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Coe v Vaiea Farm Ltd [2018] NUHC 2; Civil Division 4 of 2017 (20 July 2018)

JUDGMENT OF REEVES J

Copies to:
M Starling, Coral Chambers, Makefu
J Kamupala, Crown Law, Alofi South

Introduction

[1] This decision concerns the taking and bottling of water by Vaiea Farm Ltd, a Government-owned company in Niue.
[2] The applicant claims that the labels on the water bottles are false and misleading, and that the respondent has failed to comply with the legislative requirements for the taking of the water. He says the respondent’s actions could be damaging to the reputation of Niue and could impact on the supply and quality of Niue’s water. He seeks a declaratory judgment that the advertising is misleading and the bottles should be re-labelled, along with an interlocutory injunction until the compliance matters have been addressed.
[3] The respondent denies the allegations and counterclaims that the actions and unfounded allegations of the applicant amount to reputational damage and undermine the efforts of the respondent to market its product overseas. The respondent seeks a retraction of all unfounded claims and for the applicant to pay damages.

Procedural history

[4] Mr Coe filed the application for declaratory judgment on 14 August 2017, pursuant to s 107 of the Niue Act 1966. He then filed the application for injunction on 30 October 2017, pursuant to s 71 of the Niue Act 1966.
[5] The applications were subsequently served on the respondent and the Crown and set down for a call-over. Directions were issued on 7 November 2017 granting leave for the respondent or the Crown to file and serve any further interlocutory applications prior to the call-over.
[6] The hearing was then held on 15 November 2017. At the conclusion of the hearing, I indicated that the application for a declaratory judgment would be dismissed and the decision regarding the injunction would issue in due course.

Issues

[7] The key issues for determination are whether a declaratory judgment as sought can be made, and whether an injunction should be granted.

The application for declaratory judgment

Applicant’s submissions

[8] Mr Starling, counsel for the applicant, submitted that the wording on the label of the respondent’s bottled water is false and misleading. He says, if the bottled water is exported, this could damage the reputation of Niue by exposing it to criticism, adverse comment and litigation.
[9] Mr Starling submitted that the respondent company pumps water from the ground by way of a bore on the Vaiea Farm property. The water is taken from a source that provides all of the fresh water for Niue. He says the bottle label indicates a long list of trace ingredients, which include magnesium, sodium, calcium, nitrates, sulphates, potassium and chloride. The water can be classified as hard, based on the high level of calcium carbonate in the water, however, what is concerning is the high levels of magnesium, nitrates and sulphates, which are not naturally occurring and arise from the use of fertilisers and animal waste product.
[10] Mr Starling submitted that to refer to the water as “100% pure” and then list ingredients which are pollutants is inaccurate and highly misleading.
[11] Mr Starling further submitted that other claims on the label that the water is “some of the purest water in the world” and has a “refreshing taste” are also misleading, given that the water available in Niue is of poor quality and most Niuean people purchase imported water from New Zealand, due to the taste of the local water. He pointed to a notice issued by the Niue Health Department for residents in the village of Makefu to continue boiling their water for drinking.
[12] In terms of the description of the bottled water as “artesian water”, Mr Starling noted that a standard definition of an artesian aquifer is “a confined aquifer containing groundwater under positive pressure. This causes the water level in a well to rise to a point where hydrostatic equilibrium has been reached”. By contrast, he says the bottled water is pumped from a bore 50 metres below the surface and is then filtered and given UV treatment before it can be sold. He argued therefore, that the water being bottled is not artesian water.
[13] In addition, Mr Starling noted that the New Zealand Coat of Arms originally appeared on the label. He argued that the Coat of Arms could not be used in a commercial business venture and pointed to an e-mail received from the Ministry of Culture and Heritage in New Zealand, who protects the Coat of Arms from unauthorised use, advising that it may not be used by private individuals or organisations. Since then however, the Coat of Arms has been removed from the label and Mr Starling advised that aspect of the application has been withdrawn.
[14] Mr Starling argued that as the claims made on the bottle label are false and misleading, the label cannot be used in its current form and should be re-labelled.

Respondent’s submissions

[15] Mr Kamupala, counsel for the respondent, denied the allegations. He submitted that the labelling of the respondent’s water bottles is similar to the labelling of water imported from New Zealand as “pure New Zealand water” and the contents of the Niue water are also similar to those listed on the New Zealand water bottles.
[16] Mr Kamupala submitted that the elements contained in the water appear naturally within water in Niue. He referred to the documents provided relating to a 2010 analysis of groundwater in Niue, conducted in partnership by the Niue Department of Health, the World Health Organisation and the South Pacific Applied Geoscience Commission, along with the findings of Hill Laboratories in New Zealand, who tested samples of water extracted from bores, water pipes and UV filters in Niue, including the Vaiea bore.
[17] Mr Kamupala submitted that the information obtained indicates there is nothing wrong with the water being extracted and that it comes within the specifications required in New Zealand for drinking water. The respondent therefore refutes the allegations regarding the purity of the water.
[18] Mr Kamupala further submitted that the water in Niue by definition is artesian water, as it seeps out of the ground and flows naturally into the sea. The fact that the respondents remove the water prior to it reaching the sea does not alter the nature of the water and it is therefore part and parcel of the same definition of artesian.
[19] In terms of the grant of a declaratory order, Mr Kamupala argued that the applicant cannot rely on s 107 of the Niue Act 1966 and he has no legislative rights in this matter. Therefore, the applicant’s position must fail.

The Law

[20] Section 107 of the Niue Act 1966 provides:

107 Declarations

A person may apply to the High Court for a declaration where the applicant –

(i) has done or desires to do an act the validity, legality, or effect of which depends on the construction or validity of an enactment or of any document; or

(ii) claims to have acquired any rights under any such enactment or document, or in any other manner to be interested in its construction or validity; or

(iii) wishes to have a formal statement as to the existence or non-existence of a marriage or the validity of a dissolution of marriage.

[21] In Sioneholo v Levi, Coxhead J confirmed that the Court has jurisdiction to issue a declaratory judgment on one of the three grounds set out in s 107.^[1] He further noted that the Court also has discretion to refuse the issue of a declaratory judgment in certain circumstances.
[22] In that particular case, the Court dismissed the application on the basis that the applicant had not established any of the grounds in s 107. Further, the application did not seek relief but an answer to a hypothetical situation, and there was no live issue or any public interest to justify proceeding with the declaration. The Court noted:^[2]

The broad jurisdiction to seek a declaration without compensation or other relief is normally for the purpose of declaring legal rights of parties in litigation before the Court, not to declare the law generally or give advisory opinions or a declaration with no utility.

Discussion

[23] The key issue is whether a declaration under s 107 can be made and if so, whether the advertising on the label is false and misleading.
[24] Section 107 is expressed in terms of declarations regarding the applicant’s actions or rights, rather than those of any other party (such as the respondent). In these proceedings, the applicant does not appear to be seeking a declaration regarding his own actions or any specific rights that he alleges he has.
[25] Crucially, the applicant has not established that the application comes within any of the provisions in s 107, in particular:

• (a) The applicant has not shown that there is an act done or about to be done by him, the validity, legality, or effect of which depends on the construction of an enactment or any document (s107(i));
• (b) The applicant has not claimed to have acquired any rights under any such document, or in any other manner to be interested in its construction or validity (s107(ii)); and
• (c) Section 107(iii) has no application in this case.

[26] The Court has no discretion to issue a declaratory judgment where the applicant has been unable to establish any jurisdiction to grant the relief sought, even though in this case, the relief sought by the applicant is clear and discrete, and the issue is one of public interest.
[27] Mr Starling for the applicant, conceded at the hearing that it may be hard for the applicant to establish his case under s 107, but that there was no other applicable legislative provision. I agree that s 107 is not well suited to the objective of the application. While the applicant obviously has an interest, he does not have any rights he is seeking to enforce. I therefore conclude that the application for declaratory judgement must fail, as I indicated at the hearing.
[28] For this reason, there is no necessity for me to address the merits of the allegations of the false and misleading claims.

The application for injunction

Applicant’s submissions

[29] Mr Starling submitted that the respondent began extracting water from the ground in or about 2016, for bottling and selling, but has failed to comply with the relevant legislative requirements. He argued that an injunction should be granted until such time as an environmental impact assessment has been completed under the Environment Act 2015 or the respondent has the necessary permit under the Water Act 2012.
[30] Mr Starling submitted that the well-known principles concerning the grant of an interlocutory injunction were set out by the Court in Talagi v Puletama, requiring the applicant to show there is a serious question to be tried, that the balance of convenience is in the applicant’s favour, and that the overall justice of the case supports the grant of injunction.^[3] Mr Starling also submitted that Talagi is authority for the proposition that under s 47(1) of the Niue Amendment Act 1968, the Court has jurisdiction to grant an interlocutory injunction in respect of Niuean Land.
[31] In terms of whether the Court can grant injunctive relief against a Government-owned company, Mr Starling referred to the decision of the Court in Secretary for Justice v Minister of Public Works, which held that an injunction was not available against the Government, pursuant to the Crown Proceedings Act 1950.^[4] He noted that there is no legislation in Niue which is equivalent to the State-Owned Enterprises Act 1986 in New Zealand and therefore an injunction may be available. If, however, the principles in Secretary for Justice apply, then he contended the Court is still able to make a declaration.
[32] Mr Starling argued that the respondent has not sought or obtained a permit for its activities and there is no information available regarding how much water is currently being taken or will be taken. He says that Niue relies completely on the water held within the island to provide for the needs of the country and its people, plants and animals. If the natural reservoir becomes depleted, polluted, or if there is an adverse weather event, then this could affect all those living in Niue, could devastate the economy, and could have long term consequences.
[33] Mr Starling submitted that there is a serious question to be tried, as the matter concerns the integrity of Niue’s water supply, and that the balance of convenience is in the applicant’s favour, as the respondent can recommence its operations if it can establish that there will be no detriment. He further argued that the overall justice of the case supports the grant of an injunction given the respondent is not only operating without a permit but plans to continue operating without the relevant legislative compliance.

Respondent’s submissions

[34] Mr Kamupala submitted that, while the applicant can apply for an injunction, there are no grounds on which an injunction can be granted in the present case. He denied the allegations made and submitted that the respondent’s actions have not endangered either the water reservoir of Niue or the Niuean people, and there has been no evidence provided to substantiate the applicant’s claims regarding the water bottling operation. By contrast, Mr Kamupala contends that it is the applicant who is damaging the reputation of the respondent and making it difficult for them to establish an overseas market for Niue water. For that reason, he says the overall justice lies in the respondent’s favour.
[35] Mr Kamupala made reference to “certain information that was compiled by the Niue Government and various regional organisations” in relation to the groundwater resources. He submitted that such information referred to the scope and size of the water reservoir under Niue and he argued that the amount of water the company proposes to withdraw from the total reservoir is miniscule. As such, there will be no detrimental effect on the reservoir. He further noted that the applicant could have sought the relevant information from the respondent as they have an “open-door policy” and much of the information is public record.
[36] In terms of contamination of water at the source, Mr Kamupala again referred to the results of the water testing completed and reiterated that the water meets the standards required for New Zealand drinking water. He also noted that the farm where the water is extracted does not have animals and is an organic-certified farm, which does not use fertilisers. The current problems with contamination of village drinking water are directly related to the village water storage tanks, which have not been periodically cleaned. The farm is serviced by its own water bore which is completely independent from village water supplies. Mr Kamupala argued that in the absence of any specific report raising the kind of concerns referred to by the applicant, the information, scientific research and reports gathered by the respondent should be relied on.
[37] Regarding legislative compliance, Mr Kamupala submitted that the respondent began bottling water in August 2015 and therefore under s 7(c) of Environment Act 2015, that Act does not apply. In addition, Mr Kamupala argued that, although the legislation was enacted in 2015, the Environment (Development Consent and Environmental Impact Assessment) Regulations 2017 were only recently developed and the relevant Government department has not been in a position to administer the legislative provisions. He argued that the reality is that the department currently does not have the administrative capacity to issue developmental consents.
[38] At the hearing, Mr Kamupala accepted that under the Water Act 2012 a permit is required for the extraction of water and that a process for the grant of such permit is set out in that Act. He submitted that the respondent has paid the relevant fee for a water extraction permit for the last three years and by all accounts the Government department concerned has not objected to such water extraction for at least 10 years. Further, while a permit has not been issued to the respondent, this is because the department does not have the administrative capacity to issue such permits. In that respect, he says the legislation does not reflect the current practice of the department.

The Law

[39] The application for injunction has been filed under s 71 of the Niue Act 1966, which states:

71 Procedure so far as not governed by rules of Court

Subject to any enactment, the practice and procedure of the High Court in the exercise of its civil and criminal jurisdiction shall be such as the Court thinks in each case to be most consistent with natural justice and convenience.

[40] This is a general provision which provides that where a procedure is not governed by the rules of Court, the Court is able to regulate its own practices and procedures in accordance with natural justice and convenience. There is no specific provision in the Niue Act 1966 allowing the Court to issue injunctions.^[5] While Mr Starling argued that s 47(1) of the Niue Amendment Act (No 2) 1968 gave the Court jurisdiction to grant an interlocutory injunction in respect of Niuean Land, that provision clearly refers to the jurisdiction of the Land Court, being the Land Division of the High Court.
[41] However, the applicant seeks an injunction as a remedy for the respondent’s failure to comply with legislative requirements, specifically, those of the Water Act 2012 and the Environment Act 2015. Therefore, the provisions of those Acts are relevant.
[42] Section 58 of the Water Act 2012 provides that any person may bring proceedings in the Court for an order to prevent, remedy or cease a breach of that Act. Section 59 also provides:

59 Orders of the Court

(1) Where the Court is satisfied that a breach of this Act has occurred, or that a breach is likely to occur unless prevented by an order of the Court, it may make any order it thinks fit to prevent, remedy or cease the breach including enforcement orders, declarations and injunctions.

(2) Where an injunction or other remedy is sought concerning any activity governed by this Act, the Court must order that person who brings such proceedings to give an undertaking as to damages or to provide security for costs.

(3) The Court must not award costs against a person who brings proceedings to stop any activity or who asks for any order requiring compliance with this Act unless the Court is satisfied that the person has acted vexatiously or maliciously in bringing the proceedings and that the proceedings have no merit.

[43] Section 31 of the Environment Act 2015 provides that the Court may grant an injunction as a remedy for an environmental contravention as follows:

31 Civil remedies for environmental contraventions

(1) Any person (the applicant) may institute proceedings in the Court that seek all or any of the relief set out in subsection (2) against any other person (the defendant) if the defendant has allegedly committed an environmental contravention.

(2) The Court may grant all or any of the following in relation to proceedings instituted under subsection (1):

(a) an injunction

...

(c) a declaration that the defendant has committed the contravention

...

[44] An environmental contravention is defined in the Act as “a contravention of any of sections 14-22”. This includes activities affecting freshwater supplies set out in s 16. The definition of “freshwater supply” includes an underground body of fresh water, an aquifer, and a bore or well connected to an underground body of fresh water or aquifer.
[45] Therefore, while there is no specific provision under the Niue Act 1966 which gives the Court jurisdiction to grant an injunction generally, both the Water Act 2012 and the Environment Act 2015 give the Court jurisdiction to grant an injunction as a remedy for breaches of those Acts. If the applicant can establish such breaches, an injunction is available.

Discussion

[46] The issues for discussion are:

• (a) Does the Water Act apply? If so, has there been a breach of that Act?
• (b) Does the Environment Act apply? If so, has there been a breach of that Act?
• (c) Should an injunction be granted?

The Water Act 2012

[47] The purpose of the Water Act 2012 is to provide a framework for the sustainable, efficient and coordinated development, extraction, protection, management and use of the water resources of Niue, for present and future generations. The Act also sets out a number of water management principles.
[48] Pursuant to s 5(1), the right to the use, flow, piping, storage, sale and control of all groundwater is vested in the Crown. Section 5(2) provides that the Crown’s water rights prevail over any authority conferred by or under any other Act or law, “except to the extent to which this or any other written law expressly provides”. From this, it appears that the Crown is subject to the provisions of the Water Act 2012.
[49] Part 4, Division 1 of the Act makes provision for the construction of bores. It provides that only the Public Works Director or an authorised officer can construct, alter, repair, maintain or decommission any bore for the purpose of extracting water. Any other person must apply to have a bore constructed.^[6]
[50] Division 3 of the Water Act 2012 concerns the extraction and use of water. Section 18 provides:

18 Extraction licence

...

(2) No person, public authority or Village Council shall cause or permit any water to be extracted or used from any water works, other than public water supply water works or rainwater capture water works, except as authorised by the Minister responsible for water supply and with Cabinet’s approval and under the conditions of an extraction licence issued under this division.

...

(4) Subject to any conditions specified in the licence and the provisions of this Act, an extraction licence entitles its holder to:

(a) extract the volume of water over time, from the work, and at the location specified in the licence, and

(b) use the water so extracted for the purpose specified in the licence.

[51] Section 19 directs an application for an extraction licence to be made in writing and lodged with the Public Works Director, accompanied by the prescribed form, fee, plans and descriptions, together with a statement of the purposes for which it is proposed to use the water. The Public Works Director can also require additional information.
[52] Once an application is received, it must be advertised and an opportunity given for objections to be made.^[7] The Public Works Director must endeavour to resolve any issues raised by the objection before the extraction licence application is determined. The Minister responsible for water, with Cabinet’s approval, may grant the licence if satisfied of the several matters set out in s 21, and the licence will be subject to conditions as the Minister directs.^[8] The term of any extraction licence is three years but it can be renewed, amended, suspended or cancelled.^[9]

The Environment Act 2015

[53] The purpose of the Environment Act 2015 is to provide for the preservation and protection of the environment of Niue. It authorises the making of environmental standards to regulate activities that affect that environment. The environmental standards are set out in the Environment (Development Consent and Environmental Impact Assessment) Regulations 2017 (“the Environment Regulations”).
[54] Pursuant to s 8 of the Act, development consents are required for activities which will have a significant environmental impact or where required by an environmental standard. No such activity can be started or continued without first being granted development consent. An application must be made and an independent environmental impact assessment of the activity must be carried out as part of the process of obtaining development consent.^[10] Consent may be granted with or without conditions. Once an application is received, it must be advertised and time allowed for any objections.^[11] The Director must endeavour to resolve the issues raised by any objections before making a determination of an application.
[55] The Environment Regulations set out the activities for which development consent is always required. Included in that list under Food Industries is “commercial bottling of water” and under Public Works is “water bore drilling”.^[12]
[56] Section 7 of the Act states that it does not apply to any activity that has been either, completed before the commencement of the Act, authorised under the Environment Act 2003, or lawfully begun before the commencement of the Act and has or is likely to have the same effects and has not been discontinued for any continuous period of six months.
[57] Mr Kamupala argued that the Environment Act 2015 does not apply because the extraction began prior to the commencement of the Act per s 7(c). There is some conflict regarding when the extraction and bottling of water began and no firm evidence of a date. However, even if it was before the Act, there is also no evidence to suggest that the respondent “lawfully began” the activity under the Environment Act 2003 as there is no evidence they sought consent then either. It is my view, in the absence of any firm evidence to the contrary, that the provisions of the Environment Act 2015 apply to the respondent’s activities, and a development consent is required.
[58] Under the relevant provisions of the two Acts, the respondents needed both a water extraction licence and a development consent to commence their activities, which would include an environmental impact assessment. An application, when made, would need to be advertised and any objections considered.
[59] Mr Kamupala accepted at the hearing that a permit was required for the extraction of water. He submitted however that the company has paid an extraction fee for the last three years but the department does not have the capacity to issue permits and it has not objected to them extracting water for the last 10 years. Mr Kamupala also accepted that the process required for granting an extraction permit is set out in the Water Act 2012 but this doesn’t reflect the practice of the department. Effectively, he conceded that the company does not have a permit, which would make the extraction an illegal activity.
[60] Following this admission, Mr Starling submitted that on that basis, the grounds for an injunction had been made out. Given the process required for the granting of a permit, this would allow the applicant to participate in that process and raise objections. The applicant seeks an injunction until the respondent has applied for and received the necessary permits.
[61] There is very little by way of evidence before the Court, and such information as there is, is contained in the application, and the submissions of counsel. In the course of the hearing, Mr Kamupala made a couple of important concessions; first, that a licence was required for extraction of water, and that the respondent did not hold such a licence. Second, I was concerned to hear that the Public Works department has accepted extraction fees from the respondent without issuing the required permits and consents. The department’s actions are effectively condoning illegal activity.
[62] On the basis of the information and material currently before me, I cannot make any findings in relation to the allegations of misleading statements concerning the description of the water. However, I am prepared to find that the respondent is extracting and bottling water in breach of the provisions of the Environment Act 2015, and the Water Act 2012, and is prima facie engaged in illegal activity.

Should an injunction be granted?

[63] Before I can determine whether an injunction should be granted, I must first determine whether I have power to grant an injunction against the respondent, a Government-owned company.
[64] The threshold question is whether the respondent falls within the provisions of the Crown Proceedings Act 1950, which prevents the issue of an injunction against the Crown. Mr Starling referred to the decision of the High Court in Secretary for Justice v Minister for Public Works which confirmed this principle.^[13]
[65] The Crown Proceedings Act 1950 provides at s 17(1)(a) that where, in any proceedings against the Crown, such relief is sought by way of injunction, the Court shall not grant an injunction but instead may make an order declaratory of the rights of the parties. There is no definition of “the Crown” in that Act, however, s 2(2) provides:

(2) Any reference in this Act to the Crown, in relation to any civil proceedings, or in relation to any order or judgment debt or costs in connection with any civil proceedings, shall be construed as including a reference to the Cabinet or any Government department or officer of the Crown where the Cabinet, department, or officer is a party or third party to the proceedings under s 14.

[66] In accordance with that provision, it appears that Vaiea Farm Ltd, a Government-owned company, is not included in the reference to the Crown and the current proceedings would therefore not be considered Crown proceedings.
[67] I find that I have jurisdiction to grant an injunction against the respondent pursuant to the provisions of both the Water Act 2012 and the Environment Act 2015.
[68] I also take this view because the activities of the respondent, to bottle and sell water, are not strictly speaking a public function carried out in the public interest, even though the respondent is Government-owned. This is because the public function for the supply and regulation of water on Niue is separately controlled by the Public Works Director.
[69] I also note that there is no legislation which appears comparable to New Zealand’s State-Owned Enterprises Act 1986. Further, both the Water Act 2012 and the Environment Act 2015 suggest that their provisions apply to actions of the Crown.
[70] I turn now to consider whether or not to grant an injunction.
[71] As Mr Starling noted, the principles applying to the grant of an interlocutory injunction were set out in the decision of Talagi v Puletama – Part Mataaho.^[14] Although that was a decision of the Land Court, those principles remain relevant and are well settled.^[15] However, after taking account of these principles, I consider that an interim injunction is not appropriate, at this stage.
[72] I accept there is a serious issue before the Court concerning the efficacy of Niue’s water regulation, and the likely illegal conduct of the respondent in continuing to extract and bottle water without the required regulatory consents and licences. Illegal activity, and the likelihood that this has taken place over a number of years will also weigh against the respondent when considering the overall justice of the matter.
[73] However, I do not yet have sufficient information before me to safely determine the balance of convenience, in particular, the consequences to the respondents of preventing them from continuing their activities until they have complied with the law. Such information would include details of any commercial arrangements, or third-party commitments the respondent is party to, together with any other relevant information which would assist with this assessment.
[74] The other matter is that s 59 of the Water Act 2012 and s 31 of the Environment Act 2015 provide for other forms of relief such as enforcement orders, and declaratory judgements as an alternative to injunction. I want to hear from counsel as to whether another remedy would be more appropriate in the circumstances.
[75] I will also require submissions from counsel concerning the requirements for undertakings as to damages or security for costs per s 59(2) of the Water Act 2012.
[76] These issues will require further consideration by the parties, and they may wish to take further legal advice. I am also hopeful that, given my determination of some of the threshold issues in this matter, that the parties may be able to reach an agreement about how to resolve the outstanding issues of compliance.
[77] I have not made a final decision on the question of whether or not to grant an injunction. That matter is adjourned.

The counterclaims

Respondent’s submissions

[78] The respondent submitted that the applicant has made unfounded allegations regarding its water bottling operation which are damaging to their reputation and could hamper their efforts to market their bottled water overseas. Mr Kamupala argued that the applicant’s claims are essentially conjecture which he has circulated to the international media. On this basis, the respondent sought a retraction of the allegations and an award of damages in the amount of $50,000.00.

Applicant’s submissions

[79] Mr Starling submitted that no evidence had been provided of the alleged reputational damage or any resulting loss to support a claim of damages. Further, it is for the Court to decide if the assertions by the applicant are well founded or not.
[80] Mr Starling submitted that, as the respondents have already changed one part of the bottle label with the removal of the New Zealand Coat of Arms, the applicant has in part already been successful.
[81] Mr Starling further argued that the applicant sought to have these issues addressed in Parliament, however the failure of the respondent to seek approval from the relevant Government Agency made this impossible and he is now pursuing the matter in a measured and appropriate manner. Mr Starling noted that as the matters were filed with the High Court and were set down to be determined at the first available sitting, the applicant’s conduct is conventional.
[82] At the hearing, Mr Kamupala appeared to indicate that the respondents were happy to withdraw the counterclaim.^[16] Given this, and given my findings regarding the injunction application, I do not need to further consider this issue. The counter-claims are dismissed on the basis of counsel’s withdrawal.

Decision

[83] I will direct the Registrar to arrange a telephone conference to be held approximately two weeks following the release of this decision. At that conference, I will require an indication from the parties about what evidence will be filed to address the matters set out in paragraph [73] above. I will also want to hear from counsel concerning the matters set out in paragraphs [74] and [75]. Finally, I will want to hear about any steps being taken, if any, to resolve the respondent’s compliance issues. If little or no progress is being made by that time, then an alternative option may be to reconvene the injunction hearing soon thereafter.
[84] I make the following directions:

• (a) The Registrar is to arrange a telephone conference with counsel approximately two weeks following the release of this decision; and
• (b) Counsel are to file memoranda with the Registrar, 48 hours prior to the telephone conference, outlining their respective client’s position.

Pronounced at 12.30pm in Wellington, New Zealand on the 20^th day of July 2018.

S F Reeves
JUDGE

^[1] Sioneholo v Levi HC Niue, CV6/2014, 7 July 2014.

^[2] At [25].

^[3] Talagi v Puletama – Part Mataaho HC Niue (Land Division) App 11338, 20 January 2016.

^[4] Secretary for Justice v Minister of Public Works HC Niue, 04/01, 5 February 2004.

^[5] As originally enacted, s 67 of the Niue Act 1966 provided the Court with the power to issue injunctions as part of its ordinary civil jurisdiction. However, s 67 was repealed in 2004 by the Legislation (Correction of Errors and Minor Amendment) Act 2004.

^[6] Water Act 2012, s 15.

^[7] Water Act 2012, s 20.

^[8] Water Act 2012, s 22.

^[9] Water Act 2012, ss 23-26.

^[10] See also Environment (Development Consent and Environmental Impact Assessment) Regulations 2017, regs 4-12, andSchedule 1.

^[11] Environment Act 2015, s 9

^[12] Environment (Development Consent and Environmental Impact Assessment) Regulations 2017, Schedule 2.

^[13] Secretary for Justice v Minister for Public Works HC Niue, 04/01, 5 February 2004.

^[14] Talagi v Puletama – Part Mataaho HC Niue (Land Division) App 11338, 20 January 2016.

^[15] See Klissers Farmhouse Bakeries Ltd v Harvey Bakeries Ltd [1985] 2 NZLR 129.
^[16] Transcript of Court hearing, 15 November 2017 at 22-23.