Tepa v National Environment Service [2006] CKHC 5; PLAINT 38 of 2006; Misc 63 of 2006 (10 October 2006)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

Plaint No. 38/06
Misc. No. 63/06

BETWEEN

TEIRI TEPA & OTHERS
Plaintiffs

AND

NATIONAL ENVIRONMENT
SERVICE
First Defendant

AND

ISLAND ENVIRONMENT
AUTHORITY FOR
RAROTONGA
Second Defendant

AND

THE RAROTONGAN BEACH
RESORT AND SPA LIMITED
Third Defendant

Counsel: Mr Hood for Plaintiffs
Mr Lynch for First and Second Defendants
Mr David (by telephone) and Mr Little for Third Defendant

Date: 10 October 2006

MINUTE OF WESTON J

I have before me a proceeding seeking, in effect, judicial review of the First and Second Defendants. The Plaintiffs also seek interim orders by way of declaration.

The First and Second Defendants have applied to strike out the Plaintiffs’ application seeking interim orders.

The Third Defendant is in the process of filing an application that the Plaintiffs provide security for costs.

I met with counsel today in Chambers to discuss the substantive proceeding and the various applications.

I have ascertained that time is available (2 days) to hear the substantive judicial review application in the week beginning 11 December 2006. Because this is a judicial review it will proceed on the basis of affidavit evidence only. Witnesses will not be called to give oral evidence.

I direct that this hearing be given a priority status and that the hearing proceed as early as possible in the week beginning 11 December 2006.

On the basis of the priority fixture being allocated, Mr Hood understands that I will adjourn his application seeking interim relief sine die. I so order. Leave is reserved to the Plaintiffs to bring on their application for interim relief on 3 days notice if that is required.

I discussed a timetable with counsel. I suggested that counsel confer and agree a timetable between themselves. Having given the matter further thought I believe I can fix a timetable and I now do so. I reserve leave to counsel to apply to vary it if required.

Mr Hood now needs to reconsider his statement of claim and his evidence. He has until 20 October 2006 to do so. If possible, he is to complete this task earlier. If necessary, he will then file an amended Statement of Claim and any further evidence. If he decides not to amend he should advise the Defendants of that.

At the same time, Mr Hood will also file a notice of opposition and any evidence in opposition to the application seeking to fix security for costs.

The Defendants will have 14 days after receiving any amended pleading from Mr Hood to file their Statements of Defence and affidavit evidence. Leave is reserved to them to seek further time if required. At the same time as lodging its Statement of Defence the Third Defendant is to file any reply affidavits relevant to the application to fix security for costs.

The Plaintiff then has 7 days to file any substantive affidavits in reply.

For the avoidance of doubt, these directions replace the earlier timetable fixed by the Court.

Mr Lynch’s strike out application is adjourned sine die with leave to bring it on if Mr Hood’s interim application is also brought on.

Because this is a judicial review application, I am reluctant to order discovery. Mr Lynch has said, however, that if asked it is likely that his clients would provide particular discovery on an informal basis. Accordingly, I leave discovery to the parties with leave to bring it before the Court if necessary.

So far as the application to fix security for costs is concerned, I have indicated to counsel my preliminary view that, because this is a judicial review application, I will be more reluctant to order security than would usually be the case. Mr David will consider any opposition he gets from Mr Hood on the topic and take instructions. If there needs to be a hearing on the application then it should be referred to me on the papers or to convene a telephone conference if required.

I recognize that there may need to be a degree of cooperation between counsel to get this matter to a hearing in December. I urge counsel to work together to ensure that this matter is ready for hearing.

JUDGE