Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel

[2020] NZHC 183

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002333 CIV-2016-404-002335

[2020] NZHC 183

UNDER

The Local Government (Auckland Transitional Provisions) Act 2010 and the Resource Management Act 1991

IN THE MATTER

of an appeal under section 158 of the Local Government (Auckland Transitional Provisions) Act 2010

AND

IN THE MATTER OF

an application for judicial review under the Judicature Amendment Act 1972

BETWEEN

FRANCO BELGIORNO-NETTIS

Plaintiff/Appellant

AND

AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL

First Defendant

AND

AUCKLAND COUNCIL

Second Defendant/Respondent

Hearing:

On the papers

Counsel:

S J Ryan Plaintiff/Appellant

M C Allan & L M Wansbrough R S Ward for Second Defendant/Respondent

Dr C E Kirman and A K Devine for Housing New Zealand Corporation (Intervenor)

Judgment:

17 February 2020

COSTS JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 17 March 2020 at 11:00am

pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

BELGIORNO-NETTIS v AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL [2020] NZHC

[183] [17 February 2020]

Introduction

[1]    In 2017, Mr Belgiorno-Nettis (the plaintiff) appealed from and sought judicial review of a decision of the Auckland Council (the Council) in relation to an aspect of the Auckland Unitary Plan in the High Court.1 Both the appeal and the judicial review were primarily founded on the proposition that the Independent Hearings Panel (the Panel) and the Council had failed to provide reasons (or adequate reasons) for their recommendations and decisions affecting the properties in respect of which Mr Belgiorno-Nettis had made submissions to the Panel. Housing New Zealand Corporation (the Corporation) was a party to the appeal under s 301 of the Resource Management Act 1991 and was granted leave to intervene in the application for judicial review. I dismissed the appeal and the application for judicial review.2

[2]    In 2018, the plaintiff applied for leave to appeal a point of law arising from the High Court 2017 substantive judgment pursuant to s 67 of the Judicature Act 1908.3 I dismissed the application for leave to appeal.4 In my costs judgment, I found the Council and the Corporation entitled to Category 2B costs and disbursements in respect of both the High Court 2017 substantive judgment and the High Court 2018 application for leave to appeal.5

[3]    In 2019, the plaintiff’s appeal against the refusal to grant judicial review, and an application for leave to appeal the determination of a point of law was heard in the Court of Appeal.6 The Court of Appeal allowed the appeal against the refusal to grant judicial review, granted the application for judicial review, and declined the application for leave to appeal.7 In relation to costs, the Court said:8

[118]     Mr Belgiorno-Nettis, although he has not got the orders he sought, has largely succeeded on his substantive arguments. The appeal has been allowed and a report of reasons ordered. This was the respondents’ preferred option

1      Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2017] NZHC 2387, [2018] NZRMA 1 [High Court Judgment].

2 At [135].

3      Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2018] NZHC 459 [Leave Judgment].

4 At [63].

5      Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2018] NZHC 926 at [35].

6      Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175.

7      At [114]-[117].

8      Emphasis added.

should the appellant succeed but argument on the point did not occupy much time. The Council’s general position was to seek to have the appeal dismissed.

[119]      We regard Mr Belgiorno-Nettis as the successful party. He is entitled to costs in this Court for a standard application on a band A basis and usual disbursements, certified for two counsel, and payable by the respondents. We exclude the Corporation as it played only a small part in the proceeding, and focused on relief, where it was to a degree successful, although not to the extent in all the circumstances that entitles it to costs.

[120]      The cost orders made by the High Court in favour of the respondents and the Corporation are quashed. Costs are to be determined afresh in the High Court, in the light of this judgment.

[121]       Dr Kirman for the Corporation submitted that even if the appeal was allowed, the costs order in her client’s favour in the High Court should stand, as in the High Court hearing the appeal still related to some land in which the Corporation had an interest, and so the Corporation was obliged to take steps. We are not sufficiently familiar with what transpired in the High Court to rule on that. So the Corporation costs order is quashed, and it is to be reconsidered by the High Court in the light of this judgment with the other costs orders.

[4]    Mr Belgiorno-Nettis, as the successful plaintiff and appellant, now applies for costs in relation to the High Court proceedings (substantive and leave to appeal) against the Council and the Corporation.

[5]    The plaintiff seeks costs on a 2B basis at a daily recovery rate of $2,230.00, and has filed a schedule calculating his costs as $70,366.00. He seeks costs in terms of the High Court scale, including for the preparation of a “substantial” Statement of Agreed Facts by way of an additional step (step 36 of schedule 3, High Court Rules 2016). He argues that the Council should contribute at least two thirds of the award of scale costs, and that the Corporation should contribute the balance.

[6]    With two exceptions the Council agrees with the plaintiff’s schedule in relation to the steps pertaining to the judicial review proceedings. The Council disagrees with the costs sought by the plaintiff under steps 24 and 36. The Council also disagrees with the claim for disbursements and costs in relation to the appeal and the application for leave to appeal. It argues that costs in relation to the appeal should lie where they fall given that the Court of Appeal declined the plaintiff’s leave to appeal. It agrees that costs should be apportioned on a two thirds:one third basis between it and the Corporation.

[7]    The Corporation (respondent in the appeal, and intervener in the application for judicial review) disagrees that it should contribute to an award of costs. Rather, it seeks an order for costs in its favour, on similar terms to those set out in the High Court 2018 costs judgment.

Discussion

Is the plaintiff entitled to an award of costs for both the judicial review proceedings and the proceedings in relation to the appeal?

[8]    The Council submits that costs in relation to the appeal should lie where they fall given that the Court of Appeal declined to grant leave. The plaintiff disagrees, noting that: the appeal was dismissed for reasons unrelated to the merits; and the Court of Appeal decision to quash the High Court costs orders was not limited to the judicial review proceedings.

[9]    Giving its reasons for dismissing the plaintiff’s appeal, the Court of Appeal said:9

Before us the respondents, who had submitted there was no jurisdiction to grant leave in the High Court, did not pursue that submission and focused argument on the merits of the appeal. Therefore the jurisdiction issue (on which we express no view), was not argued. In the circumstances it is unnecessary for us to determine the issue of leave to appeal. If there was jurisdiction and leave was granted, the considerations and decision would have been in substance the same as in relation to judicial review. For these reasons, not connected to the merits, we will dismiss the application for leave to appeal.

[10]   The costs regime is founded on the principle that the party who fails with respect to a proceeding should generally pay costs to the party who succeeds.10 There are no specific statutory guidelines on the determination of costs by the initial court where the initial court’s ruling has been overturned by an appellate court. However, caselaw suggests that the party who successfully appealed should be viewed as if they had also been successful in the lower court.11 Where a party enjoys limited success,  it is still considered to be the successful party.12 However, this Court must “recognise

9 At [113].

10     High Court Rules 2016, s 14.2(1)(a).

11     LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2015] NZHC 685 at [30].

12     Weaver v Auckland Council [2017] NZCA 330 at [26].

that limitation, where appropriate, by applying a reduction in costs or letting costs lie where they fall”.13

[11]   The costs regime also follows the general principle that an award of costs should reflect the complexity and significance of the proceeding.14 It is predicated on the concept of reasonable recovery, aiming to “encourage efficiency in the conduct of a proceeding by allowing costs only on the basis of what is considered appropriate in terms of skill (and thus daily rate), and in terms of time”.15

[12]   Applying these principles, I agree with the plaintiff that it would be a mischaracterisation of the Court of Appeal’s decision to say that he failed with respect to the appeal. Nevertheless, the success he enjoyed was clearly limited. Further, as the plaintiff has recognised, the appeal and review proceedings concerned the same interpretive issues. It would in my view amount to “double-dipping”, and be contrary to the principle of reasonable recovery, for the plaintiff to be awarded costs in relation to the appeal as well as the review proceedings. I accordingly agree with the respondent that in relation to the appeal, costs should lie where they fall.

Should the Corporation contribute to an award of costs to the plaintiff?

[13]   I agree with the plaintiff that the Corporation should contribute to the award of scale costs.

[14]In Rochdale Precinct Society Inc v Christchurch City Council the Court said:16

… unsuccessful parties are prima facie jointly and severally liable. That rule may be varied because the ultimate task of the Court is to make an assessment of overall justice as between the particular parties, in the particular circumstances. Relevant considerations include whether and in what manner the parties participated in the proceedings, the extent to which one party was in error, and what measure of reliance was placed on the error by the other party.

13     Rochdale Precinct Society Inc v Christchurch City Council [2018] NZHC 1708 at [7], citing Water Guard NZ Ltd v Midgen Enterprises Ltd [2017] NZCA 36 at [13].

14     High Court Rules 2016, s 14.2(1)(b).

15     Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [HRPt14.02].

16     Rochdale, above n 13, at [22].

[15]   I find that a contribution of one third of the scale costs award from the Corporation will reflect the active and material role the Corporation played in resisting the plaintiff’s appeal.

Allocations for Steps 24 and 36

[16]   The Council seeks a discount in relation to two steps identified by the plaintiff. The plaintiff seeks: a time allocation of 1.5 days for the preparation of submissions of counsel in support of the interlocutory application for waiver of security for costs (step 24); and 2.5 days for the preparation of a “substantial”, 28-page, Statement of Agreed Facts (step 36).

[17]   In relation to step 24, I consider that an allocation of 1.0 days under step 22 for filing the application is sufficient to encompass the work done for the submissions under step 24. The interlocutory application for waiver of security for costs consisted of a notice of application and a four-page memorandum.

[18]   In relation to step 36, an allocation of one day, consistent with the earlier costs order in favour of the Council, is appropriate.

Result

[19]   Mr Belgiorno-Nettis is entitled to costs and disbursements in respect of the judicial review proceedings. These are to be calculated on a 2B basis at a daily recovery rate of $2,230.00 for the steps set out in Auckland Council’s agreed tables of costs and disbursements. These tables reflect the adjustment to step 36 in respect of the judicial review proceedings, and that costs should lie where they fall in respect of the appeal. However, the table of costs needs to be amended to reflect the removal of step 24 in the judicial review proceedings and the corresponding increase in time allocation for step 22 from 0.6 days to 1.0 day.

[20]   Auckland Council is to pay two thirds of the award. The Corporation is to pay one third.

[21]   In summary, the plaintiff is entitled to $43,485.00 for costs and $3,880.00 for disbursements (sum $47, 365.00). Auckland Council is to contribute $31,576.67, and the Corporation is to contribute $15,788.33.

Paul Davison J

Solicitors:

Daniel Overton & Goulding, Auckland Brookfields, Auckland

Burton Partners, Auckland Ellis Gould, Auckland