H & S Chisholm Farms Limited v Waikato Regional Council

[2018] NZHC 2924

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-23

[2018] NZHC 2924

BETWEEN

H & S CHISHOLM FARMS LIMITED

Appellant

AND

WAIKATO REGIONAL COUNCIL

Respondent

Hearing:	On the papers at Hamilton
Judgment:	20 November 2018

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 20 November 2018 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

DLA Piper, Auckland

Luke Cunningham Clere, Wellington

H & S CHISHOLM FARMS LIMITED v WAIKATO REGIONAL COUNCIL [2018] NZHC 2924 [16

November 2018]

[1] In my judgment of 17 August 2018 I allowed H & S Chisholm Farms Ltd (“Chisholm Farms”) appeal against directions made in the Environment Court, and reserved costs.1 Chisholm Farms has now sought costs against Waikato Regional Council. Chisholm Farms acknowledges that the Costs in Criminal Cases Act 1967 applies but submits:

(a)Section 8 of the Costs in Criminal Cases Act permits costs where an appeal involves a “difficult or important point of law”.

(b)A court is not restricted to the scale costs provided in the Act,2 but rather can order costs in excess of the scale provided “if having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable”.3

(c)It is clear from the face of the judgment that important issues were raised and that the appeal involved a difficult/complex issue of law with a broader significance beyond the facts of this case, both in terms of other similar Resource Management Act 1991 prosecutions and more generally in determining the financial capacity of offenders for sentencing purposes.

(d)As a result Chisholm Farms seeks costs on a 2B basis in a total sum of

$11,484.50.

Discussion

[2]    As Ms O’Sullivan for Waikato Regional Council noted in her submissions in opposition, it is well established that costs in a criminal appeal “will not normally be awarded above scale (or even at scale) unless there are clear grounds relating to the

1      H & S Chisholm Farms Ltd v Waikato Regional Council [2018] NZHC 1885.

2      Costs in Criminal Cases Regulations 1987, Schedule 1, Subpart C.

3 Costs in Criminal Cases Act 1967, s 13(3).

way in which the unsuccessful appellant has conducted itself”.4 An award of costs tends to be reserved for exceptional cases. As Harrison J noted in Law v Wilson:5

… the whole purpose of the exception allowed by s 13(3) is to cover cases … where either the prosecutor or defence has been put to additional cost by the way the other party has elected to conduct his or her case. A party who makes a conscious decision to add the degree of complexity inherent in a decision to lead further evidence must acknowledge and face the risk of adverse cost consequences.

[3]    This was not the case in the present appeal. Instead, as Ms O’Sullivan noted, the appeal did not arise as a result of any steps taken by the Waikato Regional Council, nor did the Waikato Regional Council in any way put the appellant to additional costs. Instead the issue at appeal was a point of law raised mid-sentencing by the sentencing Judge in the Environment Court, and while as noted the case did involve important issues, the very importance of those issues meant that Waikato Regional Council acted appropriately as a contradictor to the issues raised in support of the appeal.   As     Ms O’Sullivan also notes the appeal succeeded on grounds different from those initially advanced by the appellant.

[4]    In addition, and perhaps most importantly, the outcome of the appeal was on a relatively narrow issue and did not affect the overall matters at issue in the litigation between the parties: three charges of contravening the Resource Management Act by permitting a contaminant (farm animal effluent) to be unlawfully discharged onto land into water on 23 June and 7 July 2017, and by permitting contravention of an Abatement Notice issued against Chisholm Farms on 27 June 2017. Chisholm Farms had pleaded guilty to those charges and its liability on those substantive proceedings remains unchanged by the appeal. Additionally, as the parties advised this Court the Environment Court had already advised the total amount of the fine would not have been affected by the provision of the information directed by the sentencing Judge that Chisholm Farms appealed against.

[5]    Taking these various matters into account I therefore conclude that costs should lie where they fall.

4      King v South Waikato District Council [2013] NZHC 1814 at [10].

5      Law v Wilson, HC Auckland A110/01, 17 March 2003, at [15].

Decision

[6]The parties are to bear their own costs.

Powell J