Criffel Deer Limited v Chief Executive of the Ministry of Primary Industries
[2024] NZHC 1394
•30 May 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-425-068
[2024] NZHC 1394
UNDER Part 20 of the High Court Rules IN THE MATTER OF
an appeal under s 57 of the Farm Debt Mediation Act 2019
BETWEEN
CRIFFEL DEER LIMITED
Appellant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF PRIMARY INDUSTRIES
Respondent
On the papers: Appearances:
K P Sullivan and J L Verbiesen for Appellant J B Orpin-Dowell for Respondent
Judgment:
30 May 2024
JUDGMENT OF GRAU J
[Costs]
Introduction
[1] On 19 April 2024, I dismissed Criffel Deer Ltd’s (Criffel’s) appeal on questions of law under s 57 of the Farm Debt Mediation Act 2019 (the FDMA).1
[2] Criffel had some success in its appeal. Contrary to the Ministry for Primary Industries’ (MPI)’s submission, I found that Criffel’s application to the MPI for a review of its decision was not made out of time. However, the MPI succeeded on the substantive issues that were subject of the MPI’s administrative review. The MPI also
1 Criffel Deer Ltd v Chief Executive of the Ministry of Primary Industries [2024] NZHC 862.
CRIFFEL DEER LIMITED v CHIEF EXECUTIVE OF THE MINISTRY OF PRIMARY INDUSTRIES [2024] NZHC 1394 [30 May 2024]
conceded that there had been a “Procedural Defect” in the review process when it did not provide Criffel with ANZ’s submissions. However, there was no material prejudice to Criffel, when Criffel was well aware of ANZ’s position.
[3] I indicated that the parties should try to agree as to costs, and saw no reason why the ordinary 2B scale costs would not apply.2 The parties have been unable to agree. The MPI submits that it should be awarded 2B costs in the normal way. Criffel submits costs should be reduced. The issue of costs therefore falls to be determined on the papers.
The positions of the parties
[4] On 24 April 2024, the MPI wrote to Criffel seeking an agreement on costs. The MPI also requested that Criffel advise of any areas of disagreement so that the MPI’s memorandum to the Court could target those areas. Criffel did not respond.
[5] On 3 May 2024, the MPI filed its memorandum seeking 7.3 days of costs on a 2B basis. Forecasting that Criffel might contest an award of 2B costs on the basis of the Procedural Defect discussed above, the MPI said the Procedural Defect was pre- litigation conduct, and so it could have no bearing on a final costs award.
[6] On 14 May 2024, Criffel filed a memorandum setting out its position on costs. Criffel submitted that the MPI’s conduct justified a departure from the usual order that costs follow the event because:
(a)The Chief Executive of the Ministry for Primary Industries (the Chief Executive) had concealed the Procedural Defect from Criffel. The proceedings in the High Court commenced in July 2023, but Criffel did not become aware of the MPI’s unilateral engagement with ANZ until 25 September 2023, when Criffel received a response from the MPI to an information request made by Mr Garnham in June 2023. It was only then that ANZ’s submissions to the MPI were disclosed to Criffel, well after proceedings had commenced.
2 Criffel Deer Ltd v Chief Executive of the Ministry of Primary Industries, above n 1, at [153].
(b)The Chief Executive’s explanation of the Procedural Defect was not forthcoming until the MPI filed two affidavits on 5 February 2024, only seven days before the substantive hearing was to occur, and after Criffel had already filed its submissions.
(c)Criffel was put to “some trouble and expense” in having to deal with the Procedural Defect and the belated application to admit the two affidavits. The affidavit issue also took up some time at the hearing and was refused by the Court.
[7] Criffel says that the Chief Executive should not be able to claim for the costs of preparing the Case on Appeal bundle when the MPI agreed to take responsibility for producing the bundle as a result of its failures to respond to timely requests for documentation.
[8] Accordingly, Criffel says the MPI’s costs should be reduced by 2.3 days to five days of scale costs on a 2B basis.
[9] On 15 May 2024, counsel for the MPI sought leave to respond to Criffel.3 Mr Orpin-Dowell notes that Criffel had never raised any costs issues with the MPI (despite being asked), therefore the MPI was not able to respond to what it considers are serious allegations.
[10] Mr Orpin-Dowell observes that the MPI disclosed ANZ’s submissions on 25 September 2023, in the MPI’s very first response to Mr Garnham’s request for documentation. There is no basis to suggest the MPI sought to conceal the Procedural Defect. And the MPI acknowledged the Procedural Defect in its submissions and took no objection to Criffel including additional materials in the Case on Appeal so that Criffel could advance whatever submissions it wished to.
[11] Mr Orpin-Dowell also observes that the issue of the Procedural Defect was, in any event, not relevant to the outcome of the appeal so the timing of the MPI’s
3 Leave is granted given Criffel’s failure to respond to the MPI after I had indicated the parties should attempt to agree costs.
explanation of the Procedural Defect cannot bear on costs. Further, Criffel never amended its pleadings to introduce the Procedural Defect as a ground of appeal, but the MPI nevertheless accepted and responded to submissions on that point. Mr Orpin- Dowell argues that the manner in which the MPI responded to the Procedural Defect could only have increased Criffel’s costs if Criffel could say that it would not have pursued the point had the MPI addressed it at an earlier stage, which is plainly not the case.
[12] In relation to the preparation of the Case on Appeal Mr Orpin-Dowell points out that, at the first case management conference, the MPI offered to prepare the Case on Appeal because, as the decision-maker, it made the most sense for it to be responsible for providing the documentary record of its decision to the Court. Mr Orpin-Dowell says that the allowance for preparing the Case on Appeal is available to the party that prepares the bundle, irrespective of who it is.
[13] Ultimately, the MPI says it has not contributed unnecessarily to the time or expense of the proceeding and acted completely reasonably.
Discussion
[14] Costs remain at the discretion of the Court.4 The determination of costs is intended to be predictable and expeditious,5 in keeping with the objective of securing just, speedy, and inexpensive decisions in litigation.6 The general principle is that costs will follow the event.7
[15] The Court may depart from the general principle set out above and reduce the costs to be awarded to a winning party if it has “contributed unnecessarily to the time or expense of the proceeding or a step in it”.8 The Court may also reduce costs for any reason that justifies a reduction.9 An award of costs usually only concerns the conduct of parties during litigation;10 conduct prior to the commencement of a proceeding is
4 High Court Rules 2016 (HCR), r 14.1.
5 HCR, r 14.2(1)(g).
6 Rule 1.2.
7 Rule 14.2(1)(a).
8 Rule 14.7(f).
9 Rule 14.7(g).
10 Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 (CA) at [160].
not misconduct in defending the proceeding or a step in the proceeding.11 An award of costs is not a method of securing punishment for a party’s substantive conduct.12
Preparation of Case on Appeal
[16] Beginning with the preparation of the Case on Appeal, on the basis of the materials before the Court, I do not accept Criffel’s submission. The MPI denies that it offered to prepare the materials due to disclosure failures and proposes a reasonable alternative explanation - the MPI, as the decision-maker, was in the best position to provide all of the relevant documentation. Criffel sought to rely on a minute of Harland J as supporting its proposition that the MPI offered to prepare the bundle in lieu of it having failed to provide disclosure.13 However, Harland J’s minute makes no mention of why the MPI offered to compile the Case on Appeal, beyond simply saying that that offer had been made, and that Mr Orpin-Dowell considered it likely that all relevant documents could be placed before the Court with the co-operation of the parties and without the need for a tailored discovery order.14 A later minute of Palmer J at the second case management conference noted that discovery had been discussed, but again made no suggestion that the MPI had not met its obligations.15
[17] Accordingly, I find that the MPI can claim its costs for preparing the Case on Appeal. The only delay that Criffel can point to in terms of discovery is the MPI’s delay in responding to Mr Garnham’s request in June 2023 for documentation (which was not provided under September). Although that delay strays into the timeline of conduct after proceedings had commenced, I do not consider that delay should result in reduced costs. As above, in my view, neither Harland or Palmer JJ were suggesting the MPI’s preparation of the Case on Appeal was due to anything other than its offer to do so and there is nothing to suggest otherwise.
11 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 26, [2007] 3 NZLR 169 at [41].
12 Taylor v Roper [2019] NZHC 16 at [19]–[21].
13 Garnham v Attorney-General HC Invercargill CIV-2023-425-68, 7 September 2023 (Minute of Harland J).
14 At [8].
15 Garnham v Attorney-General HC Wellington CIV-2023-425-68, 16 October 2023 (Minute of Palmer J) at [2].
The Procedural Defect
[18] I have found nothing to suggest that the MPI deliberately attempted to “conceal” the Procedural Defect from Criffel in the course of proceedings. The MPI provided ANZ’s submissions to Criffel on 25 September 2023, very shortly after the parties had attended their first case management conference. The MPI then conceded there was a Procedural Defect. Because of the Procedural defect the MPI did not oppose Criffel’s appeal proceeding, despite that it was otherwise moot.
[19] Criffel’s position on the Procedural Defect was a basis of its substantive claim at the hearing. Criffel is therefore effectively asserting that there should be a costs reduction as a result of the Procedural Defect itself. As I have already found, however, there was no material prejudice to Criffel or breach of natural justice that resulted from it. There is, therefore, no reason why costs should be reduced because of the Procedural Defect.
[20] Turning to the MPI’s late filing of two affidavits, I do not agree it contributed to the length or expense of the proceedings such that there should now be a reduction to the costs awarded to the MPI.
[21] When it is being claimed that a party unnecessarily pursued an argument or failed to admit evidence “An assessment of comparative hearing time and any other relevant matters may be necessary to do justice to both sides, taking into account a realistic appraisal of the end result”.16
[22] A comparable case is Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council, where the Court accepted there were matters which could have been conceded earlier, required address in openings and in evidence, but were ultimately not pursued.17 The issues did not occupy significant hearing time, however, as they were primarily legal issues to be argued on evidence that would be admitted in any event. The Judge did not consider that earlier concession of the issues before the
16 Barthurst Resources Ltd v L & M Coal Holdings Ltd [2021] NZCA 684 at [25].
17 Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council [2016] NZHC 41 at [35].
hearing would have reduced the hearing time in “any material way” so no adjustment to a scale costs award was made.18
[23] Criffel’s appeal did not become more complicated or run over its scheduled time as a result of the affidavits filed by the MPI. They were addressed in oral submissions. Criffel did not file additional written submissions. Ultimately, the affidavits were not admitted. I find no reason to make an adjustment on this basis.
Result
[24] I find no reason to depart from the scale costs calculated by the MPI in its memorandum. Costs will be awarded to the MPI accordingly.
Postscript: correction to judgment
[25] Counsel for the MPI has picked up that paragraphs [59]–[60] of the substantive decision state that Mr Garnham made a request for information to (and received information from) the Ombudsman, when it was the MPI to whom he made the request and received the information from.
[26] The decision will accordingly be amended and re-issued under r 11.10 of the High Court Rules 2016 (the “slip rule”).
Grau J
Solicitors:
Thomas Dewar Sziranyi & Letts for Appellant Crown Law Office, Wellington for Respondent
18 At [36].
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