At the hearing
- Coming to court
- The Bench
- Appearing in court (court procedure)
Before every Court hearing the Court will issue a notice of hearing. The Notice will set out the time you need to be at Court, and where you need to go. It will have the Court address and phone number on it. The Environment Court does not always have its hearings in a courthouse, and sometimes uses spaces like conference rooms, hotel facilities, or District or Regional Council offices. If you are unsure about this, you can ring and check with the Court.
The Court does not provide parking, so you will need to make your own arrangements.
If you need to take anything with you to Court, your lawyer or the Court will tell you before the hearing.
You must turn your mobile phone off before going into Court.
If the Court hearing is to take longer than half a day, the Court will take a break for lunch. The Court will often also take a morning & afternoon break.
If something unexpected happens and you know you will be late or cannot attend, ring your lawyer or the Court immediately.
Parties before the Court are usually represented by lawyers, but you can be represented by someone who is not a lawyer or you can represent yourself (appear in person).
Environment Judges may sit alone to hear some kinds of cases, but for appeals about plans and resource consents, the Court is usually composed of one Environment Judge and two Environment Commissioners.
The rows of tables facing the Court are for everyone who plans to speak at the hearing. If you are unsure of where to sit please ask the Registrar.
When the Judge enters or leaves the courtroom, you must stand. Otherwise, you remain seated during the course of the hearing. You will notice counsel (lawyers) bowing to the Court; this is something that members of the bar perform as part of protocol. There is no need for anyone else to do this.
If you have a lawyer, they will speak on your behalf. If you have any questions or want the Judge to know something, you should discuss this with your lawyer before the hearing or during a break.
The Registrar will call the case and ask for appearances. At this stage the lawyer or representative for each party will stand and introduce themselves. If you are a representative, you should stand, and clearly state your name and the party you represent (or that you represent yourself) and also what kind of party you are (for example, section 274 party).
Hearings generally proceed in the following order:
- The appellant/applicant presents their case first
- Followed by other parties (respondent and s274 parties)
- A chance for reply is given to the appellant/applicant
This order may vary for a range of factors, and will often be discussed and decided when Court commences.
Each party, when presenting their case, has the opportunity to start with their legal submissions. These will set out the party’s contentions to the Court, and will tie in with the evidence that will be called to support their case. These submissions in their written form are given to the Judge and the Commissioners (but can be expanded on when the party is presenting them). There should be four copies of these presented to the Court, unless directions have specified otherwise in the lead up to that individual hearing.
After submissions, the party then has the chance to call witnesses.
If you are going to be a witness please consider whether you would like the Oath (hand placed on Bible - religious) or Affirmation (without Bible - non-religious). The Registrar will talk you through this.
Unless you are in the witness stand you are required to stand when addressing the Court.
If documents are to be presented to the Court please make sure you have enough copies for the Judge, Commissioners and Registrar as well as the parties in the Court. All documents are to be handed to the Registrar to distribute.
All Environment Court hearings are recorded and transcribed. If you are a party to the proceedings you will be provided with a copy once transcription has been completed.
It’s very important that you speak clearly into the microphones. This will ensure everything you say is transcribed accurately.
Parties with legal representation will usually prepare legal submissions, which set out the party’s contentions to the Court, and foreshadow the evidence that will be presented – evidence is then given by witnesses who are available to be cross-examined by any party that wishes. The Court will often have questions for witnesses in addition to the cross-examination.
Participants who don’t have lawyers can still call evidence. The Court will often put some controls around that in terms of timing or to avoid repetition, but will usually let self-represented participants ask questions that are clearly important to them or relate to effects on them.
The Court can receive any evidence it considers appropriate to receive. It is not bound by rules of law surrounding evidence (such as the hearsay rule, and the provisions of the Evidence Act 2006, although it will still have regard to those matters). The Court can give directions about what evidence it wishes to hear (for example, it can call for anything to be provided in evidence which it considers will assist it to make a decision or recommendation, and can also call before it a person to give evidence who, in its opinion, will assist it in making a decision or recommendation) and how that evidence should be presented, and can issue witness summons.
Expert witnesses have a duty to the Court to be impartial and to assist the Court impartially on matters within their area of expertise.
No person may, without reasonable cause:
- fail to appear in accordance with a summons issued by the Court, or fail to produce anything required by a summons
- refuse to be sworn in or give evidence at proceedings before the Environment Court
- refuse to answer any questions put by a member of the Environment Court.
In refusing to answer questions, sometimes witnesses are concerned about confidentiality and that the answer to a question might reveal commercially sensitive information. In such cases, the Court can clear the courtroom of the public, and even other parties (or perhaps just leaving counsel) and make orders to preserve confidentiality. If a witness evades a question (which is more common than refusing to answer completely), then that usually makes them seem less reliable and the Court will be inclined to give that evidence less weight.
Where evidence has been exchanged in advance, the relevant witness will be sworn into the Court (they can either swear or affirm their evidence). If the Court has had the opportunity to pre-read the evidence, the witness will then be instructed to answer questions of the parties (that is, cross examination) and then questions from the Court. If the Court has not pre-read the evidence, or if it’s very short, it may be read in Court before cross-examination. Usually a party will call each of their witnesses in turn. However, sometimes, all experts in a particular field (for example, noise) can be called together in what’s known as “hot tubbing”.
Where cross-examination has occurred, a party can “re-examine” their witness. Re-examination has to relate to questions that were asked in cross-examination and aims to get a full answer from a witness, or an explanation for the answer that they gave.
Parties can present evidence that’s already been given at a council level hearing in the Court. Often Court evidence will be largely based on evidence that has been given previously, but updated to address issues that may have been raised at a council level hearing.
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