Burgoyne v Northland Regional Council
[2020] NZHC 1424
•23 June 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2019-488-23
[2020] NZHC 1424
BETWEEN A BURGOYNE/TE TAUMATA NGATI KURI RESEARCH UNIT
AppellantAND
NORTHLAND REGIONAL COUNCIL
Respondent
AND
MOTUTANGI WAIHARARA WATER USERS GROUP
Consent Holder
Hearing: On the papers Counsel:
Appellant in person
G J Mathias for Respondent
A M B Green for Consent HolderJudgment:
23 June 2020
JUDGMENT OF PAUL DAVISON J
[Re Costs]
This judgment was delivered by me on 23 June 2020 at 3:00 PM pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Thomson Wilson, Whangarei Brookfields, Auckland
BURGOYNE v NORTHLAND REGIONAL COUNCIL [2020] NZHC 1424 [23 June 2020]
Background
[1] On 17 February 2020, I dismissed the appellant’s appeal against a decision of the Environment Court concerning the granting of a consent to the Motutangi Waiharara Water Users Group (the Consent Holder).1
[2] Mr Burgoyne (the appellant) had previously paid the sum of $2,230 as security for costs for his appeal to the Registrar on 24 May 2019.
[3] On 9 March 2020, Northland Regional Council (the respondent) filed an application seeking an order for costs on a 2B basis against Mr Burgoyne. The respondent says however, that as scale 2B costs calculation would yield a sum greater than the actual costs the respondent incurred, their application is limited to the lesser sum of actual costs, which total $4,950. The reason that the respondent’s costs are significantly less than those claimed by the Consent Holder is because the preparatory work to respond to the appeal was mainly undertaken by counsel for the Consent Holder.
[4] On 9 March 2020, the Consent Holder also filed a costs application. The Consent Holder seeks an order for indemnity costs against the appellant. In the alternative, it seeks scale 2B costs with increased costs by means of a 50 per cent uplift together with disbursements, totalling $23,757.23; or scale 2B costs and disbursements being the sum of $16,527.48.
[5] The Consent Holder seeks an order for indemnity costs on the grounds that the appellant acted vexatiously, frivolously, improperly, or unnecessarily in commencing and conducting the appeal.
[6] The appellant was served with the Consent Holder’s application for costs by post on 10 March 2020. On 28 April, he had still not filed a response. In a Minute dated 30 April 2020, I directed the appellant to file his submissions on costs by 5 pm on 15 May 2020.
1 Burgoyne v Northland Regional Council [2020] NZHC 189; Burgoyne v Northland Regional Council [2019] NZEnvC 28.
[7] On 8 May, the appellant sent a letter to the Registrar of the High Court explaining that he had not been able to file any written submissions due to the closure of post offices during the COVID-19 lockdown, his age (83 years), his lack of a computer or email, the Health Act 1956, and the Bill of Rights Act 1990.
[8] The appellant’s 8 May letter was not sent to or served on the Consent Holder which, by memorandum dated 2 June 2020, requested the Court to proceed to determine the costs applications on the papers.
Northland Regional Council’s application for actual costs
[9] The party who fails with respect to a proceeding should pay costs to the party who succeeds.2 As a successful party, the respondent is entitled to costs on a 2B scale basis. However, as their actual costs ($4,950) were less than a calculation of the 2B scale costs, it is appropriate that the appellant only pay the respondent’s actual costs. All matters relating to costs are at the discretion of the Court.3 It is inconsistent with the principles applicable to costs for a party to derive a benefit by recovering in costs more than they have actually incurred by way of costs. I accordingly find that the respondent is entitled to an award of costs in the sum of $4,950 being the amount of costs actually incurred.
Motutangi Waiharara Water Users Group (Consent Holder) application for indemnity costs
[10] Pursuant to r 14.6 of the High Court Rules 2016, the Court has the power to make an order for increased costs4 and indemnity costs.5 Rule 14.6(4)(a) relevantly provides that:
The court may order a party to pay indemnity costs if—
(a)the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or
2 High Court Rules 2016, r 14.2(1)(a).
3 High Court Rules 2016, r 14.1.
4 Rule 14.6(3).
5 Rule 14.6(4).
[11] The Court of Appeal in Bradbury v Westpac Banking Corp said as regards the costs provisions in the High Court Rules that:6
The distinction among our three broad approaches: standard scale costs; increased costs; and indemnity costs may be summarised broadly:
(a)standard scale applies by default where cause is not shown to depart from it;
(b)increased costs may be ordered where there is failure by the paying party to act reasonably; and
(c)indemnity costs may be ordered where that party has behaved either badly or very unreasonably.
…Indemnity costs, which depart from the predictability of the Rules Committee’s regime, are exceptional and require exceptionally bad behaviour. That is why to justify an order for such costs the misconduct must be “flagrant”: Prebble v Awatere Huata (No 2) [2005] 2 NZLR 467 at [6] (SC).
[12] In N-Tech Ltd v Abooth Ltd, Kós J observed, as regards increased and indemnity costs:7
It follows from these authorities that increased or indemnity costs may be awarded on the basis of lack of merit, in a case where the trial is not completed, only where the lack of merit is both obvious and incontrovertible. So clearly so that there is no reasonable possibility that the Court might form a different view with the benefit of all the evidence and closing submissions. No difficult or detailed speculation is involved. The claim is and was so flawed that nothing in the evidence and submissions to follow could save it – and the plaintiff has acted unreasonably in bringing or continuing the claim. It is, thus stated, a double hurdle. The first assesses the claim; the second, the claimant’s conduct.
[13]Here the Consent Holder submits that the appellant:
(a)Made irrelevant allegations, including allegations of fraud and breaches of the Overseas Investment Act 2005 and the Heritage New Zealand Pouhere Taonga Act 2014, for which he ought to have known there was no proper basis.
(b)Failed to attend the first scheduled hearing of the appeal on 3 October 2019, despite being sent prior notice a number of times by the court
6 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] NZLR 400 at [27] and [28].
7 N-Tech Ltd v Abooth Ltd [2012] NZHC 1167 at [108].
registry informing him of the hearing date. His failure to attend on that occasion wasted the time of the Court and other parties.
(c)Proceeded in wilful disregard of known facts and clearly established law; Palmer J’s Minute of 3 October 2019 warned the appellant that the matters relating to the Overseas Investment Act 2005 appeared irrelevant to the appeal, and also noted the appellant’s request to include this irrelevant material in the common bundle.
(d)Pursued an appeal which was hopeless and ought never to have been brought.
[14] In my decision of 17 February, I summarised the merits of the appellants’ appeal and his presentation of the appeal as follows:8
I shared the Environment Court Judge’s difficulty in following the arguments presented in support of Mr Burgoyne’s appeal. However as I understand it he essentially raises two points.
…
Nothing advanced or submitted by Mr Burgoyne, or on his behalf, has identified any error of law made by the Environment Court Judge that this Court should correct on appeal.
[15] It was clear that the appellant’s appeal lacked merit and that his discursive presentation made it difficult for the other parties to address in reply. However, in my view the reason for the absence of any cogent grounds of appeal and for the shortcomings of the appellant’s presentation of his arguments in support of his appeal was his lack of familiarity with the law and legal process, rather than any deliberate intention to introduce extraneous information. The appellant presents as an elderly and committed litigant-in-person who, despite his appeal lacking merit, is nevertheless well-intentioned, and motivated by a desire to protect a valuable water resource of cultural significance to him. In these circumstances, it would be quite unjust and inappropriate to construe his conduct as being very unreasonable, or even just unreasonable, such as to warrant making an order for either indemnity or increased
8 At [14] and [27].
costs. However, as a successful party the Consent Holder is entitled to costs and I consider the appropriate measure of costs to be pursuant to scale 2B. I accordingly approve the schedule of 2B costs as submitted by the Consent Holder with the exception of the three days claimed for the preparation of written submissions. I allow and substitute two days as being reasonable for that step.
Result
[16] I make an order for costs against the appellant in favour of the Northland Regional Council for the sum of $4,950.
[17] I make an order for costs against the appellant in favour of the Motutangi Waiharara Water Users Group as set out in their schedule of costs calculated pursuant to scale 2B, with an adjustment for the step relating to preparation, which shall be calculated on the basis of two days.
Paul Davison J
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