Hunter v Auckland Council
[2020] NZHC 2533
•28 September 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-000097
[2020] NZHC 2533
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for review of a decision under the Resource Management Act 1991, granting of resource consent
BETWEEN
KEITH MERVYN GEORGE HUNTER
Applicant
AND
AUCKLAND COUNCIL
First Respondent
PHILIP BURLEY
Second Respondent
ACL TRUSTEES LIMITED
Third Respondent
Hearing: On the papers Counsel:
Applicant in person
A Cumming for the First Respondent
S Stienstra for the Second and Third RespondentsJudgment:
28 September 2020
JUDGMENT OF WOOLFORD J
[As to costs]
This judgment was delivered by me on Monday, 28 September 2020 at 12:30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
HUNTER v AUCKLAND COUNCIL [2020] NZHC 2533 [28 September 2020]
[1] On 16 July 2020, I dismissed Mr Hunter’s application for judicial review of a decision made by a panel of Independent Hearing Commissioners granting resource consent to the redevelopment of his neighbour’s house.1 Costs were unable to be agreed. I have now received memoranda from the applicant, Mr Hunter, the first respondent, Auckland Council, and the second and third respondents, Mr Burley and ACL Trustees Ltd, being the neighbour and his company which owns the neighbouring property.
Auckland Council
[2]Auckland Council claims a total of $26,002 as follows:
Costs on a 2B basis (per day)
$2,390.00
2
Commencement of defence by defendant (2 days)
$4,780.00
10
Preparation for first case management conference (0.4 days)
$956.00
11
Filing memorandum for first case management conference (0.4 days)
$956.00
13
Appearance at first case management conference (0.3 days)
$717.00
30
Preparation of affidavits, authorities and agreeing common bundle (2 days)
$4,780.00
32
Preparation for hearing (2 days)
$4,780.00
34
Appearance at hearing for sole or principal counsel (0.5 days)
$1,195.00
Total costs (7.6 days)
$18,164.00
[3]In addition, Auckland Council seeks the following disbursements:
(a)Filing fee — statement of defence $110.00
(b)Expert witness fees and expenses (Karyn Kurzeja) $7,728.00
[4]The total costs and disbursements sought therefore amounts to $26,002.00.
[5] Mr Hunter queries two items listed in the table — the preparation of affidavits, authorities and agreeing common bundle (Item 30) and preparation for the hearing
1 Hunter v Auckland Council [2020] NZHC 1720.
(Item 32). He submits that the claim should be reduced to one day each, rather than two. That is because the time allocations for these two items provide for two half days for the first hearing day. The hearing for this matter was only half a day. Mr Hunter therefore submits that the time for preparation should be halved.
[6] In addition, Mr Hunter does not agree that Auckland Council should be entitled to claim the fees and expenses for Ms Kurzeja as an expert. Ms Kurzeja was the Chair of the panel of Independent Hearing Commissioners. She gave factual evidence, not expert evidence. Her affidavit does not refer to the code of conduct for expert witnesses. Mr Hunter submits that, on that basis, Auckland Council ought not to be able to claim her fees and expenses as an expert.
[7] With respect, I am of the view that the time for preparation of affidavits, list of issues or authorities and agreeing common bundle and preparation for the hearing itself should not be halved. Auckland Council has provided a copy of an invoice from Ms Kurzeja, which indicates that she spent four days reviewing the file and preparing her affidavit. The narration to her invoice reads as follows:
High Court work including review of file, meetings and discussions with Council’s legal team, review documentation, preparation of draft affidavit, review with legal and finalise affidavit for Court.
[8] Ms Kurzeja obviously had considerable assistance from the Council legal team in identifying the issues, drafting and reviewing her affidavit. There is also a list of authorities prepared by the Council. It also agreed the common bundle prepared by the second and third respondents. Then in preparation for the hearing itself, the Council provided a 23 page synopsis of submissions. Ms Kurzeja’s invoice demonstrates that the standard claim for two days’ preparation of affidavits, authorities and agreeing common bundle and two days’ preparation for hearing is amply justified.
[9] I do, however, agree with Mr Hunter that the Council should not be entitled to claim the fees of Ms Kurzeja as an expert. She was Chair of the panel of Independent Hearing Commissioners and gave factual evidence. She describes her affidavit as addressing the following matters:
(a)The process post-adjournment of the hearing and following receipt of the closing submissions;
(b)The expert evidence presented to the panel for the hearing;
(c)The site visit to view Ms Taha’s flat and assessment of the associated shading and visual dominance effects and the impact on the amenity values at 8 Ardmore Road;
(d)The panel’s assessment of the overall shading effects of the proposal;
(e)The panel’s unbiased and open-minded process;
(f)The reporting on heritage values and the decision; and
(g)The panel’s awareness of the Budden decision and confirmation that all reasons for resource consent were correctly determined.
[10] Ms Kurzeja was, in effect, one of the decision makers and, although not directly employed by the Council, was acting under delegated authority. I view her costs as being an internal expense for Auckland Council rather than as a disbursement claimable under r 14.12 of the High Court Rules 2016.
[11] Finally, Mr Hunter notes that Auckland Council has not provided an assurance that their actual costs are more than the amount claimed,2 as he understands is required by the Supreme Court in McGuire v Secretary for Justice.3 What the Supreme Court did say was that the costs incurred by the party claiming costs does not mean costs “actually incurred”. In effect, it rejected an “invoice required” approach. In the present case, I am satisfied that, looked at in the round, Auckland Council’s actual costs did exceed the amount claimed.
2 High Court Rules 2016, r 14.2(1)(6).
3 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.
[12]The costs properly payable by Mr Hunter to Auckland Council therefore total
$18,274.00, being the $26,002.00 claimed less the invoice from Ms Kurzeja in the sum of $7,728.00.
Mr Burley and ACL Trustees Ltd
[13]Mr Burley and ACL Trustees Ltd claim a total of $99,794.79 as follows:
Costs on a 2B basis (per day)
$2,390.00
2
Commencement of defence (judicial review) by second and third respondents (2 days)
$4,780.00
2
Commencement of defence (application for interim orders) by second and third respondents (2 days)
$4,780.00
10
Preparation for first case management conference (0.4 days)
$956.00
11
Filing memorandum for first case management conference (0.4 days)
$956.00
12
& 13
Appearance by telephone conference on two occasions before Palmer J and Woolford J (0.5 days)
$1,195.00
22
Commencement of proceeding (strike out application) by second and third respondents (0.6 days)
$1,434.00
23
Filing opposition and affidavit to interim orders (0.6 days)
$1,434.00
24
Preparation of written submissions for
interlocutory applications (strike out application and interim orders) (1.5 days)
$3,585.00
26
Appearance at hearing of defended application (strike out application and interim orders) (0.5 days)
$1,195.00
30
Preparation of affidavits, authorities, common bundle (2 days)
$4,780.00
31
Allowance for second and third respondents’ preparation of common bundle of pleadings and authorities (0.5 days)
$1,195.00
32
Preparation for hearing (judicial review) (2 days)
$4,780.00
33A
Additional allowance for second and third respondents’ preparation of common bundle of pleadings and authorities (0.5 days)
$1,195.00
34
Appearance at hearing (judicial review) (0.5 days)
$1,195.00
38
Affidavits in opposition to judicial review application (2 days)
$4,780.00
40
Preparation of written submissions (1.5 days)
$3,585.00
Total costs (17.5 days)
$41,825.00
[14] In addition, Mr Burley and ACL Trustees Ltd seek the following disbursements:
(a) Solicitor’s fee $2,200.00 (b) Counsel’s fee — Ms Stienstra $41,169.50 (c) Planner’s costs — Ms A Findlay $7,599.39 (d) Costs — Local Government Official Information and Meetings Act information request $150.00 (e) Rates — on land $5,298.90 (f) Filing fee — statement of defence $110.00 (g) Filing fee — application to strike out $500.00 (h) Copy and printing of casebooks and common bundle $942.00
[15]The total costs and disbursements sought therefore amounts to $99,794.79.
[16] Mr Hunter takes issue with a number of the costs claimed by Mr Burley and ACL Trustees Ltd. As a starting point, they have claimed full indemnity solicitor and counsel costs as disbursements and on top of that have also claimed scale costs. Mr Hunter submits this is not appropriate.
[17] Nor does Mr Hunter accept that Mr Burley and ACL Trustees Ltd are able to claim the fees and expenses of Ms Findlay. Ms Findlay, again, did not refer to the code of conduct for expert witnesses, but instead gave evidence of the steps taken in the resource consent process. In any event, Mr Hunter submits that it does not appear that her evidence was relevant to the issues as there is no reference to her evidence in the judgment.
[18] Furthermore, Mr Hunter queries the basis for Mr Burley and ACL Trustees Ltd to claim costs for information requests to Council or land rates as disbursements in this proceeding.
[19] Mr Hunter also submits that the scale costs claimed include items that do not apply to this proceeding (Items 33A, 38 and 40). He notes that Mr Burley and ACL Trustees Ltd also claim costs in relation to Mr Hunter’s application for interim orders and their application to strike out the proceedings. Mr Hunter submits both of these applications were effectively withdrawn when the Court allocated a hearing date for his substantive application. As neither of the interlocutory applications were heard, Mr Hunter submits that there should be no costs awarded in relation to either application.
[20] Finally, Mr Hunter submits that Items 30 and 32, which relate to preparation of affidavits and preparation for the hearing, should be reduced to one day each rather than the two days claimed for each as the hearing took one half day, rather than a full day.
[21] I am of the view that the costs of Mr Hunter’s application for interim orders and the application by Mr Burley and ACL Trustees Ltd to strike out his application for judicial review should lie where they fall. I agree with Mr Hunter when he says that both applications were effectively withdrawn when the Court allocated a prompt hearing date for his application for judicial review. There is no certainty as to how the Court may have determined either of the applications if they had proceeded to a hearing. I, therefore, disallow Items 2, 22, 23, 24 and 26 of the above table.
[22] In addition, I disallow Item 33A as duplicative of Item 31, and Items 38 and 40 as inapplicable. However, I am of the view that the time for preparation of affidavits, list of issues or authorities and agreeing common bundle and preparation for the hearing itself should not be halved as is submitted by Mr Hunter. There were extensive affidavits prepared by counsel for Mr Burley and ACL Trustees Ltd. In addition, counsel prepared thoroughly for the hearing itself as is reflected in counsel’s actual costs.
[23] Mr Burley and ACL Trustees Ltd also claim full indemnity costs for their solicitor and counsel totalling $46,369.50 as a disbursement in addition to scale costs. This is a double up and inappropriate. Either Mr Burley and ACL Trustees Ltd are entitled to increased/indemnity costs or scale costs, but not both. Rule 14.6 of the High Court Rules permits increased or indemnity costs. It provides:
14.6 Increased costs and indemnity costs
(1)Despite rules 14.2 to 14.5, the court may make an order—
(a)increasing costs otherwise payable under those rules (increased costs); or
(b)that the costs payable are the actual costs, disbursements, and witness expenses reasonably incurred by a party (indemnity costs).
(2)The court may make the order at any stage of a proceeding and in relation to any step in it.
(3)The court may order a party to pay increased costs if—
(a)the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i)failing to comply with these rules or with a direction of the court; or
(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or
(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or
(c)the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or
(d)some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.
(4)The court may order a party to pay indemnity costs if—
(a)the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or
(b)the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party; or
(c)costs are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the fund, and the party claiming costs has acted reasonably in the proceeding; or
(d)the person in whose favour the order of costs is made was not a party to the proceeding and has acted reasonably in relation to it; or
(e)the party claiming costs is entitled to indemnity costs under a contract or deed; or
(f)some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.
[24] Mr Burley and ACL Trustees Ltd submit that they were caught up in these proceedings without good basis, having been through a robust resource consent process for a second time as a result of Mr Hunter’s previous judicial review application. They further submit that Mr Hunter’s conduct has contributed to the costs incurred. He pleaded a case that was without merit. He increased costs by responding to Mr Burley and ACL Trustees Ltd’s strike-out application by filing an application for interim orders. He is said to have brought up fresh issues requiring responses and made allegations of bias and predetermination against the decision makers — the panel of Independent Hearing Commissioners.
[25] Mr Burley and ACL Trustees Ltd also submit that Mr Hunter failed to produce any evidence from qualified persons to support his pleadings or to demonstrate errors on the part of the panel, all to support his arguments as to the effects of the development.
[26] In particular, Mr Burley and ACL Trustees Ltd submit that Mr Hunter’s application for judicial review was a hopeless case, which he advanced with wilful disregard of known facts or clearly established law. It is said that Mr Hunter’s allegations were based on ulterior motives to attack the merits of the resource consent and to attempt to stop Mr Burley from redeveloping his property.
[27] I am of the view that increased/indemnity costs are, however, not appropriate in the present case, although I acknowledge that some of Mr Hunter’s conduct consisted of unwarranted personal criticism of counsel for Mr Burley and ACL Trustees Ltd and allegations of bias and predetermination against the panel, which were based on no more than a disagreement with the grant of resource consent.
[28] The Court is gratified to see that Mr Hunter has at last taken legal advice as his submissions on the issue of costs clearly had input from a lawyer and made a number of good points, which have been of benefit to him in consideration of the issue of costs.
[29] As for the other disbursements claimed, there is no invoice or other document supporting the claim of $7,599.39 for the costs of the planner, Ms Findlay. I note that Ms Findlay’s affidavit was, however, prepared to oppose Mr Hunter’s application for interim orders in respect of which I have determined that costs should lie where they fall. In any event, the affidavit is just over a page in length. It consists of 12 paragraphs and confirms that she appeared at the hearing for the resource consent and produces a number of documents that were tendered at the time. In that regard, I am of the view that Ms Findlay’s fees of $7,599.39 were not reasonably necessary for the conduct of the application for judicial review. I made no reference to her evidence in my decision.
[30] I similarly disallow the claim for the costs of making a Local Government Official Information and Meetings Act information request to Council, rates “on land” and the court filing fee for Mr Burley and ACL Trustee Ltd’s application to strike out the proceedings. It follows then that I allow the following disbursements:
(a)Court filing fee/statement of defence $110.00
(b)Copy and printing of casebooks and common bundle $942.00
[31] The costs properly payable by Mr Hunter to Mr Burley and ACL Trustees Ltd therefore total $20,889.00, being the scale costs of $19,837.00 together with disbursements of $1,052.00.
Result
[32] Costs are payable by Mr Hunter to Auckland Council totalling $18,274.00. He is also to pay costs to Mr Burley and ACL Trustees Ltd totalling $20,889.00.
Woolford J
Solicitors:Legal Services Group, Auckland Council (A Cumming) for the First Respondent Clark and Co Lawyers, Auckland (J Clark) for the Second and Third Respondents
Counsel: S Stienstra, Auckland, for the Second and Third Respondents Copy to: Applicant
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