Awarua Farm (Marlborough) v Marlborough District Council

[2014] NZHC 2558

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2014-406-23 [2014] NZHC 2558

UNDER

Section 299 of the Resource Management

Act 1991

BETWEEN

AWARUA FARM (MARLBOROUGH) LIMITED

First Appellant

PHILIP JOHN WOOLLEY Second Appellant

AND

MARLBOROUGH DISTRICT COUNCIL

Respondent

On the papers
Counsel:	D J Clark for Appellants P J Radich and M J Radich for Respondent
Judgment:	20 October 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 20 October 2014 at 2.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Wisheart Macnab and Partners, Blenheim for Appellants

Radich Law, Blenheim for Respondent

AWARUA FARM (MARLBOROUGH) LIMITED v MARLBOROUGH DISTRICT COUNCIL [2014] NZHC

2558 [20 October 2014]

Introduction

[1]      Mr Woolley and Awarua Farm (Marlborough) Ltd1  unsuccessfully appealed to the High Court against a decision of the Environment Court.2    The respondent, Marlborough District Council, now seeks costs in relation to the substantive proceedings  and  also  the  appellants’  unsuccessful  application  for  a  stay  of

enforcement orders pending determination of the appeal in the High Court.

Background

[2]      Mr Woolley is a dairy farmer in Marlborough with two dairying operations, one at Awarua Farm near Tuamarina (Awarua Farm) and the other at Glenmae in the Wairau Valley (Glenmae Farm).   The Environment Court issued a range of enforcement orders against the appellants in relation to Awarua Farm.  The effect of enforcement orders 1–4 was to prevent the appellants from milking on Awarua Farm until its existing effluent managing system was upgraded or replaced.

[3]      At 11.35 am on the day before the hearing, the appellants applied for a stay of the enforcement orders on the basis of an urgent animal welfare issue relating to a herd of cows owned by the appellants (the Tuamarina herd).  The respondent filed notices of opposition at 3.19 pm followed by a supporting affidavit from Mr Lawson at 3.25 pm.  An urgent telephone conference was convened at 4.00 pm and, due to the apparent animal welfare issues raised by the stay application, it was agreed that it would be dealt with the following day at the hearing.

[4]      The respondent filed a further affidavit, from Mr Versteegh, at 9.30 am on the day of the hearing.   Oral submissions were heard and the respondent filed written submissions two days later.

[5]      The application was dismissed.   Several of the reasons for dismissal are relevant  in  the  context  of  costs.    First,  the  application  and  the  accompanying affidavits from Mrs Woolley and from a veterinarian, Mr Hansby, conveyed the clear

impression that the Tuamarina herd was situated at Awarua Farm, that they had to be

1      Together, the appellants.

2      Awarua Farm (Marlborough) Ltd v Marlborough District Council [2014] NZHC 2264.

milked  on  site  at  that  farm  for  their  own  welfare,  and  that  the  appellants  had attempted to engage with the respondent to prevent this welfare issue from arising.

[6]      Second, there was no animal welfare issue.  The Tuamarina herd was not in fact at Awarua Farm.  Instead, it was being milked at Glenmae Farm, in breach of another Court order.  Third, proceedings in relation to Awarua Farm and its effluent management system had been on foot since before the 2013 dairy season and the appellants proceeded to impregnate their cows despite on-going litigation and clear warnings from the Environment Court regarding the need to improve the effluent management system.

[7]      Fourth, the respondent repeatedly sought to engage with the appellants in relation to the potential for animal welfare issues and also in relation to whether the appellants intended to apply for a stay.   The appellants did not respond to these efforts.   Fifth, there was no basis to the appellants’ claim that the respondent had been uncooperative or inflexible.

The application for costs

[8]      The respondent seeks costs in relation to the appeal on a 2B basis and disbursements for travel expenses.   The parties agreed that the appeal was a 2B proceeding at the first case management conference.   It is therefore appropriate to order 2B costs in relation to the appeal.  The appellants do not dispute the claimed disbursements.

[9]      The respondent also seeks 3C costs in relation to the stay application on the basis that: the late timing of the application was unnecessary; the respondent completed its procedural and substantive obligations in less than four working days, rather than the 10 working days that would ordinarily be available; the inaccuracies conveyed by the affidavit evidence filed by the appellants required the respondent to undertake  unnecessary  further  work;  and  experienced  counsel  was  required  to traverse the issues and make the submission that counsel for the appellants was partially responsible for the inaccuracies in the affidavit information.  The need for

experienced counsel required the instruction of Mr Radich to respond to the application for stay (Ms Radich having been instructed to deal with the appeal).

[10]     I accept these submissions in relation to categorisation.  However, the time provided for by band C is not appropriate for each of the steps in the proceeding.  I am satisfied that the time provided by Band A is appropriate for item 23 and band B is appropriate for item 24 (as set out below). The matter does not end there however. An uplift of 30 per cent in accordance with r 14.6(3)(d) is appropriate to reflect the circumstances in which the application was made, and the inaccuracies conveyed by the affidavit evidence.

[11]     The final issue is the steps claimed by the respondent.  In relation to the costs for appeal, the respondent claims:

Item 53         Commencement of response to Appeal

Item 11          Filing memorandum for case management conference

Item 56         Preparation of written submissions

Item 57         Appearance at the hearing (for three quarters of a day)

Item 58         Allowance for second counsel

[12]     In relation to the costs for the stay application, the respondent claims:

Item 23         Filing opposition to interlocutory application

Item 12         Appearance at callover

Item 24         Preparation of written submissions

Item 26         Appearance at hearing (for one quarter of a day)

Item 27         Allowance for second counsel

[13]     Second counsel is not appropriate in relation to either the costs for appeal or the costs for the stay application.   The appellant is to pay costs in relation to the remaining steps claimed by the respondent.

Result

[14]     The appellant is to pay costs in relation to the appeal on a 2B basis and costs in relation to the stay in accordance with the directions above.

Goddard J