Friends of Marineland of New Zealand Incorporated v Napier City Council

[2012] NZHC 1792

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV 2010-441-000825 [2012] NZHC 1792

UNDER  the Judicature Amendment Act 1972 and the Local Government Act 2002

BETWEEN  FRIENDS OF MARINELAND OF NEW ZEALAND INCORPORATED

Applicant

ANDNAPIER CITY COUNCIL Respondent

On the papers

Counsel:         P Ross for the Applicant

M Lawson for the Respondent

Judgment:      20 July 2012

JUDGMENT OF MALLON J (Costs)

[1]      Friends of Marineland sought judicial review of the Council’s decision to close  Marineland  (a  long-standing  tourist  attraction  in  Napier).     Friends  of Marineland claimed that the Council pre-determined its decision and the consultation was inadequate.  In my judgment given on 17 May 2012 I dismissed their claim.  I reserved costs.

[2]      The Council seeks costs on a 2B basis.  It calculates these at $22,372.  It says that the usual principle, that costs should follow the event, should be applied.  It says that the proceeding was not in the public interest.  It says that Friends of Marineland represented a small minority who doggedly wished Marineland to continue despite

clear directives against animals held in captivity.  It further says that the claim was

FRIENDS OF MARINELAND OF NEW ZEALAND INCORPORATED v NAPIER CITY COUNCIL HC NAP CIV 2010-441-000825 [20 July 2012]

without substance, poorly pleaded and presented, and drawn out by a failure to comply with Court deadlines.

[3]      I agree that costs should follow the event.  I also agree that 2B is the correct category.

[4]      However I disagree that there was no public interest in the proceeding.  The future of Marineland was of high interest to the people of Napier.   Consultation attracted a large number of submissions.  Many of these submissions were in favour of a redeveloped Marineland.   Friends of Marineland did not stand to benefit financially from this proceeding.  Their concern was to ensure that the Council had acted lawfully in making the decision with which they did not agree.   There is a public interest in ensuring local authorities act lawfully in making decisions of this kind.

[5]      I also disagree that Friends of Marineland brought and presented the case in a way that added to the Council’s costs.  It is clear that Friends of Marineland did not have significant resources.  As such, the claim needed to be brought economically. The pleadings and the presentation are a reflection of that.   Moreover, although Friends of Marineland were slow to pursue the claim, it was the Council’s decision to pursue interlocutory applications which, in the event, were only partially successful.  The Council already has a costs order in its favour in respect of those applications.

[6]      I consider that an order for costs should be made in the Council’s favour in the sum of $12,000. This is the sum which I understand to have been paid into Court as security for costs.   It is a little over half of 2B costs.   That is an appropriate reflection of the public interest nature of the claim.

Mallon J

Solicitors:

Cliff Church Legal, Hastings for the Applicant

Lawson Robinson, Napier for the Respondent