Greenpeace New Zealand Incorporated v The Environmental Protection Authority

[2020] NZHC 1167

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-661

[2020] NZHC 1167

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

BETWEEN

GREENPEACE NEW ZEALND INCORPORATED

Applicant

AND

THE ENVIRONMENTAL PROTECTION AUTHORITY

First Respondent

AND

OMV GSB LIMITED

Second Respondent

On the papers

Counsel:

M Heard for Applicant

I Carter for First Respondent
T C Stephens for Second Respondent

Judgment:

29 May 2020

JUDGMENT OF ELLIS J (COSTS)

[1]    Late last year I declined an application for judicial review brought by Greenpeace New Zealand Inc (Greenpeace) against the Environmental Protection Authority (EPA) and OMV GSB Ltd (OMV).1 Broadly put, it concerned OMV’s plans for exploration and deep sea drilling for oil off New Zealand’s coastline. Greenpeace challenged the lawfulness of the EPA’s decision-making in relation to the prerequisite

1      Greenpeace New Zealand Inc v The Environmental Protection Authority and OMV GSB Ltd [2019] NZHC 3285. To the extent necessary this costs judgment should be read in conjunction with that one.

GREENPEACE NEW ZEALND INC v THE ENVIRONMENTAL PROTECTION AUTHORITY AND ANOR [2020] NZHC 1167 [29 May 2020]

consents and approvals under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZA) and related regulations.

[2]    In my judgment I recorded that I had not heard from counsel on costs but that “I would think” that standard 2B costs would follow the event in the usual way. I said memoranda could be filed in the absence of agreement. There was no agreement. Memoranda have duly been filed.

The claims for costs

[3]    The EPA seeks costs from Greenpeace in the amount of $26,051 plus disbursements of $220. They also seek costs for preparing their costs memorandum. The claimed costs are itemised.

[4]    OMV seeks costs from Greenpeace in the amount of $27,246 plus disbursements of $220. They also now seek costs for preparing their costs memorandum. The claimed costs are itemised.

Greenpeace’ position

[5]    Greenpeace relies on r 14.7(e) of the High Court Rules (Rules) and says no— or reduced—costs should be payable because the proceeding was brought genuinely in the public interest, had merit and did not involve delay or unreasonable conduct. In the alternative it submits that Greenpeace should only pay one set of costs in accordance with standard practice for judicial review proceedings.

[6]Specific issue is also taken with the costs claimed in relation to:

(a)the appearances on 7 and 13 November 2019 (which Greenpeace says should be categorised as call overs rather than case management conferences); and

(b)preparation of the common bundle.

Discussion

Rule 14.7(e) – the public interest exception

[7]    Under rule 14.1 of the Rules, costs are in the general discretion of the Court. The discretion must, however, be exercised in accordance with the general principles in rule 14.2 and the provisions of rules 14.3 to 14.10.2

[8]    Rule 14.2(a) articulates the general rule that the unsuccessful party should pay costs to the party who succeeds. But rule 14.7 which provides:

Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or

may reduce the costs otherwise payable under those rules if -

…

(e) the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding;

[9]    Although the risks and effects (both detrimental and beneficial) of deep sea exploration and drilling for oil may be contestable, I have little hesitation in concluding that there is a strong public interest in those risks and effects and in that contest. And I also have little hesitation in concluding that, in taking an active role in opposing such drilling, Greenpeace is acting genuinely as a “watchdog of the public interest” in one side of the debate. Indisputably, Greenpeace was not acting in its own private interests in bringing the litigation.3

[10]   Performance of such a “watchdog” role can and does provide a valuable service to the community. It is fundamental to the rule of law that litigation which exposes and tests public law issues in controversial areas should be brought to Court.4 And as Greenpeace says, the policy underlying r 14.7(e) is that public interest litigants are not dissuaded from bringing such cases. The existence and determination of such litigants

2      Glaister v Amalgamated Dairies Limited [2004] 2 NZLR 606 (CA); Shirley v Wairarapa District Health Board [2006] 3 NZLR 523 (SC) at [16]–[17].

3      Ngati Whatua Orakei Trust v Attorney-General [2017] NZHC 1156 at [19].

4      Te Whare o Te Kaitiaka Ngahere Inc Society v West Coast Regional Council [2015] NZCA 356 at [27].

help mitigate access to justice issues that arise for private individuals who may wish to protest a public body’s decision but lack the resources to do so.5

[11]   Although (as the respondents emphasise) Greenpeace was not ultimately successful, by definition, success cannot be the test. So in Greenpeace New Zealand Inc v Minister of Health, this Court recognised that it was appropriate for concerned lobby groups—Greenpeace, in that case—to test executive decision-making through the courts and discouragement of that by the making of an adverse costs awards is not appropriate unless the application was “totally lacking merit”.6

[12]   I acknowledge the respondents’ submission that the regulations at issue in this case were clear in their exclusion of the public from participating in the relevant decision-making process. But I am not prepared to say that the application for review in the present case was wholly meritless. The very fact that the public were excluded from the process was a matter that deserved ventilation and scrutiny. Moreover, there were aspects of the application and decision-making processes which (as recorded in my judgment) I found “curious”.7

[13]   Nor am I able to accept the suggestion that Greenpeace did not act reasonably here because it delayed in bringing the proceedings and did not exercise its (limited) statutory rights of appeal. I referred to the latter point at [120] of my judgment; the decision in respect of which an appeal right existed was not Greenpeace’ principle concern. And as for delay, the reality is that (by comparison with most litigation) the proceedings were brought and determined expeditiously. Ultimately, the parties and the Court were able to deal with the substantive application for review (rather than the original application for interim orders) on an urgent basis and without prejudicing OMV’s drilling programme.

[14]For these reasons, I am of the view that costs should lie where they fall.

5      Greenpeace emphasises the unavailability of legal aid for civil environmental cases.

6      Greenpeace New Zealand Inc v Minister of Health HC Wellington CP 85-99, 7 May 1999 at 18. That case involved an unsuccessful application for review of the Minister’s decision to issue an amendment to a Food Standard relating to genetically modified food.

7 Above, n 1 at [116].

Two sets of costs?

[15]   Although (in light of the conclusion just reached) it is not strictly necessary to consider Greenpeace’s alternative submission, for completeness I record that I would not have ordered that two sets of costs were payable.

[16]   Although the wider interests of the respondents are different (the EPA being the regulator and OMV being the regulated) their interests in defending Greenpeace’s claim were certainly overlapping, if not wholly common. There was no potential conflict between the two respondents in terms of how Greenpeace ran its case and no distinction was drawn between them in the statement of claim in terms of the relief sought. There were no obvious reputational issues that might have warranted separate representations.

[17]   The short point is that, as my decision makes clear, the case was concerned with the legality of what was called the “joint processing” decision. It was an orthodox application for judicial review that focused on the interpretation of the relevant Act and Regulations in light of the uncontested evidence. In these circumstances a double award of costs against Greenpeace would not, in my view, have been justified.

Other matters

[18]   Given my conclusion above, it is not necessary to express a view on whether the 7 and 13 November appearances were case management conferences or call overs or on issues around the costs of preparing the common bundle and I do not do so.

Conclusion

[19]Costs are to lie where they fall, for the reasons I have given.

Rebecca Ellis J

Solicitors:

Lee Salmon Long, Auckland for Applicant

Simpson Grierson, Wellington for Second Respondent