Greenpeace of New Zealand Incorporated v Minister of Energy and Resources

[2013] NZHC 1110

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1897 [2013] NZHC 1110

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF     an application for judicial review

BETWEEN  GREENPEACE OF NEW ZEALAND INCORPORATED

First Applicant

ANDTE RUNANGA O TE WHANAU-A- APANUI

Second Applicant

ANDTHE MINISTER OF ENERGY AND RESOURCES

First Respondent

ANDPETROBRAS INTERNATIONAL BRASPETRO BV

Second Respondent

Hearing:         On the papers

Counsel:         D M Salmon and ITF Hikaka for Applicants

S M Kinsler for First Respondent
T C Stephens and N A Taylor for Second Respondent

Judgment:      15 May 2013

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.15pm on the 15th day of May 2013.

COSTS JUDGMENT OF MACKENZIE J

GREENPEACE OF NEW ZEALAND INC V THE MINISTER OF ENERGY AND RESOURCES HC WN CIV-

2011-485-1897 [15 May 2013]

[1]      In his judgment delivered on 22 June 2012, Gendall J ordered costs to the first and second respondents on a 2B basis.  He directed that disbursements be fixed by the Registrar. He reserved leave to counsel to submit memoranda if necessary.

[2]      The parties have filed memoranda dealing with three issues over which there is disagreement.  Because Gendall J has since retired, the matter has been referred to me for determination.

[3]      The first item in dispute is a claim by the second respondent Petrobras for an allowance of two days, totalling $3,760, under item 2 of sch 3 of the High Court Rules, for “commencement of defence by defendant”.1

[4]      Counsel for the applicants submits that instead of an allowance under item 2 there should be an allowance under item 3.5 for a notice of appearance.  Preparation of notice of appearance under 3.5 carries a time allowance of only 0.2 days.

[5]      Petrobras did not file a statement of defence.  It filed a notice of appearance in which it indicated that it opposed the plaintiffs’ claims and wished to be heard in the proceeding. That notice said “the ground on which the second defendant opposes the plaintiffs’ claims are essentially as set out in the statement of defence dated

21 October 2011 filed by the first defendant”.

[6]      Item 2 of the schedule is stated to cover “receiving instructions, researching facts and law, and preparing, filing, and serving statement of defence or notice of opposition”.   There is a substantial time allowance for these steps, two days for band B.   Petrobras was named as a respondent.   While there were no allegations specifically directed to its actions, the challenge to the Minister’s decision could, if successful, have put Petrobras’ permit in jeopardy.   In the circumstances, detailed and close consideration of the claim was a necessary step by Petrobras. A reasonable time for a step is to be determined under r 14.5(1) of the High Court Rules.   I consider that neither item 2 nor item 3.5 is directly applicable, under r 14.5(1)(a). Item 2 does not, strictly speaking, apply in its totality, because no statement of

defence or notice of opposition was prepared and filed.   Item 3.5 is not directly

1      All references in this judgment to sch 3 are to that schedule as in force prior to 13 June 2012.

applicable.  A notice of appearance is ordinarily a relatively formal document.  The allowance for item 3.5 does not cover some of the steps covered by item 2 which were properly taken here, namely receiving instructions and researching facts and law.  I must therefore, if possible, determine a time by analogy with that schedule.  I consider item 2 is a closer analogy than item 3.5, and that an analogy with item 2 can usefully be made.

[7]      Accordingly, I allow the claim for $3,760 as claimed by Petrobras.

[8]      The second item challenged is a claim for three memoranda, under item 4.10. The applicants claim that these were not filed for case management conferences and as such they are not of the kind contemplated by item 4.10.  Again, the claim falls to be considered under r 14.5(1)(b), by analogy with the schedule.   I consider that item 14.10 provides a sufficient analogy that the memoranda should be allowed.

[9]      Two of the memoranda were joint memoranda.   Counsel for the applicant submits that only one respondent should be allowed costs.  I do not accept that submission.     Counsel  for  each  respondent  was  equally  responsible  for  the preparation of each joint memorandum, and each should have costs.

[10]     The first respondent claims costs for filing an amended statement of defence, under item 3.6.   Counsel for the applicants submits that item 3.6 is not properly available as the amended statement of defence was not filed in response to an amended statement of claim, or in response to an amended pleading from the applicants.  Counsel for the first respondent submits that the filing of an amended defence was necessary and followed the giving of further particulars of the original statement of claim in response to a notice seeking further and better particulars.

[11]     The filing of further particulars is analogous to an amended pleading as referred to in item 3.6.  Counsel for the first respondent needed to exercise judgment as to whether the Court would be assisted by an amended statement of defence.  I consider that the amended statement of defence was a proper pleading in response to the  further  particularisation of  the  claim.    I  allow  the  claim  for  $1,128  under item 3.6.

[12]     For these reasons, I confirm the costs payable to the respondents as claimed, namely $20,304 to the first respondent and $19,176 to the second respondent.

[13]     Counsel for the applicant also disputes the second respondent’s claim for a disbursement of $5,599.98 for photocopying.  Gendall J directed that disbursements were to be fixed by the Registrar.  Counsel for the applicant submits that it would be appropriate for the Registrar to confirm the correct amount of disbursement properly claimable under this head.  Counsel for Petrobras submits I have all the information required to make a decision on this issue.  Had I been the trial judge, I would have been minded to resolve disbursements.  As I was not the trial judge, I consider that the disbursements are better fixed by the Registrar in accordance with Gendall J’s direction.

“A D MacKenzie J”

Solicitors:         Lee Salmon Long, Auckland, for Applicants

Crown Law, Wellington, for First Respondent
Simpson Grierson, Wellington, for Second Respondent