Action for Environment Incorporated v Wellington City Council

[2012] NZHC 2615

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2486 [2012] NZHC 2615

UNDER  the Resource Management Act 1991

IN THE MATTER OF     an appeal from the Environment Court

BETWEEN  ACTION FOR ENVIRONMENT INCORPORATED

Appellant

ANDWELLINGTON CITY COUNCIL First Respondent

ANDWELLINGTON BADMINTON ASSOCIATION INCORPORATED Second Respondent

Hearing:         On the papers

Judgment:      9 October 2012

COSTS JUDGMENT OF CLIFFORD J

[1]      On 13 July 2012 I issued a judgment dismissing an appeal by Action for Environment  Incorporated (“AfE”) against a decision of the Environment Court granting a resource consent to the second respondent Wellington Badminton Association Incorporated (“Wellington Badminton”) to extend its facility known as Badminton Hall located on Town Belt land in the Wellington suburb of Hataitai.  I reserved the question of costs.  The first respondent, Wellington City Council (“the Council”) and Wellington Badminton, now apply for costs against AfE.

[2]      The  general  position  is  clear.    The  party  who  fails  with  respect  to  a proceeding  or  an  interlocutory  application  should  pay  costs  to  the  party  who

ACTION FOR ENVIRONMENT INCORPORATED V WELLINGTON CITY COUNCIL (Costs) HC WN CIV-

2011-485-2486 [9 October 2012]

succeeds.  As the successful parties, the Council and Wellington Badminton ask for costs of $5,452 and $4,512 respectively from AfE.

[3]      AfE argues that no costs should be awarded against it, essentially on the ground that it is a public interest group and that it brought its appeal as a matter of public interest.  In that, AfE relies on r 14.7(e) of the High Court Rules.  That rule provides that this Court may refuse to make an order for, or may reduce, costs otherwise payable under the High Court Rules if “the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding”.    Each  of  the  parties  referred  me  to  the  decision  of  Gibbs  v  New

Plymouth DC (No 2).[1]     There Justice Heath helpfully reviewed both the general

principles as regards to costs and the more specific principles relating to increased and  indemnity costs  and  the “public interest”  ground on  which  costs  otherwise payable may be reduced or refused.  The following statement of principle, referred to by Justice Heath, appears applicable:[2]

There remains the question of costs. Although the appeal is to be dismissed, the appellants were not bringing the proceedings out of any motive of personal gain.  They were pursuing the proceedings in the interest of taonga which is an important part of the heritage of New Zealand.  Because of the different views expressed by the members of the Court of Appeal on the issues raised on this appeal, an undesirable lack of clarity inevitably existed in an important area of the law which it was important that their Lordships examine and in the circumstances Their Lordships regard it as just that there should be no order as to the costs on this appeal.

[1] Gibbs v New Plymouth DC (No 2) HC New Plymouth CIV-2004-443-115, 5 October 2006.

[2] New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525-526.

[4]      In Gibbs, Justice Heath declined to accept that the case run by Mr Gibbs fell within the category of public interest justifying no order for costs.   Nor, in the circumstances  of  that  case,  was  the  Judge  prepared  to  reduce  costs.    Heath J concluded that Mr Gibbs had argued a wider case than was properly called for and that the claims that had involved most of the hearing, namely of bias or irrationality, had little prospect of success.

[5]      I conclude here first that in these proceedings AfE did represent a public interest.  The status, both in terms of relevant resource management laws and, more

generally, of Town Belt land in Wellington, is not straightforward and is an important

issue for Wellington.   To that extent, I consider this a circumstance where I may properly consider the exercise of the discretion provided by HR 14.7(e).

[6]      Moreover, I do not consider the way in which AfE mounted and conducted its appeal disentitles it – as Justice Heath found in the case of Mr Gibbs – to having otherwise payable costs reduced or refused.  Whilst AfE did cast a wide net, the legal history of Town Belt land is complex and Mr Taylor did concede at the hearing that elements of AfE’s case could not succeed.   Balancing relevant considerations, I therefore conclude that, as between AfE and the Council, this is an appropriate circumstance in which it is fairer, because of the public interest AfE represented, that costs not be ordered against it.

[7]      However, the position as between AfE and Wellington Badminton is, in my view, different.  By my assessment, AfE represented one type of public interest, but at the same time Wellington Badminton represented the public interest of those persons who had joined together to form the Association and who – effectively as a subset of the public which comprises Wellington citizens generally – had promoted and supported badminton facilities.   In my view it would not therefore be fair as between AfE and Wellington Badminton that the latter, having succeeded, should not have scale costs paid to it by the former.

[8]      I therefore order scale costs of $4,512, as sought by Wellington Badminton, be paid to it by AfE.

“Clifford J”

Solicitors:

Ruthe Denee and Co, Wellington for the appellant ([email protected]); (Counsel: [email protected])

DLA Phillips Fox, Wellington for the first respondent ([email protected]) Con Anastasiou, Wellington for the second respondent ([email protected])