Back Country Helicopters Limited v Minister of Conservation

[2014] NZHC 483

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-806 [2014] NZHC 483

BETWEEN  BACK COUNTRY HELICOPTERS LIMITED

ALPINE DEER GROUP LIMITED MOUNT HUTT HELICOPTERS LIMITED

ALPINE HUNTNG ADVENTURES LIMITED

NEW ZEALAND MOUNTAIN HUNTING LIMITED

SOUTH PACIFIC SAFARIS (NZ) LIMITED

Plaintiffs

ANDTHE MINISTER OF CONSERVATION Defendant

In Chambers:

Judgment:                17 March 2014

JUDGMENT OF THE HON JUSTICE KÓS (Costs)

[1]      On 6 May 2013 I dismissed the plaintiffs’ application for judicial review of the defendant Minister’s decision to grant consents for aerial-assisted trophy hunting for two year terms only. An appeal against that decision has since been abandoned.

[2]      The parties cannot  agree on costs.   On  25 February 2014 the defendant applied for costs, broadly on a category 2 band B basis.1

[3]      The plaintiffs do not quarrel with quantification, save in relation to one item. However they seek an order that costs lie where they fall.

1      With one exception where band A is to apply.

BACK COUNTRY HELICOPTERS LIMITED & ORS v THE MINISTER OF CONSERVATION [2014] NZHC 483 [17 March 2014]

Should costs lie where they fall?

[4]      The norm is that costs follow the event.   The “event”, here, was that the plaintiffs were wholly unsuccessful in their application for judicial review.

[5]      The Court does, however, have an overriding discretion under r 14.1.   In addition, r 14.7 provides that the Court may refuse to make an order for costs (or reduce the costs otherwise payable) in certain circumstances.

[6]      The plaintiffs do not rely on r 14.7 specifically.  They do not suggest that any of the particular circumstances named in r 14.7 apply.  Rather, they seek leave (but informally, in a memorandum rather than by specific application) to adduce evidence of a post-judgment August 2013 speech by the defendant Minister which they say “confirms the allegations of improper purpose and bias against Mr Dunne”.   In support, there is an affidavit from a Ms Silver, attaching a transcript of the speech said to have been given by the Minister.

[7]      I decline to consider that additional material in relation to the fixing of costs. First, there is no application.  Secondly, it is not apparent to me how the additional material would be relevant to the calculation of costs.   It does not touch on any matter in r 14.7.  My judgment stands, for better or worse, on its own terms.  If the plaintiffs say that this material is relevant to the outcome (or “event”), they would need to take steps to alter the “event”. That is, by applying for recall or setting aside the judgment in light of new information.   Absent a successful application along those lines, the new material is of no relevance to the fixing of costs.

[8]      It follows that the ordinary application of costs, following the event, should apply here.

Quantification of costs

[9]      The  plaintiffs  do  not  quarrel  with  the  quantification  of  costs,  except  in relation to item 20.  That concerns the list of discovered documents.  The plaintiffs say that discovery was dealt with informally, and the defendant disclosed a single

lever-arch file containing 90 documents.  The plaintiffs say 2.5 days seems excessive for informal discovery.

[10]     I am not prepared to modify the band B allowance.  Even informal discovery in a case like this is bound to require extensive inquiries of the departmental offices, and of ministerial staff.  As best as I can guess, at most there might be half a day’s issue only in the allowance.  In the absence of better information I am not prepared to adjust the standard allowance.

Conclusion

[11]     There  will  therefore  be  costs  in  favour  of  the  defendant  of  $35,451.75 together with disbursements of $1,099.03.

Stephen Kós J

Solicitors:

Gallaway Cook Allan, Dunedin for Plaintiffs

Crown Law, Wellington for Defendant