Cossens v Queenstown Lakes District Council
[2021] NZHC 3240
•30 November 2021
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2020-425-000050
[2021] NZHC 3240
BETWEEN JOHN JAMES COSSENS
Plaintiff
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
Defendant
Hearing: On the papers Appearances:
Plaintiff in person
J C Campbell and C L Wilkinson for Defendant
Judgment:
30 November 2021
JUDGMENT OF DUNNINGHAM J
Re: Costs Decision
This judgment was delivered by me on 30 November 2021 at 2.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
[1] On 18 August 2020, the applicant, Dr Cossens, filed an application for judicial review of the decision made by Queenstown Lakes District Council in respect of his application for a four lot subdivision consent. The decision allowed the creation of two additional lots but declined the third additional lot. It did so on the grounds that a dwelling on the third lot would affect the open pastural character of the landscape and would not achieve the outcomes in the visual amenity landscape where the subdivision lay.
COSSENS v QUEENSTOWN LAKES DISTRICT COUNCIL [2021] NZHC 3240 [30 November 2021]
[2] Dr Cossens appealed the decision. In an interim decision the Environment Court offered to permit subdivision into four lots on certain conditions, including a restrictive no further subdivision covenant across all four lots and a wider protection of the ecological zone.1 That option was accepted by the plaintiff and on 12 February 2019 the Environment Court issued a final decision allowing the four lot subdivision with associated consent conditions.2 The Court, however, declined to award costs in favour of Dr Cossens.3 The four lot subdivision has now been implemented.
[3] Dr Cossens’ statement of claim set out the background to the subdivision consent application in full alleging that the Council made errors in law, errors in process and errors in fact all of which caused him hardship and prejudice. He sought declarations that the Council had erred in the numerous ways he listed in his 38 page statement of claim, along with an award of damages, interest and costs.
[4]Dr Cossens then filed interlocutory applications which sought:
(a)orders for discovery;
(b)orders requiring eight individuals to attend the Court for cross-examination; and
(c)leave to file interrogatories.
[5] All of these were opposed by the Council, and detailed memoranda were filed explaining why the applications were unwarranted or inappropriate in the context of an application for judicial review.
[6] On 23 February 2021, Associate Judge Lester issued a minute setting out the principle that a de novo hearing in the Environment Court cures defects in the original
1 Cossens v Queenstown Lakes District Council [2018] NZEnvC 205.
2 Cossens v Queenstown Lakes District Council [2019] NZEnvC 17.
3 Cossens v Queenstown Lakes District Council [2019] NZEnvC 80.
hearing and pointed out that if this principle applies in this case, “it has implications for the plaintiff’s applications”.4
[7] Ultimately, Dr Cossens withdrew his application for hearing on the opposed issues saying, on the discovery application, he had obtained the information he sought through a request under the Local Government Official Information and Meetings Act 1987.
[8] While costs were sought by the Council on those applications, I deferred a decision on costs until the substantive hearing so that the merits of the application could be assessed.5
[9] When the matter came to be heard before me on 21 September 2021 I had read the pleadings, the evidence and the submissions. It seemed to be that Dr Cossens’ claim had some difficulties and I explained those to Dr Cossens at the outset of the hearing so he could focus his oral submissions on them. I also then set their concerns out in a minute I issued subsequently, as follows:6
(a)The errors in law and process raised by Dr Cossens appear to have been cured, on appeal, by the grant of a four lot subdivision consent with three additional building platforms.
(b)Dr Cossens was not wishing to have that decision set aside, nor could I do so, given it was a decision of the Environment Court which was not a defendant in the proceeding.
(c)There was no precedent for Dr Cossens’ claim for damages.
(d)Many of the so-called errors in law were really a concern that Council’s consultants had given inappropriate weight to matters, such as to protecting “openness” in a visual amenity landscape, and these alleged errors involved a merits-based assessment on the particular facts of the case, something which would not normally be embarked on, on judicial review.
[10] The Court adjourned at midday and reconvened at 2.15 pm. When the Court reconvened Dr Cossens advised that he wished to abandon his claim. He
4 Cossens v Queenstown Lakes District Council HC Invercargill CIV-2020-425-50, 23 February 2021, at [6].
5 Cossens v Queenstown Lakes District Council HC Invercargill CIV-2020-425-50, 3 June 2021.
6 Cossens v Queenstown Lakes District Council CIV-2020-425-50, 22 September 2021 at [1].
acknowledged he would be liable for costs to the defendant, but nevertheless elected to discontinue his claim.
[11] I signalled to the Council that I would be minded to award 2B costs, including on the interlocutory application made by Dr Cossens for discovery which was abandoned shortly before hearing.
[12] Costs have not been agreed by the parties. I am now in receipt of a memorandum of costs from the Council seeking 2B costs plus disbursements totalling
$39,933.38. This includes disbursements of $976.38 being:
(a)filing fee for the statement of defence dated 23 October 2020;
(b)filing fee for notice of opposition dated 19 January 2021;
(c)filing fee for notice of opposition dated 7 July 2021;
(d)costs of producing the common bundle for the applicant and the Court of $646.38.
[13]Dr Cossens raises the following objections to the costs calculation:
(a)He says the Council has attempted to claim for a case management conference which did not happen, therefore the claim for appearance at a first case management conference and, the claim for preparation for and appearance at an issues conference should not be allowed.
(b)He contests the claim of $10,038 for opposing the interlocutory applications. He says he had:
little choice but to make an application for discovery because of the scant and irrelevant affidavit material the Respondent provided … [being] … only one affidavit … by Ms Katrina Ellis who was not involved in the original commission hearing.
(c)He rejects the amount of $8,365 claimed for the filing of affidavits and the common bundle. While he acknowledges the Council’s affidavit
was long (546 pages), he said it included “largely irrelevant ‘padding’”. He therefore considers the amount claimed for a single affidavit and for the small common bundle is “disproportionate”.
(d)He also adds that the Council “rebuffed repeated attempts” by him to initiate any alternative process that may have prevented the matter going to hearing and so the Council was “equally responsible” for the matter proceeding to hearing.
[14]The Council has responded to these claims. It says:
(a)The Council accepts the first case management conference was heard on the papers and so considers it is appropriate to deduct the costs claim by $717. However, it says a second case management conference was held on 4 March 2021 and recorded in a minute of Lester AJ dated 10 March 2021.
(b)In terms of the costs to prepare the affidavit evidence and common bundle, the Council says it calculated its costs on a 2B basis in accordance with the High Court Rules 2016. The extent of Ms Ellis’s affidavit was necessary to respond to evidence raised by Dr Cossens. The Council also offered to produce the common bundle when the applicant did not circulate one in hard copy form as required under the High Court Rules.
(c)The Council says that it responded to the applicant’s concerns on a number of occasions. However, it is correct that in the end, the Council preferred to resolve the application through the Court.
Discussion
[15] The starting point is that, pursuant to r 15.23 High Court Rules, a discontinuing plaintiff must pay the defendant’s costs of the proceedings. While costs are at the discretion of the Court, I must be guided in the exercise of that discretion by the
principles applying to the determination of costs under the High Court Rules. These include that:
(a)Costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application.7
(b)So far as possible the determination of costs should be predictable and expeditious.8
[16] Although, understandably, the Council may have considered there were grounds for seeking increased costs under r 14.6, in the interests of costs being calculated predictably and expeditiously, I indicated a 2B costs award would be appropriate. These are the costs calculated on the assumption that the proceeding was of average complexity requiring counsel of skill and experience considered average in the High Court, and where the steps involved took a normal amount of time.9
[17] Having perused the plaintiff’s calculation of costs, the only correction that obviously needs to be made is to remove the claim for $717 in relation to an appearance at a first case management conference, as directions were made on the papers that had been filed and no appearance was required.
[18] I am satisfied that the Council is entitled to claim in full for opposing the interlocutory applications made. In particular, I am satisfied that the application for discovery was misconceived, as were the applications for orders requiring eight individuals to attend the hearing and be cross-examined and for leave to file interrogatories. The applications to cross-examine a number of Council employees and consultants who were involved in the preparation of the s 42A reports10 overlooked the fact that applications for judicial review usually proceed on the basis of the evidence available to the decision maker at the time of the decision, and is adduced by way of affidavit evidence. The decision itself was made by independent
7 High Court Rules 2016, r 14.2(1)(c).
8 Rule 14.2(1)(g).
9 Rule 14.3(1) and 14.5(2).
10 Resource Management Act 1991, s 42A.
commissioners who granted Dr Cossens’ subdivision consent in part. It is difficult to see what relevant information could be added which was not already in the materials and evidence which was before the commissioners.
[19]The application for discovery was for:
(a)all internal emails and correspondence between staff concerning Dr Cossens’ resource consent application and the subsequent Environment Court proceedings;
(b)all external emails and correspondence between external consultants and Council staff in relation to Dr Cossens’ resource consent application and the Environment Court proceedings;
(c)a record of all internal meetings where Dr Cossens’ resource consent and Environment Court proceedings were discussed.
[20] The breadth of these requests and the lack of any obvious relevance to the decision made by independent commissioners appointed by the Council speaks for itself. Furthermore, as the Council points out, the documents which were provided were clearly irrelevant to the issues raised by the proceedings. They revealed the internal deliberative processes of consultants who prepared reports for a decisionmaker and were not relevant to whether the Council (or subsequently the Environment Court on appeal) erred in any way in making its decision. It is appropriate that the Council is awarded costs on these discontinued applications.
[21] I also consider the Council’s claim for preparation of affidavits, authorities and the common bundle is in order. While it only filed one affidavit, it was extensive and included documents which would not in the ordinary course be considered relevant (such as Council’s health and safety policy), but which were included to respond to Dr Cossens’ wide-ranging claims.
[22] Finally, there is no basis for reducing costs because the Council did not, in Dr Cossens’ view, engage in meaningful resolution discussions. It is difficult to see
how the Council could have meaningfully engaged with Dr Cossens when his claim went well beyond the scope of traditional judicial review, and where he was neither seeking to set aside the Council’s decision nor the subsequent Environment Court decision where his four lot subdivision consent was confirmed. Despite obtaining guidance from Associate Judge Lester in his minute of 23 February 2021, Dr Cossens persisted in his claim and did not modify it.
[23] For all these reasons, I am satisfied that the Council is entitled to costs on a 2B basis. These are awarded as sought in the table attached to the Council’s memorandum as to costs dated 18 October 2021, except for the claim for appearance at the first case management conference of $717, which is declined. The total awarded to the Council is $38,240 in costs and $976.38 in disbursements, making a total award of $39,216.38.
Solicitors:
Meredith Connell, Auckland
Copy To:
Mr Cossens
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