High Court orders Brook Valley anti-poison group to pay $70,000 in costs

Thursday, 2 November 2017

Police, Māori Wardens and some protesters gather along Brook St on October 18 as the final planned aerial poison drop is carried out at Brook Waimarama Sanctuary.

The Brook Valley Community Group has been ordered to pay more than $70,000 in costs over legal action it took in its battle to prevent aerial poison drops at Brook Waimarama Sanctuary, near Nelson.

In a High Court judgment, Justice Peter Churchman orders the community group to pay $26,411.14 to Brook Waimarama Sanctuary Trust, $23,789.98 to the Minister for the Environment and $21,460.05 to Nelson City Council.

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Justice Churchman's order relates to two legal rulings that went against the group:

* A judicial review application involving a challenge to the validity of the Resource Management (Exemption) Regulations 2017. That application failed and has been appealed to the Court of Appeal. A hearing date is awaited.

* An application for a stay and interim relief, which was refused by the High Court. That decision was later upheld by the Court of Appeal, paving the way for the planned three-stage aerial operation to proceed.

The three drops of brodifacoum-laced bait were completed at the sanctuary between September 2 and October 18.

Justice Churchman applied a 10 per cent 'public interest' discount for the portion of awarded costs related to the substantive proceeding for both the Minister for the Environment and Nelson City Council.

That was 'in recognition of the fact that the plaintiff is an incorporated society and was pursuing the judicial review in order to ensure that public powers were exercised in a responsible and accountable manner'.

However, no public interest discount was applied in regard to costs incurred by the sanctuary trust.

'The trust is a charitable body working to establish a sanctuary for New Zealand birds and restore, to as natural state as possible, a functioning ecosystem,' Justice Churchman says.

'The trust has also proceeded in, and is also representative of, the public interest.'

In his October 31 judgment, Justice Churchman says lawyer Sue Grey, acting for the community group, opposed any order of costs until the Court of Appeal had heard and determined the appeal of the substantive judgment, which relates to the validity of the Resource Management (Exemption) Regulations 2017.

'Ms Grey cited no principle or authority that a costs award for a substantive proceeding should be postponed until the determination of its appeal, nor could I find any such principle,' Justice Churchman says.

'Accordingly, I will proceed to set costs.'

Grey said she was assessing options and seeking instruction from her client on the costs judgment.

In a post on the Brook Valley Community Group Inc Facebook page, Christopher St Johanser says a letter from the law firm acting on behalf of the trust gives a seven-day deadline for the group to pay the costs awarded or 'they would apply to have us wound up'. Crown Law 'has communicated a similar threat'.

'There is no reason to be concerned,' St Johanser says in the post. 'Please continue all the good work you are doing. It is not for yourselves, I know, but for the public good.'