Wilkinson Kate: Resource Management (Security for Costs)  Amendment Bill — First Reading 
Wilkinson Kate: Resource Management (Security for Costs)  Amendment Bill — First Reading 
[Volume:631;Page:3589] 
KATE WILKINSON (National) 
: 
 I move  
That the Resource Management (Security for Costs) Amendment Bill be now read a first time. 
 In seeking support for this bill to be referred for consideration by a select committee—and I will move at the appropriate time that it be considered by the Local Government and Environment Committee—can I emphasise that the bill is not about protecting developers and business magnates but about reducing frivolous and vexatious claims that have absolutely no place whatsoever in our judicial system let alone in the Environment Court. The bill merely reinstates the provision that was removed in 2003 that allowed the Environment Court to make an order requiring a party to give security for costs. Such an order is available under other jurisdictions and I suggest that the Environment Court should be no different. 
The Resource Management Act Amendment Bill 2003 which removed this provision was intended to “directly improve the efficiency of the Environment Court”. My question is how does allowing frivolous and vexatious claims actually improve the efficiency of the Environment Court? It does not. Allowing courts to order security for costs would discourage frivolous and vexatious claims thereby actually encouraging that elusive efficiency so often touted as an important requisite of resource management proceedings. 
The honourable member Sue Bradford yesterday referred to a bill that had not had the public scrutiny it deserves. Well to be consistent neither did the 2003 amendment bill that removed the power of the Environment Court to order security for costs. At that time there was much criticism of the process and the power to scrutinise the bill was denied—we should not let that happen again. All I am asking for now is that members be given the opportunity to scrutinise the bill. To coin a phrase I could ask that there be one law for all bills. If the select committee decides it is not an issue then so be it. But if it decides that the bill is in the interests of justice for all then no one is the loser by supporting it going to the select committee. 
History can be a great teacher. Three years ago the then Minister for the Environment who was obviously concerned about the problems with the Resource Management Act actually said: “I intend to work … to achieve positive outcomes such as reducing even further the backlog at the Environment Court and removing unnecessary impediments to major roading and energy proposals.” What has happened since then? For 3 long years nothing has happened. Auckland is still in the dark and we still have major roading problems and major energy problems. Three years ago there were energy stations that needed to be built. Three years ago there were roads that needed to be built. Three years later those same roads and those same energy stations still need to be built. And the Resource Management Act still needs fixing. 
This bill is not the panacea of all Resource Management Act ills by any means but it is a start. How often do we hear that the Resource Management Act needs reforming and that it is the handbrake to progress? Only yesterday Transpower referred to Resource Management Act delays being the cause of transmission lines to Auckland not being upgraded. This bill is simply one measure to reduce vexatious and frivolous claims that can delay proceedings and progress unnecessarily. More important it imposes a discipline on appeal proceedings and makes groups whether they be residents’ associations incorporated societies or otherwise focus on the merits of the case. If a claim is spurious then claimants may be ordered to put their money where their mouth is. If their claim is reasonable then they will have nothing to fear from this amendment. 
A person may have a personal vendetta against a neighbour who wants to erect a double garage. The garage deviates slightly from the rules and resource consent is required. For no good reason whatsoever except to be a nuisance the neighbour objects to the application. The neighbour delays the process and increases the costs for what should have been a simple matter. Is it fair that one aggrieved person can totally stymie a process without any come-back whatsoever on that person? It is only fair that such people—if the court so decides—are required to put their money where their mouth is. That is fair that is justice and that is common sense. 
It is interesting to note that when the original provision allowing security for costs was removed from the Resource Management Act there were concerns. Three years ago United Future stated: “One part of the Resource Management Amendment Bill (No 2) that United Future is particularly unhappy with is the removal of the power of the Environment Court to require security for costs from individuals or groups it considers vexatious. This is not a power the Environment Court has used often. In fact in its entire history it has only required security for costs from objectors approximately seven times.” I understand that that figure now 3 years later is still only eight times—although one of those parties against which security for costs was ordered was the Hawke’s Bay branch of the Green Party. 
I also note that when the amendment legislation removing the provision for ordering security for costs was passed 3 years ago New Zealand First voted against that amendment. It is pleasing to note that that is still New Zealand First’s policy I understand—because it is posted on its current website—that “… vexatious litigants will be able to be identified and treated as such.” I therefore seek New Zealand First’s support for this bill. In fact throughout the various readings of the 2003 bill that removed the ability of the Environment Court to order security for costs there was not one mention—not one—from any speaker on either side of the House extolling the virtues of that amendment. National and other parties objected to it at the time but the Government did not mention it once. Not even the Minister made any mention of it at all. No one overtly supported that amendment. 
An order for security for costs is not made lightly in any jurisdiction and as I have stated it has been made in the Environment Court eight times in total and only once in the last 3 years. Case law provides the precedents. The rules which are well established illustrate a very rigorous and robust test is needed before such an order is made. Those rules will not change nor will they be diminished by this bill. 
The majority of applications for security for costs have in fact been declined but there are some instances where such an order is justified. Factors taken into account before making such an order include the merits of the case the means of others who may be able to assist the conduct of the parties whether the application is oppressive the public interest—“regard is to be had for the public interest aspect of the litigation brought by a plaintiff”—and whether there are grounds for thinking the defendant is using the application oppressively to prevent the applicant’s case coming before the court. Those factors will not be affected by this amendment. It is important to note that an order for security for costs is not designed to deprive a party from its right to bring or defend a claim and that overall balance is to be maintained in the interests of justice. 
This bill is not about depriving anyone of a say in court whatever that person’s circumstances may be. It is not about who has money and who does not; it is about justice and justice only. But it is injustice to remove proper safeguards without any recourse and that is exactly what has happened here. By reinstating the court’s ability to order security for costs this bill is merely restoring the safeguard against frivolous and irresponsible appeals whether by residents’ associations concerned citizens or even trade competitors. It is a backstop. 
Supporting this bill through its first reading would allow the select committee to scrutinise it properly—to hear submissions and examples of where progress has been stymied unreasonably and with no recourse where innocent property owners have been lumbered with a costly and lengthy procedure and where indeed orders for security for costs have been declined. I repeat that this bill is not about developers. It is not about building magnates. It is not about denying or reducing the rights of the public to bring evidence to hearings as has been suggested. Some arguers even start from the premise that the community is right and the developer is wrong. That may sometimes be the case but reinstating the Environment Court’s ability to order security for costs will not detract from that. 
This bill will not protect developers and builders any more than it will protect ordinary individuals. This bill is not about denying families the right to object. It does not take away the right to object—to have a say. It does not allow applicants to ride roughshod over communities or individuals. This is a natural justice issue. It is about preventing the unjustified stymying of our legal process with no possibility of recourse. I seek the support of the House in allowing this bill to be properly scrutinised at select committee level.