Practice Notes - Case management
2. Case management
The objectives of case management by the Court are to -
- ensure the just treatment of all parties;
- promote the prompt and efficient disposal of cases;
- improve the quality of the litigation process;
- maintain public confidence in the Court; and
- efficiently use available judicial, legal, and administrative resources, and achieve the purpose of the RMA (where that is the relevant controlling legislation).
2.2 The concept of management tracks
The Court's principal methods of case management are as follows:
- Cases that are not complex are assigned to a standard track, under which the Court issues directions that are standard in nature for the management of each case.
- More involved cases (such as statutory plan appeals, appeals concerning a major development proposal, and matters referred to the Court by the Minister for the Environment under s141B(l)(b)) which require individual management are assigned to a complex track, and are managed through mechanisms such as timetabling of procedural steps and progress reporting to the Court, judicial conferencing, and formal pre-hearing directions or rulings.
- Subject to the Court's agreement, cases in which the parties agree that management be deferred for a period are placed on a parties' hold track, with case management being resumed (failing settlement or withdrawal of the proceedings) at the parties' request, or at the expiry of the deferral period, or otherwise at the Court's direction.
2.3 The essential features of case management
The essential features are -
- Identification at an early stage of the issues in dispute and encouragement of settlement by negotiation, or the use of alternative dispute resolution (ADR) techniques under s268;
- Planning the course of the proceedings soon after commencement, in consultation with the parties and counsel, so that the parties and counsel are aware of the events that will occur, and the likely time and cost involved;
- Reduction in the delay and expense of interlocutory processes;
- The application of Court supervision for more complex cases through directions and conferences, timed to occur at critical points in the progress of those cases where such supervision is required. In consultation with counsel and the parties, the Court will settle pre-hearing steps and specify associated timetables to meet the needs of complex track cases;
- Monitoring parties' performance in ensuring that events occur as time-tabled so that orderly progress towards conclusion results, parties' preparation is facilitated, and prompt settlement is encouraged.
2.4 Management tracks
2.4.1 All cases, on filing, are assigned by a Judge or the Registrar to one of the case tracks, and the parties notified.
2.4.2 Cases may be transferred at any time from one track to another where circumstances warrant by direction of the Court, whether upon application by a party or not. Any request for transfer will be considered at the next conference or upon an application made for that purpose.
2.4.3 Proceedings requiring priority attention, including urgent applications for enforcement orders and for priority proceedings under Part 12 of the Act, will have tailored case management applied according to the needs of each case. Such proceedings will usually be placed in, or moved to, the complex track.
2.4.4 Applications for priority hearing, if granted, will usually result in proceedings being moved for case management purposes to the complex track.
2.5 The standard track
2.5.1This track includes most s120 (ie resource consent) appeals, some plan appeals, and non-urgent enforcement and other miscellaneous proceedings. The features underlying or associated with case management under the standard track are:
- Identification by the parties of the issues in dispute at an early stage, and promptness in seeking to achieve resolution by negotiation or through alternative dispute resolution (ADR) techniques;
- The affording of an opportunity to the parties to plan the course of the proceedings, so that they will be responsible for and aware of the events that will occur, and the likely time involved;
- Avoidance of formal interlocutory applications and unnecessary appearances in Court for callovers or conferences;
- A standard directive format that a party to the proceedings (normally the respondent) is to lodge with the Court and serve a report (to include a programme for the proceedings), consequent upon consultation with other parties, within 50 working days, or such other (generally shorter) period that the managing Judge may specify;
- Identification as soon as practicable of a firm date for hearing the proceedings;
- Stipulation of particular requirements for evidence exchange and lodging if considered appropriate by the Court.
2.5.2 If any party fails to co-operate with the reporting party in the preparation of the report, the reporting party is still to lodge the report in consultation with those parties who do co- operate within the time prescribed. Should a party's failure to comply with the Court's directions occur without reasonable excuse, sanctions and other steps will be considered and invoked by the Court as appropriate.
2.5.3 Any local authority that consistently fails to report in time runs the risk that all appeals in which that local authority is respondent will automatically be placed on the complex track.
2.6 The complex track
2.6.1 This track applies to more complex proceedings - including all matters referred by the Minister for the Environment under s141B, most plan appeals, urgent enforcement proceedings and some groups of related s120 appeals. Given that in practice most plan appeals do settle, reasonable opportunity is needed for parties to consider settlement and if necessary to move the proceedings to the parties' hold track. Further, it is recognised that a local authority will need time to analyse and categorise plan appeal proceedings and supply information about that to the Court in summary form.
2.6.2 Matters referred to the Court by the Minister under s141B are, by definition, of national significance and likely to be complex. The likely large number of submitters, and the absence of a first instance hearing, are indicative factors that intense case management will be required.
2.6.3 The essential feature of the complex track is that cases (or sets of related cases) will be managed on an individual programme as set by the managing Judge. Issues to be addressed will include -
- directions on the definition and narrowing of issues, including any related matters such as scheduling within timetables, and separation or consolidation of proceedings;
- determination of procedural and jurisdictional disputes, particularly those that may substantially affect the course or scope of the proceedings; and
- periodic monitoring of progress to see that timetables are being followed.
2.6.4 Except in the case of the statutory or regulatory time limits, (which, if not met, can only be extended by the Court granting a waiver under s281), time limits and other controls and requirements will be fixed after consideration of parties' views, and will be revised when warranted by the circumstances. Having established a programme, however, the managing Judge will expect schedules to be met. If they are not, sanctions for failure to comply and dilatory tactics, (such as the awarding of costs to disadvantaged parties irrespective of the eventual substantive outcome), will be considered and invoked by the Court as appropriate. In cases of serious default, striking out of the defaulting party's case may ensue.
2.7 The parties' hold track
2.7.1 Cases will be placed on the parties' hold track when the parties are not seeking a hearing - for example, to allow an opportunity to negotiate and/or mediate, or where a plan variation or change is promoted by a local authority.
2.7.2 However, there does need to be some judicial oversight so that progress occurs; and cases may be set down for a judicial conference at a Judge's direction or upon written application.
2.8 Pre-hearing conferences
2.8.1 The Court expects the parties, particularly their professional representatives, to take a proactive role in contacting, negotiating and settling with other parties before seeking the Court's assistance to determine procedural issues.
If the parties cannot resolve issues between themselves, then, at the request of any party or on the Court's initiative, there may be a pre-hearing conference of the parties or their representatives, as contemplated by s267. The purpose of the conference is to ensure that proper preparations are made for the fair, orderly and efficient hearing of the proceedings. Directions may be given about disposal of preliminary questions, delivery of statements of evidence, and time and duration of the hearing of the case. Any request for a conference should state any particular matters which the party requesting it proposes should be considered at the conference. Any party who intends to take part in the hearing of the proceedings should attend the conference, or be represented at it by someone who is familiar with the part to be taken and the submissions and evidence to be given.
Callovers of numbers of proceedings are held from time to time. The purpose of callovers is for the parties to inform the Court of the status of the proceedings. A callover allows opportunity for proceedings to be withdrawn, or (following settlement of issues) for consent orders to be proposed to dispose of the proceedings in whole or in part, or for directions to be sought and given in preparation for hearing of the proceedings (including disposal of preliminary questions, timetables for exchange of evidence, and the time of hearing of the case).
2.10 Setting down for hearing
The Court has a statutory duty to hear and determine every appeal as soon as practicable after it is lodged unless circumstances warrant otherwise. Consequently, the Registrar will, without prior reference to the parties, issue a notice of hearing as soon as an opportunity presents itself for an appeal to be heard. Therefore, if there are reasons in any particular case why the hearing of an appeal should be deferred, the Registrar should be informed by one of the parties as soon as those circumstances arise. The Court will not usually defer the hearing of an appeal against the grant of a resource consent if the successful applicant for that consent opposes the deferment.
If, after notice of hearing of an appeal has been given, the parties want an adjournment, they should communicate with the Registrar immediately stating the grounds for the adjournment. Such an adjournment request, though by consent, may not necessarily be granted. If an adjournment is sought at a late stage, the Court may order payment of costs to the Crown.
2.12 Priority hearings
In the normal course, and as far as practicable, the Court hears proceedings in the order in which they were commenced. If a party in any proceedings seeks that those proceedings be heard earlier, an application for a priority fixture may be made. Such an application should show reasons (if appropriate by reference to the contents of an affidavit) why the proceedings should be heard in priority to other proceedings - whether in the public interest, or in relation to the justice of the particular case (for instance, where awaiting the case's normal turn would negate the point of the proceedings). The application should state when the case is expected to be ready for hearing and the likely duration of the hearing. Unless the other parties signify consent or non-opposition, the application should be served on them in the normal way. Where there are competing applications for the same resource, the Court will consider the priorities that applied before the primary decision-maker.
2.13 Withdrawals and consent Orders
If any matter is to be withdrawn, or disposed of by consent order, the parties must notify the Registrar as soon as that course of action is reasonably certain. If the text of a proposed consent order is submitted in appropriate form in writing signed by or on behalf of all parties, with a sufficient explanation of what is proposed and why, appearances may be dispensed with. Otherwise, when seeking a consent order, a copy of the proposed order and supporting explanation is to be made available for each member of the Court.
2.14 Witness summonses
To avoid unreasonableness through the belated summonsing of witnesses, and to allow reasonable opportunity for statements of evidence to be prepared, the Court expects witness summonses to be served no later than 15 working days before the date of hearing. Except when a witness is agreeable to attend the hearing in circumstances where the issue of a summons is effectively a matter of form, the Court will not normally issue a witness summons less than 10 working days before the hearing.
Any person served with a witness summons is expected to prepare a written statement of evidence, if only to produce a previously prepared report or similar document.
2.15 Statements of evidence
2.15.1 The Court requires that copies of a witness's statement of evidence (including photographs and other visual presentations other than models) are to be provided by the party calling the witness to all other parties prior to the hearing of the proceedings. In most cases, directions are given about the time when statements of evidence are to be delivered to the other parties. In every case where no special direction has been given, statements of evidence are to be delivered not less than 5 working days before the hearing is to start. If copies of a statement of evidence are not delivered in time, leave will need to be sought to call the witness, and the failure to comply will need to be explained. Leave to call the witness may be refused, or the party in default may be ordered to pay the costs of adjournment incurred by other parties and by the Court.
2.15.2 For extra requirements that relate to the evidence statements of expert witnesses, see part 5 of this Practice Note.
All exhibits, including photographs and other visual presentations, are to be presented in a practical and manageable form. By way of example, individual photographs should be separately mounted and identified. A bundle of documents, or a series of photographs, should be presented in a folder or binder which should be paginated and indexed, with protruding tabs. If a photograph or other visual presentation is of a size or kind that renders it impractical to provide copies to other parties, it will suffice for the party intending to produce it at the hearing to notify the other parties not less than 5 working days prior to the hearing where it may conveniently be inspected.
2.17 Planning instruments, maps etc
2.17.1 On any appeal, the respondent Council should bring to the hearing sufficient copies of the relevant regional and district plan(s) for the use of members of the Court during the hearing. The Court may need to retain a copy for reference in its deliberations and in the preparation of its decision.
2.17.2 In the case of appeals lodged under statutes other than the RMA, the Court expects to be provided with copies of the relevant legislation.
2.17.3 The respondent Council shall ensure that it is in a position to make available to the Court during any hearing all relevant documents, maps, plans and other exhibits that are in its custody and not subject to privilege.
2.18 Co-operation in the preparation of evidence
In preparing for the hearing, parties are expected to co-operate in ensuring that the proceedings are dealt with in a focussed way. With that in mind, parties are encouraged to, and may be directed to, provide a statement of agreed facts and issues, and an agreed dossier or folder containing copies of relevant provisions of statutory planning instruments, and any other documents common to the parties, at or shortly before the hearing. Succinctness and the avoidance of needless repetition, aided by efficient cross-referencing, tabulation and indexing, are sought by the Court.
2.19 Citation of Court decisions
2.19.1 A considered and discerning approach to the citation of cases needs to be adopted, with particular emphasis on -
- citation of the most recent or authoritative statement on a point rather that a plethora of cases (remembering however that some points are not amenable to simple or straightforward answers);
- identification of relevant passages by paragraph and/or page number;
- identification of official report citations where such exist; and
- succinctness and avoidance of needless repetition.
2.19.2 The Court does not expect bundles or casebooks of authorities to be provided beyond those cases that are sought to be specifically drawn to the Court's attention and relied on.