Board of Trustees of Phillipstown School v Minister of Education

[2013] NZHC 3328

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2013-409-1266 [2013] NZHC 3328

BETWEEN  BOARD OF TRUSTEES OF PHILLIPSTOWN SCHOOL Plaintiff

ANDMINISTER OF EDUCATION Defendant

Hearing:                   12 December 2013 (On the papers)

Counsel:                  M Chen and D Gardiner for Plaintiff

K L Clark QC and S McKechnie for Defendant

Judgment:                12 December 2013

JUDGMENT NO 2 OF FOGARTY J

[1]      The substantive judgment on the judicial review awarded the applicant Board costs.1

[2]      Counsel for the Board and the Minister have been discussing costs, but have been unable to reach an agreement.  There are two areas of dispute.  The plaintiff contends that some costs should be calculated as category 3 and for some steps on a Band C basis, given the large amount of time required for those steps.  Counsel for the defendant disagree, and maintains that all costs should be determined on a 2B basis.

[3]      I deal first with the categorisation of the pleadings.  Counsel for the plaintiff submit the proceedings should be classified category 3, being proceedings which because of their complexity and significance require counsel to have special skill and experience in the High Court.  Counsel for the defendant disagree, and argues that

the case was not particularly complex.  Secondly, counsel for the defendant submit

1      Board of Trustees of Phillipstown School v Minister of Education [2013] NZHC 2641.

that this case was decided by a failure of process, rather than engaging on the exercise  of  a  discretion  by the  Minister.    For  that  reason,  the  Crown  seeks  to distinguish the case of Whangamata Marina Society Inc v Attorney General.2

[4]      I  agree  with  the  Crown,  that  these  proceedings  should  not  be  classified category 3 on account of their complexity.   As High Court cases go, it was not unduly complex.  To my mind the question is whether or not it should be classified category 3 because of its significance, particularly that it was seeking to set aside a decision of a Minister of the Crown.

[5]      In Whangamata I said:

[6]       ...the Courts are particularly sensitive to interfering with decisions of a Minister of the Crown.  The residual discretion reserved by the High Court upon judicial review is an extremely important aspect of the inherent jurisdiction of the Court. This is especially so when a challenge  is to a Minister of the Crown. I would not expect a solicitor to consider that such a proceeding requires counsel of skill and experience considered average in the High Court.  Because of the goal (overturning a Minister’s decision) it requires  counsel  with  special  skill  and  experience.    It  requires  counsel attuned to the proper reluctance of the Court to interfere with Ministerial decisions.  So  attuned,  counsel  will  make  decisions in the course  of  the preparation of the materials to be placed before the Court in order to build up a momentum in favour of the applicant’s case beyond a point which might not be required where the decision maker is someone of considerably less status than a Minister of the Crown. For this reason I am satisfied that the appropriate categorisation of the case is category 3.

[6]      Counsel for the defendant seek to distinguish  this quote, as  I have said, because upon analysis this Phillipstown decision did not engage upon the exercise of a discretion by the Minister.   I agree that is a material difference in the facts.   In Whangamata the analysis examined the manner of consultation of the Minister with the community, and whether or not he should have spoken with some interested members of the community, in circumstances where the principles of natural justice could not apply.

[7]      I do not think this is a distinguishing factor.  The thrust of my comment, set out above, is directed to the reluctance of this Court to set aside decisions of a

Minister of the Crown.

2      Whangamata Marina Society Inc v Attorney General (2006) 18 PRNZ 565 (HC) at [6].

[8]      The  context  is  that  government  in  New  Zealand  is  divided  between  the

Sovereign, the Executive, the Legislature and the Judiciary.3

[9]     The Executive properly considered are the Ministers of the Crown and Parliamentary Undersecretaries in relation to a ministerial office, and the Solicitor- General.4

[10]     Frequently judicial review by the High Court is more likely to be in respect of decisions by statutory authorities, of lesser status, empowered by the legislature to make decisions implementing statutory policy.

[11]     The relationships between the Sovereign, the Executive, the Legislature and the Judiciary are governed by constitutional conventions of mutual respect.

[12]     When the decision subject to judicial review is a decision by a Minister, there is a proper reluctance of the Court to interfere with a decision taken at such a high level of government.   That was the point I was seeking to make in [6] of Whangamata.   It does not turn on the complexity of the case.   It turns on the significance of the case.

[13]     It was my judgment in Whangamata, and remains my view, that when any private citizen or organisation is asking the High Court to overturn a Minister’s decision, the prudent course for such an applicant is to engage counsel who have special skill, experience and standing before the High Court.

[14]     The High  Court  Costs  Rules  proceed  on  the  general  goal  of  allowing  a successful party to recover two-thirds of their actual costs.  This is rarely achieved. It would not be achieved at all if senior counsel were engaged to challenge a Minister’s decision, but costs were calculated on the basis that it was an ordinary case.

[15]     For these reasons, the plaintiff is entitled to  costs to be calculated on a category 3 basis.

3      Constitution Act 1986.

4      Constitution Act, Part 2, ss 6, 8, 9, 9A-9C.

[16]     I move to consider the dispute as to classifications on a Band C basis.  The plaintiff seeks Band C for the following items in the schedule:

1         Commencement of proceedings by plaintiff/statement of claim

– 10 days

30       Plaintiff’s preparation of affidavits – 5 days

33       Preparation for hearing – 5 days

34       Appearance at hearing of principal counsel – 2 days

35       Appearance at hearing for second/subsequent counsel – 1 day

[17]     The defendant’s counsel do not agree that any time should be calculated on a

Band C basis.  So, by comparison, they contend for:

(a)       3 days for commencement of proceedings by statement of claim. (b)  2.5 days for preparation of the affidavits.

(c)       3 days for preparation of the hearing.

[18]     The  allowance  of  10  days  for  preparation  of  the  statement  of  claim  is generous in this case, but 3 days is clearly not enough.   There were voluminous affidavits filed in the proceedings.   I have no doubt that they took more than five days work in preparation.  Similarly, the preparation for hearing could not have been done within three days.   Five days is about right.  There is no effective discretion given by the authorities for this Court to adjust time allowances to days between the bands.

[19]     In this regard, it is a significant argument by the solicitors for the defendant that the plaintiff succeeded only on part of the case that it presented to the Court.  It invites the Court to take into account the fact that the issues argued before the Court narrowed from those pleaded in the statement of claim, yet the Crown, for its part, both in evidence and submission, had to prepare and respond on the basis of other issues pleaded.  It also invites the Court to take into account the fact that the Court

found there is no merit in the second ground advanced by the plaintiff.  The Crown cited no authorities in support of that argument, and did not rely upon r 14.7(f).

[20]     It  is  true  that  the  plaintiff’s  argument  before  the  High  Court  covered  a number of additional grounds, which did not attract the Court and were not responsible for the judgment in favour of the plaintiff.  But it cannot be suggested that these arguments were in any way a waste of time.  They reflected a judgment by counsel as to what might or might not find favour with the Court.  Advocacy is a difficult art.  Advocates tend to be cautious and argue more grounds than are usually necessary.  This is for the good reason that essentially their clients only get one shot at the case.  Under our law of res judicata it is not possible to go back to the Court with a new argument after you have lost.

[21]     For this reason, Judges in costing decisions do not discount costs awarded to a successful party for work which turned out not to have been required in order to get  a  successful  judgment,  unless  it  clearly  put  the  defendant  to  unnecessary expense. The argument for counsel for the defendant does not make that submission.

[22]     For  these  reasons,  the  two  arguments  by  counsel  for  the  defendant  in opposition to the claim for costs fail.  Costs are awarded to the plaintiff in the sum of

$89,670, together with a further $9,645.25 in disbursements.

Solicitors:

Chen Palmer Public and Employment Law Specialists, Auckland

Crown Law, Wellington