Environmental Law Initative v Minister for Oceans and Fisheries
[2025] NZHC 3516
•19 November 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-541
[2025] NZHC 3516
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of decisions of the Minister of Oceans and Fisheries under s 13 of the Fisheries Act 1996
BETWEEN
THE ENVIRONMENTAL LAW INITATIVE
First Applicant
DALLAS WILLIAMS on behalf of the Ngāti Hau and Ngāti Kaharau Hapū ki Hokianga
Second Applicant
AND
MINISTER FOR OCEANS AND FISHERIES
First Respondent
NEW ZEALAND ROCK LOBSTER INDUSTRY COUNCIL INCORPORATED
Second Respondent
SEAFOOD NEW ZEALAND LIMITED
Third Respondent
Hearing: On the papers Counsel:
D M Salmon KC, I T F Hikaka and H M Reynolds for Applicants N C Anderson, S J Smith and D Ranchhod for First Respondent
Judgment:
19 November 2025
JUDGMENT OF BOLDT J
(Costs)
THE ENVIRONMENTAL LAW INITATIVE v MINISTER FOR OCEANS AND FISHERIES [2025] NZHC
3516 [19 November 2025]
Introduction
[1] On 14 February 2025, I declared unlawful a decision of the Minister for Oceans and Fisheries, setting the total allowable catch in the CRA1 fishery for the 2023/24 fishing year.1
[2] I reserved the question of costs. I recorded that the proceeding, while compressed into a two day hearing, was technical and complex, and I had little doubt each of the relevant steps required a comparatively large amount of time to complete. I indicated a preliminary view that the Minister should pay the Environmental Law Initiative (ELI)’s costs on a 3C basis.2
[3] The parties were not able to agree on costs. While the Minister and ELI agree on the appropriate time banding for each step of the proceeding, they differ as to whether the proceeding as a whole should be placed in category two or category three for costs purposes.
[4] In its application for costs, ELI supported my preliminary indication that the proceeding is appropriately placed in category three. ELI observed that the case required highly skilled and experienced counsel and noted that the expert evidence filed by all parties was technical and extensive. The case dealt with a range of important issues, including the way Fishing New Zealand (FNZ), which is part of the Ministry of Primary Industries, engages with hapū and iwi throughout the country. It also has broad implications for the way FNZ manages fisheries, especially where fishing endangers the wider marine ecosystem.
[5] On behalf of the Minister, Mr Anderson did not contest ELI’s assessment of the complexity of the proceeding, or the level of skill or experience it required on the part of counsel. Rather, he submitted the case should be in category two because the parties reached an agreement to that effect early in the proceeding. In a joint
1 Environmental Law Initiative v Minister for Oceans and Fisheries [2025] NZHC 177. CRA1 is New Zealand’s northernmost red rock lobster (or crayfish) fishery.
2 At [123].
memorandum filed prior to the first case management conference, both parties agreed category two was appropriate for costs purposes.
[6] Mr Anderson argued there is no reason to depart from the agreement the parties reached about categorisation notwithstanding the actual complexity of the case. ELI seeks $71,306 in costs, while the Minister submits the correct figure is $48,278. Disbursements of $20,804.55 are agreed.
Applicable principles
[7] Applications for costs are governed by Pt 14 of the High Court Rules 2016 (the Rules). Rule 14.1 provides, as an overarching principle, that all questions of costs are at the discretion of the Court, though the Rules set out a series of general principles which are designed to ensure awards are predictable, relatively simple and broadly consistent. Awards should reflect the complexity and significance of the proceeding.3
[8] My substantive judgment is under appeal. Subject to the decision of the Court of Appeal, there is no dispute ELI is entitled to an award. The sole issue is whether I was correct in my preliminary suggestion that the proceeding should be categorised as 3C.
[9] Category three proceedings are “proceedings that because of their complexity or significance require counsel to have special skill and experience in the High Court”, while category two proceedings are “proceedings of average complexity requiring counsel of skill and experience considered average in the High Court.”4
[10] Rule 14.3(2) provides that the Court may “at any time determine in advance a proceeding’s category”. Having done so, that categorisation “applies to all subsequent determinations of costs in the proceeding unless there are special reasons to the contrary”.5
3 High Court Rules 2016, r 14.2(1)(b).
4 Rule 14.3(1).
5 Rule 14.3(2).
Discussion
[11] When I reached my preliminary view that costs should be assessed on a 3C basis, I had not seen the parties’ joint memorandum agreeing that category two was appropriate. That early assessment was not considered by a Judge prior to the hearing. The agreement was recorded in a joint case management memorandum and the Registrar made agreed timetabling directions by consent. ELI submits, as a result, that no order was made regarding the suggested categorisation, meaning no determination was made under r 14.3(2). It submits I am entitled to categorise the proceeding as I see fit, and that ELI is not obliged to show special reasons to depart from the joint assessment.
[12] The Minister submits the fact the early categorisation agreement was not the subject of judicial confirmation makes no difference. For example, in Lin v Commissioner of Inland Revenue, Thomas J observed:6
[13] I agree with Ms Deligiannis that the plaintiff is effectively requesting a change of the costs classification. The fact the Associate Judge did not specifically refer to any classification in his Minute does not change the fact that the parties had agreed to category 2 and had put that in writing to the Court. No change in the classification was signalled by the plaintiff prior to the hearing.
…
[15] The real issue is whether there are “special reasons” to justify post trial re-categorisation of costs from category 2 to category 3.
[13] The Minister is right that ELI remains bound by the parties’ early assessment in the absence of special reasons to the contrary.
[14]In Body Corporate 189855 v North Shore City Council, Venning J observed:7
[4] The onus is on the plaintiffs to satisfy the Court that special reasons can be made out that justify a change in category after trial. What might constitute special reasons to the contrary or, more accurately, what might not constitute special reasons was considered by the Court in J L Tindall v Far North District Council (unreported HC AK CIV 2003-488-000135 25 May 2007). In that case Winkelmann J referred to the earlier decision of
6 Lin v Commissioner of Inland Revenue [2017] NZHC 1548.
7 Body Corporate No.189855 v North Shore City Council HC Auckland CIV 2005-404-5561, 2 October 2008.
Capital Property Limited v Cook (HC AK CP 257-IM-02 3 February 2003) where Fisher J said:
I accept that a costs categorisation of the kind made at a judicial conference … does not bind subsequent courts (as to skill category see in particular Rule 48(2)) but it is at least persuasive. There are policy reasons for not departing from a judicial prediction of that sort without good reason. It can be expected that in choosing how to conduct the proceedings the parties will have been influenced by the advance indication as to the level at which costs would ultimately be addressed.
[15]In Tindall, Winkelmann J observed:8
[11] When a party is seeking a retrospective reclassification of entire proceedings at the point in time when judgment has been delivered, the fact that the skill classification initially determined for the proceedings is not adequate is unlikely to be itself a “special reason”…It is not apparent that anything occurred between the time of the initial category 2 classification and the time of trial to expand the scope of the likely issues to be traversed, and the consequent complexity and scope of the tasks involved.
[16] If I were categorising this proceeding from scratch, I would have placed it in category three. It was dense, highly technical and factually expansive. It covered a range of important issues including tikanga-appropriate ways of ensuring the input and participation of tangata whenua as required by s 12(1)(b) of the Fisheries Act 1996.
[17] But it is fair to note that the complexity of the proceeding was dictated by the applicant; its scope and scale were in ELI’s hands throughout. This is not a case that evolved or expanded unexpectedly, or where the actions of the respondents made it more difficult or complicated than ELI anticipated. Counsel’s frank acknowledgement that they underestimated the complexity of the case is not a special reason justifying reclassification.9 And while I would have placed the case in category three, I acknowledge that assessment is one on which reasonable minds could differ. This is not a case where it would be manifestly unjust to hold the parties to their original agreement.
[18]It follows, applying r 14.3(2), that the proceeding remains in category two.
8 J L Tindall v Far North District Council HC Auckland CIV-2003-488-135, 25 May 2007.
9 At [11]. Body Corporate No.189855 v North Shore City Council above n 7, at [6]–[9].
[19] All other questions are agreed. I award ELI the sum of $48,278 in costs, plus disbursements of $20,804.55.
Boldt J
Solicitors:
Mills Lane Chambers, Auckland for Applicant
Te Tari Ture o Te Karauna | Crown Law Office, Wellington for First Respondent Hawkestone Chambers, Wellington for Second and Third Respondents
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