Hall v Brown

[2025] NZHC 1314

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001176

[2025] NZHC 1314

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review of a decision under Clause 6 of Schedule 2 of the Local Government (Auckland Council) Act 2009

BETWEEN

PHILIP RAYMOND HALL

Applicant

AND

Billy Brown, Zoe Hawke, Kiwi Johnson, Mook Hohnek, David Taipari, Danella Rorebeck, Taumata Toki, Nick Maaka, John McEnteer, Riikii Minhinick, Aperahama Edwards, Michael Baker, Glenn Wilcox, Marama Royal, Karen Wilson, Edwards Ashby, William Peters, Anahera Morehu, Georgina Curtis-Conelly, Parekawhia McLean, AS MEMBERS OF THE SELECTION BODY ESTABLISHED UNDER THE LOCAL GOVERNMENT (AUCKLAND COUNCIL) ACT 2009

First Respondent

THE INDEPENDENT MĀORI STATUTORY BOARD

Second Respondent

Judgment:

(On the papers)

26 May 2025

JUDGMENT OF BREWER J

(Costs)

This judgment was delivered by me on 26 May 2025 at 11 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

HALL v BROWN [2025] NZHC 1314 [26 May 2025]

Introduction

[1]This is a costs judgment.

[2]On 18 February 2025, I gave judgment in favour of the applicant,

Mr Raymond Hall.1

[3]        Mr Hall challenged by judicial review the decision of the first respondent that he was not eligible to be appointed as a mataawaka member of the Independent Māori Statutory Board (the Board). I found in favour of Mr Hall and made declarations that the first respondent’s decision as to Mr Hall’s eligibility was unlawful and that Mr Hall is eligible to be considered for appointment to the Board as a mataawaka representative.2

[4]In my judgment, I said:3

I award costs to Mr Hall to be calculated on a 2B basis to include second counsel.

[5]        I did this having canvassed the award of costs with counsel at the hearing and been assured that 2B costs was the appropriate measure.

[6]        On 28 March 2025, the applicant filed a memorandum, dated 12 March 2025, particularising the costs and disbursements sought. On 2 April 2025, the first respondent filed submissions without leave, challenging the costs sought by the applicant and claiming costs. The applicant filed a memorandum on 3 April 2025, noting the first respondent did not have leave to file submissions, opposing leave to file being granted, and seeking leave to file a response, should leave be granted.

[7]        I grant leave to the first respondent to file submissions. As the applicant has provided a fulsome summary of costs sought, I see no utility in granting leave to file a response to the first respondent’s submissions and leave to respond is accordingly declined.

1      Hall v Brown [2025] NZHC 197.

2      At [39]–[40].

3 At [43].

First Respondent submissions

[8]        The first respondent takes issue with a number of the allocations claimed by the applicant, namely costs relating to:

(a)the unsuccessful application for orders that Atkins Holm Majurey not act for the first respondent in this matter; and

(b)the predominantly unsuccessful application for tailored discovery.

[9]        The first respondent also challenges the disbursements claimed, submitting that the costs relating to “costs briefing witnesses, affidavit of Marama Royal” cannot be claimed as disbursements as Ms Royal is a private investigator and fees for private investigators are not set out in r 14.12(1)(b) of the High Court Rules 2016 (the Rules).

[10]      The first respondent also seeks costs of $3,000 in acknowledgement of the costs incurred by the first respondent due to the applicant’s late filing of an affidavit. They say the applicant offered to pay this sum in correspondence in November 2024 and on 2 April 2025. That correspondence is not before the Court and the applicant has not made reference to it. I do not award these costs.

[11]The first respondent seeks further costs, as discussed below.

Costs relating to recusal application

[12]      The applicant seeks costs for the following in relation to the recusal application:

(a)filing interlocutory application for orders that Atkins Holm Majurey not act;

(b)filing memorandum of counsel for case management conference;

(c)appearance at case management conference, with appearance of second counsel;

(d)preparation of submissions of counsel for interlocutory application;

(e)preparation of bundle;

(f)appearance at recusal hearing, with appearance of second counsel; and

(g)filing memorandum of counsel (submission authorities).

[13]      I note that, as the first respondent observes, there was no recusal hearing. I ultimately declined the application for recusal at the substantive hearing.4 As such, I accept the first respondent’s submission that the costs claimed in relation to a “recusal hearing” cannot be awarded.

[14]      As to the costs relating to the case management appearances before Woolford J on 16 August 2023 and Muir J on 18 October 2023, I find that, as the first respondent was ultimately successful in opposing the application, costs should be awarded to them, in accordance with r 14.2(1)(a) of the Rules. It follows that the disbursements sought for the filing of the interlocutory application are not awarded to the applicant.

Costs relating to application for tailored discovery

[15]      Contrary to the first respondent’s absolutist submission that the applicant failed in his application for tailored discovery, the applicant was partially successful.5 As the Court of Appeal held in Weaver v Auckland Council, “success on more limited terms is still success.”6 While the partial failure by the plaintiff warrants a reduction in the costs to be awarded,7 there is no basis to award costs to the first respondent. I consider a reduction of one quarter of the costs sought is sufficient to recognise the partial success by the first respondent in opposing the application.

[16]      The disbursement sought by the applicant for the filing of the interlocutory application is awarded.

4      Hall v Brown HC Auckland CIV-2023-404-1176, 11 February 2025 (Minute of Brewer J).

5      Hall v Brown [2024] NZHC 1897.

6      Weaver v Auckland Council [2017] NZCA 330 at [26].

7      High Court Rules, r 14.7(d). Also see Environmental Law Initiative v The Director-General of the Department of Conservation [2025] NZHC 965.

Private investigator

[17]      The final issue to determine is whether the Court should award the applicant disbursements for the costs of preparing the affidavit of Ms Royal. The first respondent is correct that r 14.12(1)(b) of the Rules does not specifically provide for the fees of a private investigator and so they would need to be approved by the Court.8 In addition to this, a disbursement must be specific to the conduct of the proceeding, reasonably necessary for the conduct of the proceeding, and reasonable in amount.9

[18]      I do not consider the claim for the reimbursement of the private investigator’s fees can appropriately be made as one for disbursements. As noted in Pangani Properties Ltd v Lloyd, “preparation of briefs of evidence is specifically included in the sch 2 cost items and is separately claimable on that basis.”10 Cases in which disbursements have been awarded for evidence obtained by a private investigator have involved evidence being given by the private investigator, in addition to the evidence obtained.11 As in Pangani, it is difficult to say that the expense here is something other than one “which would ordinarily be incurred for legal professional services.”12

[19]      Accordingly, I decline to award disbursements for the fees of the private investigator and instead consider the costs of briefing Ms Royal’s affidavit are included in the applicant’s claim for the preparation of affidavits for an affidavit hearing.

Costs awarded

[20]The following table sets out the costs awarded to the applicant:

Date of document	Description	Item	Days
31 May 2023	Commencement of Proceeding	1	3
16 June 2023	Applicant’s Bundle of Initial Disclosure (List of documents on discovery)	20	2.5

8      High Court Rules 2016, r 14.12(2).

9      Rule 14.12(2)(b)–(c).

10 Pangani Properties Ltd v Lloyd [2019] NZHC 863 at [55].

11 See for example Intechinc v Anura Ltd (formerly named Orion Marine Ltd) [2024] NZHC 2487; and Advanced Hair Studio (Europe) Ltd v Clarke HC Dunedin CIV-2009–412–615,11 September 2009.

12 Pangani Properties Ltd v Lloyd, above n 10, at [55].

Preparation for First Case Management Conference	10	0.4
30 June 2023	Filing (Joint) Memorandum of Counsel for First Case Management Conference on 5 July 2023	11	0.4
26 January 2024 (tailored disc.)	Filing Notice of Interlocutory Application by Applicant for Tailored Discovery	22	0.6
31 January 2024 (tailored disc.)	Filing Memorandum of Applicant for Telephone Conference	11	0.4
16 February 2024 (tailored disc.)	Preparation of Memorandum of Applicant Seeking Directions for Tailored Discovery	11	0.4
20 February 2024	Appearance at Case Management	13	0.3
(tailored disc.)	Conference
Appearance of Second Counsel	0.15
18 March 2024 (tailored disc.)	Preparation of Memorandum of Submissions in support of Tailored Discovery	24	1.5
24 June 2024 (tailored disc.)	Appearance at Hearing for Tailored Discovery Appearance of Second Counsel	34 35	0.5 0.25
Inspection of documents	21	1.5
Preparing for Affidavit hearing	30	3
Second counsel preparation for affidavit hearing	33	1.5
25 November 2024	Synopsis of submissions of applicant	24	1.5
25 November 2024	Applicant’s Authorities	30	3
Preparation of bundle	33A	0.5
11 February 2025	Appearance at hearing	34	1
Appearance of second counsel	35	0.5
22.9
Total: $54,731
Reduction to costs	(4.1 x 2,390) = 9,799	Total with
for tailored discovery	9,799/4 = 2,449.75	reduction:
54,731 – 2,449.75 = 52,281.25	$52,281.25

[21]The following table sets out the costs awarded to the first respondent:

Date	Description	Item	Days
11 August 2023	Filing opposition to interlocutory application	23	0.6
16 August 2023	Appearance at case management conference	13	0.3
Preparation of written submissions	24	1.5
18 October 2023	Appearance at case management conference	13	0.3

11 December 2023	Filing memorandum of counsel regarding adjournment of telephone conference	11	0.4
3.1
Total: $7,409

[22]      The costs awarded to the first respondent are deducted from the costs awarded to the applicant.13 Accordingly, the costs awarded to the applicant are $44,872.25.

Disbursements awarded

[23]The disbursements awarded to the applicant are as follows:

Filing fee — commencement	$540
Interlocutory application for tailored discovery	$200
Court fees	$4,973
Printing charges	$1,737.40
NZLS Law Library Charges	$448.50
Total	$7,898.90

Result

[24]      The first respondent is to pay the applicant costs of $44,872.25 and disbursements of $7,898.90.

Brewer J

Solicitors:

Hickey Law (Auckland) for Applicant

Holm Majurey (Auckland) for First Respondent

13     High Court Rules, r 14.17.