Hearings: process and protocol
The Environment Court is a formal setting, and as such can seem impersonal and intimidating. The more you understand what is happening the better your experience will be.
Courts and judges have slightly different ways of organising hearings, exchanging evidence, and also different responses to tikanga Māori.
Make sure you understand any instructions about timetables, rules for exchange of evidence, and requirements for translators that you are given at mediation sessions, callovers and judicial conferences. These are seldom flexible without good reason and good notice.
How might hearings be run in the Environment Court?
The Environment Court has some flexibility as to how proceedings are run. This may be explained at judicial conferences before the hearing. The Court might decide to hear two or more proceedings together if they relate to the same subject matter.
In general, the Court will ask the person who lodged the appeal to state his or her case and then give evidence to support it. This is usually in the form of reading a typed statement, although the Court may require evidence to be given orally by question and answer. The parties that support the appellant might be asked to present their submissions at this stage.
The Court can then ask the respondent to present their case. The other parties who have indicated that they would like to appear against the appellant will also have their chance to do so. The appellant may then have the opportunity to reply to matters raised by the other parties. New material cannot be introduced at this stage, and it is only an opportunity for response, not for restating your case.
Each party can ask relevant questions of those giving evidence for other parties. This is called cross-examination. The Court itself can also ask questions at any stage of the hearing.
What can be used to support my case?
Because the Environment Court generally re-hears all matters considered by the council, you should present to the Court all material which went to the council. The following are terms that may be used to describe what you can use in presenting your case.
- Submissions: legal arguments that are not given under oath. These do not need to be written, but written submissions may be more convenient for the Court.
- Evidence: factual information or expert opinion given under oath by people with relevant qualifications, experience and knowledge. Witnesses may be cross-examined. Evidence must be in writing and should be clear and concise.
- Exhibits: documents such as photographs, maps or plans included in evidence. If you quote or refer to documents in your evidence you should provide original copies.
- Expert witnesses: may be used to give evidence at the hearing. Expert evidence is given on such matters as noise, traffic, public health, Māori cultural matters, and ecology, amongst others. Experts have a code of conduct, which is set out in the Environment Court's Practice Notes. During the case management stage, you should be careful to lodge and serve a statement specifying what statements or facts in the council's or requiring authority's decision you admit. If any party is required by another to prove undisputed facts, this will be relevant in fixing an award of costs.
Environment Court to have regard to decision being appealed
The Environment Court must have regard to the decision that is being appealed. The Court is given explicit powers to accept evidence that was submitted at the consent authority hearing and to direct how evidence is to be given to the Court. This enables the Court to take evidence as read.
How should I conduct myself in Court?
If you choose to present your own case to the Environment Court there are some protocols you should follow leading up to and during the hearing. The Environment Court Practice Notes can help you prepare.
Unless the Court directs otherwise, you must exchange copies of all evidence with every other party no later than five working days before the hearing, or let them know where the evidence can be found if it is not practical to provide a copy. If this does not happen the hearing can be adjourned and you may have to pay costs. Leave will need to be sought to call the witness and failure to comply will need to be explained. Leave may be refused. You must also provide four copies of your evidence to the Environment Court.
The Court prefers that, if required, any witnesses are summoned by parties no later than 10 working days before a hearing.
The following are some points to consider when preparing and presenting your case.
Prepare written statements
While there is provision for hearing oral evidence, it is usual for this to be taped, translated (if needed) and transcribed for the Court so there is a permanent record. This means there will also be a delay whilst the transcriptions are circulated before the next part of the hearing.
Inform the Court of any special circumstances
An example of special circumstances may be that you need to use te reo Māori in your evidence. You would need to explain this to the Court before the hearings so an interpreter can be arranged. Be aware that the Court will require translation as your witness speaks and this can be very distracting for the speaker. Sentences and flow will be broken.
Your case may also be heard on marae or in a place other than the Court, but you will need to get the agreement of the other parties and make your request to the Court well in advance for this to occur.
Study the case law
You should carefully study the case law related to your own situation. Some knowledge of the findings of previous cases can help you focus your own case.
Introduce your case
You may only have one opportunity to address the Court. You will be expected to state your case in opening. You should outline the circumstances of the case and the nature of the evidence to be called. You will need to state the resource management factors relevant to your case, and the legal principles upon which you rely.
Address the Court appropriately
Judges are referred to as 'Your Honour'. The Commissioners are addressed as 'Mr Commissioner' or 'Madam Commissioner'.
Follow the instructions or advice given by the Court
During the hearing you should follow any advice given to you by the Court or its officers. They will try to ensure everyone understands what is going on.
Organise your evidence
Your case should tell a story. You should set out your witnesses like chapters and avoid duplication. You should keep your presentation focused and uncluttered and avoid repetition. Material that is not directly relevant only serves to frustrate the Court and other parties.
In terms of physical evidence, all exhibits, including photographs and other visual presentations, should be presented in a practical and manageable form. For example, photographs should be separately mounted and identified. A bundle of documents, or a series of photographs, should be presented in a folder or booklet. Make sure you clearly reference any physical evidence, such as the date, time, make of camera and lens size for any photographs used.
In preparing for the hearing, you are expected to cooperate with the other parties to provide an agreed statement of facts and issues and an agreed folder of documents.
Choose your witnesses carefully
You need to consider how each witness helps your case. If a witness does not add anything to your story then leave that witness out.
Brief your witnesses
Make sure your witnesses are clear about the key issues of your case, and how they are contributing to it. Sometimes hearings can be stressful and emotions can run high. You, and your witnesses, should try not to be distracted by criticising other witnesses or the other parties. Focus on ensuring that your own case is presented clearly to the Judge and Commissioners.
Speak clearly
When you read written statements you should speak clearly and at a speed that allows the Court to take notes. Practise reading your written statements before the hearing starts.
Help the Court to understand
You should explain and provide details about the evidence that you present to the Court. For example, the Court will want to try to define the boundaries of the areas you talk about. Any maps you can produce which help the Court to understand the physical dimensions of an area will help your case.
If you do refer to exhibits such as maps remember to give helpful verbal directions so your evidence makes sense to the Court during and after the hearing. Try to use phrases such as 'in the top left corner of exhibit 3'.
As English is the language used by the Court, it is important that you carefully explain any non-English words that you use in your written statements and verbal answers. This is so the Court understands your interpretation and does not substitute one of their own or one from another witness.
