Horticulture New Zealand v Manawatu-Wanganui Regional Council

[2013] NZHC 2853

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2004

CIV 2012-454-654
CIV 2013-485-165

CIV 2013-454-50

CIV 2013-454-253

CIV 2013-454-368 [2013] NZHC 2853

UNDER  the Resource Management Act 1991

BETWEEN  HORTICULTURE NEW ZEALAND FEDERATED FARMERS OF NEW

ZEALAND INC Appellants

ANDMANAWATU-WANGANUI REGIONAL COUNCIL

Respondent

ANDWELLINGTON FISH & GAME COUNCIL

ANDREW DAY Interested Parties

In Chambers:           On the papers

Judgment:                30 October 2013

JUDGMENT OF THE HON JUSTICE KÓS (Costs)

[1]      I see no reason in this case why costs should not follow the event.    The

“event” was that the first appellant did not succeed in the appeal at all, and the

second appellant succeeded only in one very minor respect.

HORTICULTURE NEW ZEALAND & ANOR v MANAWATU-WANGANUI REGIONAL COUNCIL & ORS [2013] NZHC 2853 [30 October 2013]

[2]      In saying this I express no criticism of the appellants, and the appeals they brought.  They exercised their constitutional rights to appeal perfectly responsibly. They complied with directions made by the Court.  If the appeals were unsuccessful de jure, de facto they may have achieved some gains as a result of the position taken formally by the respondent  Council  prior  to,  and during,  the hearing.    But  the concomitant of failure de jure is liability to pay costs.

[3]      The respondent Council does not seek costs.

[4]      The Wellington Fish & Game Council, a s 301 party under the Resource Management Act 1991, seeks costs. As a matter of jurisdiction, the appellants accept that the Court has jurisdiction to grant costs in favour of a s 301 party.  That is a proper concession.   The Wellington Fish & Game Council was a party before the Environment Court.  It was entitled as of right to participate in the present appeal, under s 301.  Its position is, therefore, to be contrasted with that of a mere intervener in an appeal, where permission to intervene may be conditional on non-entitlement

to costs.1

[5]      Liability for costs to s 301 parties is therefore a risk inherent in mounting an appeal of this kind, just as it would be if those parties were, formally, respondents to the appeal.  The High Court, however, retains a discretion to ensure that the level of costs payable does not get out of hand.  Costs awards seek to ensure that parties with common interests cooperate, that arguments are not needlessly duplicated and that costs are not unnecessarily compiled.

[6]      Both appellants stressed that this proceeding involved matters in the public interest.  It was submitted on that basis that could justify refusing to award costs, or a reduced sum only: Coro Main Street (Incorporated) v Thames-Coromandel District Council.2     In that case a community organisation, unsuccessful in judicial review proceedings  against  the  Council,  received  a  10  per  cent  discount  from  costs

otherwise payable, recognising the public interest nature of the proceedings and the

1      In the Supreme Court that is generally the position; in other jurisdictions costs may be awarded to interveners: see e.g. Hall v Wellington Standards Committee (No 2) [2013] NZHC 1867 and Perpetual Trust Limited v Financial Markets Authority [2012] NZCA 298. See also s 99A of the Judicature Act 1908.

2      Coro Main Street (Incorporated) v Thames-Coromandel District Council [2013] NZHC 1527.

responsible manner in which they had been run.   Federated Farmers in this case relies on that authority.   It submits that it did not instigate the proceedings for personal gain, but with a genuine and legitimate public law interest in mind.

[7]      I  do  not  think  the  public  interest  point  can  be  taken  to  the  extent  the appellants suggest.   Nor do I consider a discount from costs otherwise payable is appropriate here on that ground.   My reasons are two.   First, both appellants are substantial primary production sector group representatives.  There is no risk here of costs having a chilling effect on the appropriate testing of Council and Environment Court  decisions  on  a regional  plan  and  regional  policy statement.    Secondly,  a significant consequence of the decision of the Environment Court was increased compliance costs for the appellants’ members.   The appeals were motivated, to a significant degree, by the objective of reducing those member compliance costs. Both appellants’ members had, therefore, a pecuniary interest in the outcome.

[8]      I am not prepared to reduce costs on the basis there has been any significant duplication or unnecessary compilation of costs by the Wellington Fish & Game Council.   Its submissions were helpful and focused.   In a number of respects the respondent Council deferred to the Wellington Fish & Game Council to deal with particular issues raised by the appellants.  The submissions made by Mr Somerville QC were of considerable assistance.

[9]      The appropriate basis for costs here is category 2.   That is the  assigned categorisation the parties went into the appeal hearing on.  The Wellington Fish & Game Council could have had no basis to assume it would be entitled to any greater categorisation.  The principle of predictability of costs demands adherence to initial categorisation, except in exceptional circumstances.  These circumstances were not exceptional.

[10]     On  the  other  hand,  while  expressing  no  criticism  of  the  appellants,  the arguments in this case had more than the normal degree of complexity.  Particularly the arguments advanced by the second appellant, Federated Farmers, which had a somewhat transient character as they came to be shifted, restructured and in some instances abandoned altogether.  In my view two things follow:

(a)      It is appropriate to award the Wellington Fish & Game Council band C  costs  for  steps  relating  to  preparation  of  submissions  and  the hearing itself (and band B for steps prior thereto).

(b)Although Federated Farmers had modest success on a minor aspect of the case, it should meet costs to the Wellington Fish & Game Council

on the basis of equality with Horticulture New Zealand.

Result

[11]     Costs to Wellington Fish & Game Council on a category 2 band C basis for preparation of submissions and the hearing of the appeal; category 2 band B in respect of other steps. Allowance for two counsel.  Reasonable disbursements, either as agreed or fixed by the Registrar.

[12]     Costs and disbursements are to be met equally as between the appellants.

Stephen Kós J

Solicitors:

Atkins Holm Majurey, Auckland for Horticulture New Zealand Ltd

Mr R Gardner, Federated Farmers of New Zealand, Auckland

Cooper Rapley, Palmerston North for Manawatu-Wanganui Regional Council

Burns Fraser, Auckland for Wellington Fish & Game Council

And to:  Mr Andrew Day