Appeal hearings: process and protocol

Each court and Judge has slightly different ways of organising appeals, holding hearings, and exchanging evidence. The Court is required to recognise tikanga Māori. You may wish to contact the Environment Court registrar if you want more information.

The Courts (Remote Participation) Act 2010 allows AVL to be used in some court proceedings.

Parties can apply to the court to appear in hearings, mediations, and procedural meetings such as conferences via AVL. A judicial officer or registrar may also consider it appropriate to use AVL.

The practical arrangements for the use of AVL will depend on the number of parties, their location (which may affect the practicality and cost of attendance in person), the issues to be discussed, and the availability of AVL facilities.

Environment Court hearings are required to be in public. However, the Environment Court can order that particular evidence can be heard in private or it can restrict or prohibit the publication of evidence. It can do this if it considers there are reasons that outweigh the public interest in having public hearing and publication of evidence.

The Environment Court has some flexibility in managing appeal hearings. For example, it might decide to hear two or more proceedings together if they are about the same issue.

In general, the court will ask the person who lodged the appeal (the appellant) to state their case and then give evidence to support it. Usually, this is in the form of reading a typed statement, although the court may require you to speak the evidence by question and answer. The parties that support the appellant might be asked to present their submissions at this stage.

The court can then ask the person whose decision or action the appeal is against (the respondent) to present their case. The other parties who have said they would like to appear against the appellant will also have their chance to do so.

The appellant may then have the opportunity to reply to matters that the other parties raise. You cannot introduce new material at this stage, and it is only an opportunity for response, not for restating your case.

Each party can ask relevant questions of those giving evidence for other parties. This is called cross-examination. The court itself can also ask questions at any stage of the hearing.

Because the Environment Court generally re-hears all matters considered by the council, you should present to the court all material which went to the council.

Here are some terms that may be used to describe what you can use in presenting your case:

• Submissions: legal arguments that are not given under oath. These do not always need to be written, and can be spoken. However, written submissions are often more convenient for the court who may require them.
• Evidence: factual information or expert opinion given under oath by people with relevant qualifications, experience and knowledge. Witnesses may be cross-examined. Evidence must be in writing and should be clear and concise.
• Exhibits: documents such as photographs, maps, or plans included in evidence. If you quote or refer to documents in your evidence, you should provide original copies.
• Expert witnesses: people who give specialised evidence at the hearing – for example, on matters such as noise, traffic, public health, Māori cultural matters, and ecology. Experts have a code of conduct, which is set out in the Environment Court’s Practice Note [Environment Court website].

Environment Court to have regard to decision being appealed

The Environment Court must have regard to the decision that is being appealed. The court has explicit powers to accept evidence that was submitted at the consent authority hearing and to direct how evidence is to be given to the court. This enables the court to take evidence as read.

If you choose to present your own case to the Environment Court there are some protocols you should follow before and during the hearing.

To help you prepare, see the Environment Court Practice Note [Environment Court website]..

Before the hearing

• Unless the court directs otherwise, you must exchange copies of all evidence with every other party no later than five working days before the hearing, or let them know where to find the evidence if you can’t provide a copy. If this does not happen, the hearing can be adjourned and you may have to pay costs.
• You must provide four copies of your evidence to the court.
• The court prefers that, if required, parties call any witnesses no later than 10 working days before a hearing. Leave will need to be sought to call the witness and failure to comply will need to be explained. The court may refuse leave.

Prepare written statements

Written statements of evidence will assist the court. Although it is possible for the court to hear spoken evidence, this is usually recorded and transcribed so the court has a permanent record. This means there will be a delay while the transcriptions are circulated before the next part of the hearing.

Recognising tikanga Māori

If you would like to present your evidence in te reo Māori, you would need to give notice to the court before the hearing, so an interpreter can be arranged.

The court may also hear your case on a marae or in a place other than the court if you request. You will need to get the agreement of the other parties, and make your request to the court well before the hearing.

Study the case law

Case law may provide a useful background to your own situation. Some knowledge of the findings of previous cases can help you focus your own case. Your lawyer should be able to do this preparatory work as part of preparing your case and arguments.

During the hearing

Introduce your case

You may only have one opportunity to address the court. You will be expected to state your case concisely at the outset.

• Outline the circumstances of the case and the nature of the evidence you are using.
• State the resource management factors relevant to your case, and the legal principles you are relying on.

Use the correct forms of address

Refer to Judges as ‘Your Honour’ or ‘Her/His Honour’.

Address the Commissioners as ‘Mr Commissioner’ or ‘Madam Commissioner’.

Follow the court’s instructions or advice

During the hearing, you should follow any advice from the court or its officers. They will try to ensure everyone understands what is going on.

Organise your evidence

Your case should tell a story. Keep your presentation focused and uncluttered, and avoid repetition. It is frustrating for the court and the other parties if you include material that is not directly relevant.

Present any physical evidence (known as exhibits), including photographs and other visual presentations, in a practical form. For example, mount and identify photographs. If you have a bundle of documents, or a series of photographs, present them in a folder or booklet. Make sure your physical evidence is clear. Maps are an invaluable tool to help the court understand the location of the site relative to other local or broader features and any site details relevant to your case.

In preparing for the hearing, you are expected to cooperate with the other parties by providing an agreed statement of facts and issues, and an agreed folder of documents.

Choose your witnesses carefully

You need to consider how each witness helps your case. If a witness does not add anything to your case, then leave them out.

Brief your witnesses

Make sure your witnesses are clear about the key issues in your case, and how you want them to contribute to it. Sometimes, hearings can be stressful, and emotions can run high. You, and your witnesses, should try not to be distracted by criticising other witnesses or the other parties. Focus on ensuring that you present your own case clearly to the Judge and Commissioners.

Speak clearly

When you read written statements, you should speak clearly and at a speed that allows the court to take notes. Practise reading your statements aloud before the hearing starts.

Help the court to understand

You should explain and provide details about the evidence that you present to the court. For example, the court will want to try to define the physical boundaries of the areas you talk about. Any maps you can produce which help the court understand the dimensions of an area will help your case.

If you do speak about exhibits such as maps, remember to give helpful explanations so your evidence makes sense to the court during and after the hearing. Try to use phrases such as ‘in the top left corner of exhibit 3’.

If languages, other than official New Zealand languages are used in the court, you must carefully explain any words you use in your written statements and spoken answers. This is so the court understands your interpretation or translation, and does not substitute one of their own or one from another witness.

After the hearing ends, you would normally expect to receive a decision within three months. Sometimes it can take longer.

It is generally not appropriate to communicate with the court about the details of your case after the hearing ends and before the court makes a decision.

Decisions of the Environment Court are almost always ‘reserved’. This means that written judgments are delivered sometime after the hearing, rather than being spoken ‘on the spot’. This is because the matters before the court are often complex and of some public importance. The court must give reasons for the decision it makes, and therefore preparing the decision will take some time.

Decisions on costs

The Environment Court may order costs in favour of any party. If costs are not recorded in the judgment, the successful party can apply to the Environment Court for an award of costs. The Judge will then need to decide whether the other party should pay money to the successful party. This would help pay for their expenses from being involved in the case. The Judge will consider a number of factors before issuing a judgment indicating the amount, if any, that must be paid.

If the party who has been ordered to pay costs refuses to do so, the District Court can enforce the award of costs.

Can I appeal the court’s decision?

Under the RMA you can appeal to the High Court on points of law only – for example where a party questions whether the Environment Court has interpreted legislation correctly. It is strongly recommended that you engage a lawyer if you wish to make an appeal.

If you want to lay a complaint about an Environment Court Judge or Environment Court Commissioner, you must do so in writing. A verbal complaint (for example by phone) is not acceptable.

Send your complaint, setting out your concerns and what remedies you seek, to:

Chief Environment Court Judge
PO Box 7147
Auckland 1141

You can also send a complaint to the Judicial Conduct Commissioner. Complaints need to state the name of the judicial officer, your name and the action or behaviour you are complaining of.

Contact:

Post: PO Box 2661, Wellington 6140

Phone: 0800 800 323

Email: judicialconduct@jcc.govt.nz