Jericho and Ruebe Residents Society Incorporated v Waikato District Council

[2024] NZHC 504

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-000279

[2024] NZHC 504

BETWEEN

JERICHO AND RUEBE RESIDENTS SOCIETY INCORPORATED
Applicant

AND

WAIKATO DISTRICT COUNCIL

First Respondent

OCEANIA HELICOPTERS PUKEKOHE LIMITED

Second Respondent

Hearing:

7 March 2023

Appearances:

J W Maassen for Applicant

No appearance for First Respondent S Ryan for Second Respondent

Judgment:

12 March 2024

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 12 March 2024 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules 2016.

.………………………….. Registrar/Deputy Registrar

Solicitors:

Blackwood Montagna Legal, Pukekohe Powell and Hodson Lawyers, Auckland

JERICHO AND RUEBE RESIDENTS SOCIETY INCORPORATED v WAIKATO DISTRICT COUNCIL [2024] NZHC 504 [12 March 2024]

The application

[1]                 Oceania Helicopters Pukekohe Limited is a commercial helicopter operator. The Waikato District Council granted resource consent to Oceania on a non-notified basis, allowing it to construct and operate a helicopter landing area in Franklin.

[2]                 The applicant in this proceeding is Jericho and Ruebe Residents Association Incorporated. This is an incorporated society that was formed to oppose the anticipated resource consent application and to “protect the environment of the Jericho and Ruebe Road, Franklin rural area”. It is now seeking judicial review of the Council’s decision to grant the resource consent on a non-notified basis. Several of the Society’s 15 members are local landowners/occupiers. Others appear to be relatives.

[3]                 The Council and Oceania are both named as respondents to the application. Oceania applies for security for costs, which is opposed by the Society.

[4]                 There is no issue that the threshold under r 5.45(1) of the High Court Rules 2016 is met. The Society acknowledges that it would not be able to meet an award of costs. The question is whether the Court should exercise its discretion provided under r 5.45(2) of the Rules to order security and, if so, in what amount.

The Society’s claim for judicial review

[5]                 The Society challenges the process followed by the Council. After lodging its consent application, Oceania’s planner engaged with the Council’s planner as to what intensity of helicopter use would enable the Council to allow the application to proceed on a non-notified basis. Oceania amended its application accordingly. The Society says this was to circumvent its opposition to the application. The Society says that the Council’s role1 is to consider and determine the application as it was lodged, whereas the Council engaged in a form of negotiation.

[6]  There are a number of other grounds advanced in the application for review. Without stating these exhaustively, they include:

1      The Society refers to the Resource Management Act 1991, Part 6.

(a)that the Council erred by misclassifying the activity as “rural industry” under the Proposed Waikato District Plan, rather than as an “aerodrome”;

(b)that the Council conflated the assessments of the notification and resource consent applications, despite these requiring distinct planning assessments, thereby making the decisions fundamentally flawed;

(c)issues with the traffic and acoustic assessments.

The Society’s position on security for costs

[7]                 The Society says there should be no order of security for costs. Mr Maassen submits that the Society has a strong case. The written submissions set out a detailed synopsis of the arguments in support of the Society’s claims. This was accompanied by affidavit material.

[8]                 In opposing Oceania’s application for security, the Society emphasises that Oceania was not the decision-maker and suggests that, as such, its role in proceedings should only be to highlight matters in submissions not adequately addressed by the Council. Further, Mr Maassen stresses that judicial review should be a swift and accessible procedure. He submits that Oceania’s involvement in the review should be limited, as it did not make the decisions at issue. He consequently suggests that it would be the Council that would be entitled to a full costs award if the plaintiff is unsuccessful, rather than Oceania, and any costs incurred by Oceania should not be substantial.

[9]                 In addition, Mr Maassen points me to cases where the Court has declined to make an award of security for costs against a public interest group reasonably pursuing an issue of genuine public interest.2 In some cases, a costs award may not be appropriate even if the applicant is unsuccessful. 3

2      Ratepayers’ and Residents’ Action Association Inc v Auckland City Council [1986] 1 NZLR 746 at 754.

3      High Court Rules, r 14.7(e); Movement v Waka Kotahi [2023] NZHC 809 at [44].

Should an order be made?

[10]In my view, an order for security for costs is appropriate.

[11]              First, I accept Oceania’s submission that the Society is a nominal plaintiff, in the sense that it was formed for the purposes of objection to the consent. Oceania draws the Court’s attention to correspondence from one of the founders of the Society which stated:

The basis for establishing an incorporated society is that – if you are a member of a public group that is an incorporated society, you cannot be made personally liable for costs.

[12]              This statement was not contested by the Society. A factor tending in favour of security for costs is where the plaintiff is nominal and representing interests of others so that they are shielded from a costs award.4

[13]              Second, Mr Maassen frankly acknowledged that this is not a case where an order  for  security for  costs  will affect the Society’s ability to pursue  its claim.   Mr Maassen said that difficulties should not be placed in the Society’s way. However, as Oceania submitted, there is no reason or evidence provided as to what difficulty arises from providing security for costs. This is a case where the plaintiff can draw upon resources from its members. The only potential difficulty for the Society is in collecting funds from its members, which it is presumably doing to fund the litigation in any event.

[14]              Third, it is correct that if litigation is brought in the public interest, this is a factor the Court will take into consideration in exercising its discretion to order security. But here, the Society is a vehicle for concerned adjacent landowners to oppose and/or challenge the consent. While there is some public interest in it doing so, the Society is not in the nature of a “public watchdog”. As local landowners the Society members have a private interest.5

4      Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [22].

5      Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2018] NZHC 926 at [17];

Waipapa Bay Protection Society v Ariki Tahi Sugarloaf Wharf Ltd [2024] NZHC 192 at [11].

[15]              Fourth, the Society’s proposition that Oceania plays a limited or secondary role, and hence will not be entitled to full costs, rests on a false premise. In Fraser v Central Hawkes Bay District Council, Palmer J considered that the Council ought to have sought and obtained the leave of the Court to file submissions in a resource management review on issues where there was another contradictor.6 Whether the Council and Oceania would both be entitled to full costs and, if so, in what ratio, is something that the Court would need to consider at the end of the proceeding.7 In any event, this argument goes more to quantum than whether a sum should be ordered.

[16]              Finally, the Society’s written submissions invite me to engage fulsomely on the merits of its judicial review grounds. I decline to carry out any detailed review. This is not a case where the Court needs to guard against an order for security for costs, lest it thwart an otherwise meritorious claim. Indeed, the Society candidly assures me that there is no prospect of its claim being thwarted, even if I order security in the sum sought. Conversely, this is not a case where lack of merit in the claim supports a higher level of security. The claim has sufficient merit that my assessment of quantum does not turn on that consideration. There are also arguable issues raised by the Oceania in its short response. However, beyond these impressionistic comments, I say no more.

[17]              Ultimately, whether to order security and in what amount is a balancing exercise between the competing interests of the applicant’s right to access the Court and the respondent’s right to be protected from a barren costs award. In my view, the balance is in favour of making an award of security for costs in the present case.

Quantum

[18]              Oceania calculates that an ordinary costs award on a 2B basis would be approximately $37,000. This includes an estimated sum of $10,000 excluding GST for expert evidence.  Based on these calculations, Oceania proposes that a sum of

$30,000 is an appropriate level of security for costs. Mr Maassen challenges the need for expert costs, certainly at that level, given that Oceania’s reports have already been

6      Fraser v Central Hawkes Bay District Council [2021] NZHC 2981.

7      High Court Rules, r 14.15. See examples: Kaikoura and Hurunui Landowners Association Inc v Minister of Fisheries [2022] NZHC 3425; Opua Coastal Preservation Inc v Far North District Council [2020] NZHC 1499; Waipapa Bay Protection Society v Ariki Tahi Sugarloaf Wharf Ltd, above n 5.

submitted  to  the  Council.     Oceania responds that the proposed $30,000 sought effectively excluded the expert costs.

[19]              It is trite that security for costs is not necessarily to be fixed by reference to a likely costs award.8 The claim was filed in November 2023. I understand that this application is the only outstanding interlocutory delaying obtaining a hearing date. A timetable leading to a hearing has already been set. As referred to earlier, the fact that there are two active respondents may bear on whether Oceania receives a full costs award if the Society is unsuccessful. Against that, the Society has not contradicted that it is set up to avoid personal liability for costs. That translates to a virtual certainty that any shortfall between a costs award and security for costs will not be recovered.

[20]              In all the circumstances, I direct security for costs in the sum of $20,000. This is to be paid into Oceania’s solicitors’ trust account or otherwise to the satisfaction of the Court within 28 days of the date of this judgment. I decline to order a stay of the proceeding pending payment of security.

[21]              Oceania is the successful party on this application and is entitled to costs on a 2B basis, as fixed by the Registrar.

Anderson J

8      A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747.