Haronga v Waitangi Tribunal

[2011] NZCA 670

IN THE COURT OF APPEAL OF NEW ZEALAND

CA73/2010
[2011] NZCA 670

BETWEEN  ALAN PAREKURA TOROHINA HARONGA
Appellant

AND  WAITANGI TRIBUNAL
First Respondent

AND  THE ATTORNEY-GENERAL
Second Respondent

AND  TE WHAKARUA (FORMERLY TE POU A HAOKAI)
Third Respondent

Hearing:         On the Papers

Court:             O'Regan P, Arnold and Randerson JJ

Counsel:         B W F Brown QC and K S Feint for Appellant
No appearance for First Respondent
V L Hardy and C Linkhorn for Second Respondent
T Bennion and F Khan for Third Respondent
M Doogan for Federation of Maori Authorities Inc as Intervener

Judgment:      20 December 2011 at 11.30 am

COSTS JUDGMENT OF THE COURT

AThe second respondent must pay to the appellant costs for a complex appeal on a band A basis and usual disbursements.  We certify for second counsel.

BNo award of costs is made in favour of or against the other respondents or the intervener.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

1. In a judgment delivered on 19 May 2010, this Court dismissed the appellant’s appeal.[1]  We made no award of costs.

   [1]      Haronga v Waitangi Tribunal [2010] NZCA 201.

2. In a judgment delivered on 19 May 2011, the Supreme Court allowed the appellant’s appeal to that Court.[2]  It ordered the second respondent to pay to the appellant costs of $25,000 plus disbursements.  It ordered that costs in this Court and the High Court be fixed by the relevant Court.

   [2]      Haronga v Waitangi Tribunal [2011] NZSC 53.

3. We have received submissions from Mr R B W Drummond, solicitor for the appellant and from counsel for the second respondent about costs in this Court.  Neither sought a hearing.

4. References to rules in this judgment are to rules contained in the Court of Appeal (Civil) Rules 2005.

5. The appellant and second respondent agree that:

   (a)this Court must award costs on the basis that it would have if the appellant’s appeal in this Court had been allowed;

   (b)the appropriate band for the purposes of r 53D(2) is band A;

   (c)it was appropriate for two counsel to appear for the appellant; and

   (d)usual disbursements (as defined in r 53H) are $4,672.60.

6. The parties do not agree whether the appeal should be categorised as “complex” or “standard” in terms of r 53B.  To put that dispute in context, the costs award if the appeal is categorised as complex will be $16,590.  If it is categorised as standard, costs will be $11,200.  So the amount at stake is $5,390.  We confess to some surprise that in those circumstances it was necessary for this Court to make a ruling.

7. Rule 53B defines complex appeals as “appeals that because of their complexity or significance require senior counsel”.  It is notable that either complexity or significance suffices.

8. Rule 53B needs to read in conjunction with r 53A(e), which says:

   (e)what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the actual solicitor or counsel involved …

9. So the fact that the appellant was represented by a Queen’s Counsel does not, of itself, indicate that the appeal was a complex appeal.

10. Mr Drummond argued that the issue before this Court was significant, which he says is shown by the fact that the Supreme Court gave leave to appeal against this Court’s decision.  He also placed significance on the fact that the party against whom costs are sought is the Crown which, he says, “might reasonably be expected to contribute to the appellant’s costs in resolving the important matters of public interest determined on appeal”.  He also argued that the award of costs in this Court should be commensurate with the level of the costs award in the Supreme Court.

11. For the Crown, Mr Linkhorn accepted that the appeal was significant for affected Waitangi Tribunal claimants.  But he queried whether senior counsel was required because of that significance, which is what r 53B requires.

12. We do not consider that this appeal could fairly be called “complex” in the context of r 53B(1)(b).  So the question for determination is whether it was of sufficient “significance” to require senior counsel.

13. We are satisfied that it was.  The issues involved are likely to affect a number of claims and claimants before the Waitangi Tribunal.  We agree with Mr Linkhorn that the subsequent decision of the Supreme Court to give leave to appeal is not an indicator that the appeal in this Court was significant, because we consider the matter as we would have had the appeal in this Court succeeded.  We also accept that the identity of the party against whom the award is to be made should not be determinative of the issue now before us.  But, standing back and looking at the matter in the round, we consider that, if we had been called upon to decide this issue at the time the matter was before us, we would have said the appeal raised an issue about the Treaty settlement process that is important for not just this claim but a number of others that involve memorialised land.

14. We conclude therefore that the significance of the appeal was such that it required senior counsel and that the appeal should be therefore be categorised as a complex appeal for costs purposes.  We award costs on that basis.

Solicitors:
Gibson Sheat, Wellington for Appellant
Crown Law Office, Wellington for Second Respondent
Bennion Law, Wellington for Third Respondent

Nowland Gordon & Associates for Intervener