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4th set of Directions and Advisory Notes subsequent to Protocol of 25 March 2020

4th set of Directions and Advisory Notes subsequent to Protocol of 25 March 2020

Under Alert Level 1: Information for parties, lawyers, witnesses and other participants

Principal Environment Judge Laurie Newhook
10 June 2020

New Zealand Courts commenced operating under COVID-19 Level 1, on 9 June 2020. The new level may last for a significant time and carries continuing recommendations for health and hygiene practices, but not limitations on numbers of people gathering, or any requirement for social-distancing. These new Directions and Advisory Notes are designed to meet the new Government requirements announced on 8 June.

The Environment Court is now processing, mediating and hearing all classes of cases in courthouse and non-courthouse premises and with some continuing electronic activity. The latter will be appropriate where travel arrangements are problematic (particularly where witnesses are based overseas) or where people suffer potential medical vulnerability. The Court is acting to reduce the backlog resulting from earlier higher levels of alert.

All cases listed for hearing up to the end of May 2020 were previously adjourned and timetables for preparation for those hearings suspended; but have for some weeks been again under active case management.

Hearings are being scheduled in all classes of cases for several weeks in June, July, August and beyond.

Where hearings and ADR and other events occur in courthouse or non-courthouse premises, sanitary cleansing will occur, consistent with safety as first priority.

Prioritisation of the Court’s resources are seeing Judge-led issues conferences being held in place of mediations in some cases, although independently-facilitated conferences of expert witnesses remain important. Mediation resources are finite and unevenly distributed around the country, so in some cases, mediation is unlikely to be a priority if resources are stretched at the time. Instead, the Presiding Judge may, at a pre-hearing conference, require parties to identify the key issues capable of influencing outcomes, issue directions for expert conferencing and set a timetable for preparation for hearing. At times when Commissioner resources are stretched, parties are asked to give thought to holding privately-run mediations, remembering that good preparation and fairness to all are important. Proposals for these should be the subject of Judge-led conferences and directions.

During Levels 4 and 3, groups of cases were chosen for pilot mediation activity by remote means. Members of the Court prepared draft directions to parties in such cases.  The Commissioners worked with the parties concerning methodologies and electronic platforms, and mediations that were concluded proceeded very successfully in a focussed and time-efficient way. Advantage will continue to be taken of lessons learned in these endeavours where remote participation is desirable. New platforms may be introduced from time to time, particularly ones that enable the Court and parties to work efficiently with graphic materials.

Hearings re-commenced as from early May, principally of priority matters of the kind described above. The statutory quorum for hearing of most cases being a Judge and 1 Commissioner, that will be the composition of the bench for the foreseeable future rather than the traditional one Judge and 2 Commissioners. Where appearances in Court are involved, steps are taken as described in paragraph 5 above. Nevertheless, against the possibility that new Covid-19 cases could occur within an area served by a courthouse or other premises in which we conduct hearings, we will rely on official health advice. Similarly if the country or a region reverts to a higher Alert Level. If necessary, steps would be taken to reduce in-person attendances to protect those appearing or working there; the extent of any reduction would depend on all circumstances and official advice or directions.

It is reiterated that the Principal Judge has issued a blanket waiver suspending the requirement to file paper originals and copies in court meantime. This remains in force, and consideration to it becoming a permanent feature is occurring.

Staffing of registries is back to near full strength, although some staff are in the vulnerable category and will continue to work from home as will others with different needs and pressures. Contact can readily be made with the Court by telephone or email to the case, hearing, or mediation manager handling any file, or if in doubt, to the Deputy Registrar in the relevant registry noted below.

The Environment Court’s public counters remain closed for filing. In case any party does not have the ability to file by email, postal mail will be regularly checked.

 Finally we stress that for hearings or ADR events occurring during Level 1, there will be the following features:

  • The Ministry of Justice has instituted rigorous cleaning regimes that include deep cleaning measures in key areas in courthouses, especially in high traffic areas.
  • Face masks and gloves may be worn.
  • Documents cannot be handed up or exchanged on paper among parties, but must instead be lodged and exchanged by email, preferably in advance of the hearing.
  • The Ministry will also be monitoring the provision of cleaning supplies such as soap and towels, and ensuring the availability of key products such as hand sanitiser.
  • A contact tracing register will continue to be employed. The paper version currently operated may soon be replaced by use of the Government QR contact tracing app.
  • An officer charged with ensuring all matters of hygiene may deny entry to anyone who is unwell, experiencing Covid-19 symptoms, or required to be in quarantine or self-isolation. Participants may be questioned about such things on entry.
  • All cleaning and other practices listed here will be kept under constant review and may change as necessary.

Counsel or other representatives are expected to brief parties, witnesses and other participants on all these matters.  Also to report to the nearest Deputy Registrar any perceived shortcomings in arrangements for cleaning, hygiene or safe practices.

 Contact details for Deputy Registrars

 Auckland:       Gemma Carlyon, 027 446 7193 gemma.carlyon@justice.govt.nz

Wellington:    Rachell Staunton, 027 256 9494 rachell.staunton@justice.govt.nz

Christchurch: Michael Tinkler, 027 280 8135 michael.tinkler@justice.govt.nz