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ENVIRONMENT COURT’S FIRST USE OF NEW ‘VEXATIOUS LITIGANT’ POWERS
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In a recent decision the Environment Court imposed the first-ever order restricting a litigant from bringing Court proceedings under the Resource Management Act 1991 (‘RMA’).

As part of the 2016 RMA amendments, the Environment Court was granted the power to restrict litigants from bringing proceedings (‘restricting orders’).[1] These new orders were introduced as a result of the 2014 Judicature Modernisation Bill. Similar provisions have been introduced to the District Courts Act, Senior Courts Act, Te Ture Whenua Maori Act, and the Employment Relations Act.[2]

The Environment Court imposed its first restricting order last week in Page v Whanganui District Council [2018] NZEnvC 094.

What are restricting orders?

A restricting order can be made where a litigant brings two or more proceedings that are ‘totally without merit’.[3] This includes situations where it is impossible for a claim to succeed, it exposes the other party to inconvenience, harassment and disproportionate expense, and/or is brought without any regard to its merit.[4]

Restricting orders can have either limited or extended effect, with slightly different scopes on what proceedings a litigant is restricted from bringing to the Court.[5] Orders made under the RMA only restrain litigants from bringing proceedings in the Environment Court, and can be in force for up to five years.[6]

The Page v Whanganui District Council decision

This case concerned an enforcement order granted to the Whanganui District Council in 2009 to stop Mr Adrian Page from conducting earthworks and vegetation clearance at a Whanganui property .

In the nine years following the enforcement order, Mr Page brought a total of 14 cases in the Environment Court, High Court, and Court of Appeal appealing, seeking amendments to, or applying to cancel various elements of the enforcement order.

In March this year, Mr Page made further applications to the Environment Court. In response, the Whanganui District Council applied to strike out Mr Page’s applications, and for an order restricting Mr Page from commencing or continuing proceedings.

In its decision released last week, the Environment Court dismissed Mr Page’s applications, finding “a record of repetitive applications with increasingly untenable grounds and no merit”[7].

The Court stated that while a restricting order would diminish Mr Page’s rights to access the Court, the Court is also required to protect the Council from meritless proceedings.[8] As a result the Court made an extended restricting order against Mr Page, restraining him from bringing proceedings to the Court on all matters related to earthworks and vegetation clearance undertaken by him at the Whanganui property for a three year period.

Our take

The Page v Whanganui District Council decision indicates that, while the power to restrict litigants from bringing proceedings will be exercised scarcely, it is a real power that the Environment Court is willing to use in appropriate situations. The complexities and competing rights that are bundled up in these new orders were illustrated in this decision, with the Court required to delve into the history behind these orders.

If you have any questions about these ‘restricting proceedings’ orders, or any resource management issues that we can help with, please do not hesitate to contact Nicky McIndoe, Christina Sheard, or Marija Batistich.

This newsflash was prepared by Nicky McIndoe and Akane Sandom. Nicky and Akane appeared for the Whanganui District Council in these proceedings.

FOOTNOTES

[1] The ‘restricting orders’ are set out in sections 288C – 288F of the Resource Management Act 1991 (‘RMA’).

[2] An almost identical order was recently imposed under section 169(3) of the Senior Courts Act 2016.

[3] Section 288D of the Resource Management Act 1991.

[4] See paragraph [52] of Page v Whanganui District Council [2018] NZEnvC 094.

[5] A limited order restrains a party from bringing proceedings on a particular matter only, whereas an extended order restrains a party from bringing proceedings on particular and related matters. See section 288C of the RMA.

[6] See sections 288C(1) and 288E(2) of the RMA.

[7] See paragraph [76] of the decision.

[8] See paragraph [79] of the decision.

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