Cookson-Ua v Morehu

[2017] NZHC 2735

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-Ā-KAHU ROHE

CIV-2015-463-000171 [2017] NZHC 2735

UNDER

the Judicature Act 1908

the Judicature Amendment Act 1972 the Declaratory Judgments Act 1908

BETWEEN

KERE COOKSON-UA First Applicant

NIREAHA PIRIKA Second Applicant

AND

TAIWHANAKE ERU MOREHU, KEREAMA PENE, DONNA HALL, RANGIMAHUTA EASTHOPE, WIREMU KINGI, HERBERT HAPETA AND WERETI ROLLESTON-TAIT AS TRUSTEES OF NGĀTI RANGITEAORERE KOROMATU COUNCIL

First Respondents

RUIHI HAIRA, KAA KEREAMA, JEWEL HAPETA and JACK MOREHU Second Respondents

Hearing:

[On the papers]

Counsel:

J P Temm and C M Bidois for the First and Second Applicants

F E Geiringer and G M Davidson for the First Respondents No Appearance (Attendance Excused) of, or for the Second Respondents

Judgment:

8 November 2017

JUDGMENT OF EDWARDS J [re Costs]

This judgment was delivered by Justice Edwards on 8 November 2017 at 1.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

COOKSON-UA & ANOR v MOREHU & ORS [2017] NZHC 2735 [8 November 2017]

Introduction

[1]      By   judgment   dated   17   August   2017,   I   dismissed   the   applicants’ (Mr Cookson-Ua and Mr Pirika) application for judicial review.1     The application related to decisions by the respondents rejecting their respective applications for registration as members of Ngāti Rangiteaorere.  I directed the parties to confer on the question of costs but if agreement could not be reached, then a timetable for the exchange of memoranda was set out in the judgment.

[2]      The parties have not agreed on costs.  The respondents therefore seek costs on a schedule 2B basis.  The first respondents seek costs in the sum of $33,317.77 (including travel costs for counsel, other disbursements and court fees).  The second respondents did not appear at the hearing, but filed appearances and memoranda in respect of the proceeding. They seek costs of $3,568 plus disbursements.

[3]      The applicants do not dispute the categorisation or quantification of the costs sought by the respondents but seek a 60 per cent reduction on the grounds that:

(a)      The case was  a test  case and the  proceedings  were in the public interest;

(b)The  respondents  were  not  wholly  successful  as  the  applicants succeeded in showing that the Validation Committee which made the decisions had not been appointed in accordance with the Deed.

Should a reduced costs order be made?

[4]      Rule 14.7 sets out the circumstances in which a court may refuse to make an order for costs or may reduce the costs otherwise payable.   Those circumstances include where the proceeding concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding (r 14.7(e)).  It also includes circumstances where the party claiming costs has failed in relation to a cause of action or issue which significantly increased the costs of the party imposing costs (r 14.7(d)).   Finally, a court may refuse or reduce costs where some other

reason exists for doing so despite the principle that the determination of costs should be predictable and expeditious (r 14.7(g)).

[5]      The applicants submit that the proceeding was in the nature of a test case and it  was  necessary  to  clarify  how  the  definition  of  “Ngāti  Rangiteaorere”  in  the Ngāti Rangiteaorere Claim Settlement Act 2004 and in the Deed of Trust were to be reconciled.   They also claim that there was an element of public interest for the people of Ngāti Rangiteaorere in having that inconsistency resolved.  The Judicial Committee  of  the  Privy Council’s  decision  in  New  Zealand  Māori  Council  v Attorney-General is cited in support of that proposition.2

[6]      Contrary to the applicants’ submissions, I do not consider the proceeding to be a “test case”.  The claim involved the interpretation of a Deed and a Statute, and the application of orthodox administrative law principles.  There was nothing new or novel in the claim, which had broader application generally.

[7]      Nor am I persuaded that this was a proceeding of public interest.  The judicial review was in respect of decisions which affected the applicants personally, both in terms of their membership of Ngāti Rangiteaorere and in relation to their ability to stand for elections as trustees of the Ngāti Rangiteaorere Koromatua Council.

[8]      Although    I    accept    that    clarification    around    the    definition    of Ngāti Rangiteaorere   was   important,   and   of   interest   to   all   members   of Ngāti Rangiteaorere, that, in and of itself, does not elevate the claim to one of public interest.  The claim did not resolve issues of national importance, or affect members of the public more widely.

[9]      The  proceeding  was  very  different  to  that  dealt  with  by  the  Judicial Committee of the Privy Council in New Zealand Māori Council v Attorney-General. At the heart of that case was the protection of Te Reo Māori.  The applicants sought to prevent the Crown from transferring the assets of the former Broadcasting Corporation (Radio and Television New Zealand) to a new State owned enterprise. The Privy Council was required to consider whether the proposed action by the

Crown was in accordance with the principles of the Treaty of Waitangi.  That case was clearly a case of public interest.3

[10]     Furthermore, I am not persuaded that the reduction of costs can be justified on the grounds that the respondents did not succeed on one aspect of the claim.  I found that there was non-compliance with the Deed of Trust in the appointment of the Validation Committee because there was no resolution passed at the 2014 Annual General Meeting (AGM) as required by that Deed.  Nevertheless, I declined to grant relief in the exercise of the Court’s discretion.  That was because the members of the Validation Committee were clearly considered by the AGM, and the names of those comprising the Committee were read out at the AGM.   There was no objection registered at the time, and the members of the Validation Committee which made the decisions were subsequently affirmed at a 2015 AGM.   In the circumstances,  I concluded that there would be little utility in granting relief.4

[11]    The arguments around the validity of the appointment to the Validation Committee did not significantly increase the costs of the applicants.  In the overall context of the proceeding, it was a relatively minor point, with the central focus being on the definition of Ngāti Rangiteaorere.  I am not persuaded that this aspect of the claim gives reason to reduce the costs otherwise payable.

[12]     In the circumstances, I am not satisfied that there is any reason why costs should not be awarded on a 2B basis to both respondents.  I accordingly decline to

order reduced costs in this case.

3      New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 at 514-515 and 525-526.

4      Cookson-Ua v Morehu [2017] NZHC 1960 at [20].

Result

[13]     I award costs in the sum of $29,659 plus disbursements of $3,658.77 to the first respondents.  I award costs in the sum of $3,568 plus disbursements of $110 to

the second respondents.

Edwards J

Counsel:     J P Temm, Rotorua

F E Geiringer, Wellington

Solicitors:    Woodward Law Office, Lower Hutt

Copies To:   East Brewster (C M Bidois) Rotorua

P V Cornegé, Hamilton