is granted by the Court, and the bar does not extend beyond the Environment Court’s jurisdiction – meaning they are able to, for example, bring proceedings in other jurisdictions. Additionally, under 288F(7) a person against whom an order is made may appeal the order to the High Court.
It is our view that these provisions will be used sparingly by the Court, however, this case demonstrates that there is a need for such provisions in certain circumstances.