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)

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Haronga v Waitangi Tribunal

Details

AGLC: Haronga v Waitangi Tribunal [2011] NZCA 670
Case: [2011] NZCA 670
Decision Date: 20 December 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand addressed the case of Alan Parekura Torohina Haronga against the Waitangi Tribunal, the Attorney-General, and Te Whakarua, focusing on the issue of costs related to an appeal. The appellant, Haronga, had previously appealed against a decision made by the Waitangi Tribunal, which was dismissed by the Court of Appeal on May 19, 2010. However, the Supreme Court allowed Haronga's appeal on May 19, 2011, ordering the Attorney-General to pay Haronga $25,000 in costs, plus disbursements, and directed that costs in this Court and the High Court be fixed by the relevant Court. The matter before the Court of Appeal was to determine the costs Haronga was entitled to in the appeal process.

The central legal issue was whether the appeal should be categorized as "complex" or "standard" for the purpose of determining the costs to be awarded. Under the Court of Appeal (Civil) Rules 2005, a "complex" appeal is one that, due to its complexity or significance, requires senior counsel. The parties agreed that if the appeal was categorized as complex, the costs would amount to $16,590; if categorized as standard, the costs would be $11,200. The Court had to determine whether the appeal's significance warranted the involvement of senior counsel.

The Court found that the appeal was not "complex" in terms of requiring senior counsel due to its complexity, but it did consider the appeal significant due to its implications for the Treaty settlement process and the number of claims and claimants before the Waitangi Tribunal. The Court concluded that the significance of the appeal, which was recognized by the Supreme Court in granting leave to appeal, warranted the involvement of senior counsel. Therefore, the appeal was categorized as complex for the purpose of awarding costs, resulting in an award of $16,590 plus usual disbursements to Haronga. The Court also noted that the identity of the Crown as the party against whom costs were sought did not determine the significance of the appeal.

In conclusion, the Court of Appeal ruled that the appeal should be categorized as complex and awarded costs accordingly, along with usual disbursements, to Haronga. The Attorney-General was ordered to pay the costs, while no award of costs was made in favor of or against the other respondents or the intervener.

Orders