Environment Court’s first use of new ‘vexatious litigant’ powers

by Contributor21 Jul 2018

The Environment Court recently imposed its first ever order restricting a litigant from bringing Court proceedings under the Resource Management Act 1991.

So-called “vexatious litigants” have long created headaches for applicants and consent authorities alike. The new Environment Court powers are a tool that could help reduce wasted costs and time associated with vexatious litigants in the future.

The Page v Whanganui District Council case stemmed from an enforcement order granted to the Whanganui District Council in 2009* to stop a builder from conducting earthworks and vegetation clearance at a Whanganui property.

In the nine years following the enforcement order, the builder brought more than 12 cases to the Environment Court, High Court, and Court of Appeal, challenging the enforcement order from various angles. In March this year, the builder again made similar applications to the Environment Court. In response, the Whanganui District Council applied to strike out his applications, and for an order restricting him from bringing proceedings to the court. Surely nine years of litigation was enough.

In its decision released last month, the Environment Court made an order restraining the builder from bringing proceedings to the court on all matters related to earthworks and vegetation clearance undertaken by him at the property for a three-year period. This is the first instance of the Environment Court issuing such an order.

The Environment Court was granted the power to make restricting orders under the 2016 amendments to the Resource Management Act. Similar provisions have been introduced to other legislation, so that, for example, the Employment Court can make similar orders. Restricting orders can be made where a litigant brings two or more proceedings that are “totally without merit.”

The Page v Whanganui District Council decision shows that, while the power to restrict litigants from bringing proceedings will be exercised with caution, the Environment Court is willing to use this power 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 of the proceedings in order to satisfy itself that justice was best served by granting the order.

*McIndoe and Sandom appeared for the Whanganui District Council in these proceedings

By Nicky McIndoe, partner, and Akane Sandom, solicitor, in the Environment and Planning team at Kensington Swan


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