K�kako Lodge Trust v Auckland Regional Public Health Service
[2022] NZHC 3515
•19 December 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-001531
[2022] NZHC 3515
UNDER The Judicial Review Procedure Act 2016 BETWEEN
KŌKAKO LODGE TRUST
Applicant
AND
AUCKLAND REGIONAL PUBLIC HEALTH SERVICE
First Respondent
AND
AUCKLAND COUNCIL
Second Respondent
Hearing: (On the papers) Counsel:
Ryan Marsich for the Applicant
Chris Browne and Alex Young for the First Respondent
Lizzy Wiessing and Mike Lichtwark for the Second RespondentJudgment:
19 December 2022
JUDGMENT OF MOORE J
[Costs]
This judgment was delivered by me on 19 December 2022 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
KŌKAKO LODGE TRUST v AUCKLAND REGIONAL PUBLIC HEALTH SERVICE & ANOR [2022] NZHC
3515 [19 December 2022]
Background
[1] Kōkako Lodge Trust (“the Lodge”) operates a facility near the Hunua Ranges, southeast of Auckland City.
[2] On 24 August 2022, the Auckland Regional Public Health Service (“the ARPHS”) granted the Auckland Council (“the Council”) permission to conduct an aerial drop of sodium fluoroacetate (“1080”) in an area proximate to the Lodge (“the Permission”). A condition of the Permission required the Lodge to cease operating when the drop occurred and resume only when the tracks in the area had been cleared of any uneaten baits and/or the carcasses of predators killed by the poisonous baits (“the Condition”).
[3] The Lodge had a number of children from backgrounds of socio-economic disadvantage scheduled to attend the Lodge over the period when it would be required to cease operating. If the drop were to proceed as scheduled, these children would be unable to attend.
[4] The Lodge applied for judicial review of the Council’s decision to proceed with the drop on the conditions imposed by the Permission. It then applied for an urgent interim order restraining the Council from proceeding with the drop and triggering the condition.
[5] I declined the Lodge’s application for interim relief.1 While the Lodge had a position to preserve,2 the apparent weakness of the claim and significant operational and financial consequences to the Council operated against an exercise of the discretion to grant interim relief.3
[6] The Council and ARPHS now seek costs on a 2B basis. Their position is broadly that they were the successful parties and costs should follow the event.
1 Kōkako Lodge Trust v Auckland Regional Public Health Service [2022] NZHC 2280.
2 At [12]–[18].
3 At [53].
[7] The Lodge’s position is that costs should be reserved until the determination of the substantive claim. If costs are ordered, a reduction is sought.
Should costs be reserved?
[8]The Lodge’s first argument is that costs should be reserved.
[9] Mr Marsich, for the Lodge, submitted that costs should be reserved because the Lodge strongly disputes that the finding that its substantive claim for judicial review appears unsustainable. Further evidence is cited from the manager of the Lodge, which is said to have a material bearing on the Lodge’s claim.
[10] While costs are at the discretion of the Court,4 a party who fails with respect to a proceeding or interlocutory application should pay costs to the party who succeeds.5 Costs on an opposed interlocutory application should be fixed when the application is determined, unless there are special reasons to the contrary.6 The rationale for this approach is that the merits of an interlocutory application are typically divorced from the merits of the substantive proceeding.7
[11] Although an application for interim relief includes an analysis of the apparent strength of the substantive claim, it is nevertheless a separate determination which can turn on other possibly decisive considerations. In this case the public and private repercussions of granting relief weighed in favour of declining the application. It follows that the Lodge’s contention that further evidence will support its substantive claim is not in itself a special reason to reserve costs. If it transpires that the original order should not have been made, the Court may reverse, discharge, or vary the order for costs.8
[12]I therefore consider that costs should not be reserved.
4 High Court Rules 2016, r 14.1.
5 Rule 14.2(1)(a).
6 Rule 14.8(1).
7 Chapman v Badon Ltd [2010] NZCA 613 at [12].
8 High Court Rules 2016, r 14.8(2).
What is the appropriate quantum of scale costs?
[13] The next question is the appropriate quantum of scale costs. The two aspects to this issue are:
(a)the steps for which scale costs should be awarded; and
(b)whether costs should be reduced.
For which steps should scale costs be awarded?
[14] The ARPHS and the Council have each filed a written memorandum which sets out the costs claimed in table format with reference to the relevant steps taken. The Lodge does not appear to take issue with the steps claimed. However, two aspects of the Council’s claim require closer inspection. These are the claims for:
(a)costs on a band C basis for preparing the notice of opposition and accompanying affidavit; and
(b)an allowance for second counsel.
(a)Notice of opposition and accompanying affidavit
[15] The first is the claim for costs on a band C basis for preparing the notice of opposition and accompanying affidavit.
[16] In cases where affidavit evidence is complex and comprehensive, a claim under time band C for the preparation of a notice of opposition would be justified.9
[17] Ms Weissing, for the Council, submitted that the affidavit filed was comprehensive, being 18 pages plus exhibits. She submitted that this was a necessary and appropriate response given the circumstances of the proceeding.
[18] I agree that the Council was justified in filing a reasonably lengthy affidavit. While that affidavit had to be prepared under urgency, I am not satisfied it was
9 Tandem Group Ltd v ASB Bank Ltd [2021] NZHC 1135 at [16].
sufficiently complex and comprehensive to warrant a time band C allocation. Nor is the Council’s evidence likely to be wasted.10 It is directed at issues which will be the subject of the substantive hearing.11
[19]I therefore consider a band B allowance appropriate.
(b)Allowance for second counsel
[20]The Council also claims an allowance for second counsel.
[21] Ms Wiessing submitted that preparing for an urgent hearing within two days required the division of labour between counsel. She submitted that it was appropriate for second counsel to appear at the hearing as this meant both the primary drafter of the legal submissions and counsel primarily involved in preparing the affidavit were available.
[22] The default position is that provision is made for one counsel in a proceeding.12 Generally, a category 2 case must have some exceptional feature to justify a second counsel allowance.13 This includes the urgency and significance of a proceeding, which may justify an allowance for second counsel even where that proceeding was not lengthy or complex.14
[23] It is self-evident that this proceeding was urgent. The Council were required to prepare for the hearing within two working days. This included the production of a reasonably comprehensive affidavit, which is to a degree reflected in this aspect of the claim for costs. The proceeding was also of general significance. Taking those factors into account, it was reasonable for second counsel to appear.
[24]An allowance for second counsel is justified.
10 At [22].
11 At [22].
12 Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2017] NZHC 1599 at [44].
13 At [44].
14 New Conservative v Television New Zealand Ltd [2020] NZHC 3096 at [12].
Should costs be reduced?
[25]The next issue is whether costs should be reduced.
[26] A costs award may be reduced if the proceeding concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding.15
[27] The thrust of Mr Marsich’s argument was that the Lodge is a charitable organisation who applied for interim relief in the interests of the rangatahi who would be adversely affected by the closure of the Lodge. He further argued that the closure of the Lodge has caused the Lodge significant financial losses.
[28] Although these two arguments are not mutually exclusive, they sit somewhat uneasily with one another. I accept that the Lodge’s purpose and work benefits the community, particularly the disadvantaged. But as Mr Browne, for ARPHS, points out, the Lodge’s reliance on the financial implications of the decision indicates that the proceeding was not brought solely in the interests of the children affected.
[29] Nor is it unequivocal that the interests of those children constitute a wider public interest. This is not a case in which one party can be said to represent a singular public interest.16 I found that the repercussions to the public pointed against a grant of interim relief. There was wider public interest in the 1080 drop proceeding as scheduled. It is also relevant in this context that any reduction in costs would be borne by ratepayers.17
[30]It follows, in my view, that there is no basis to reduce costs.
15 High Court Rules 2016, r 14.7(e).
16 See Norman v Tūpuna Maunga O Tāmaki Makaurau Authority [2021] NZHC 944 at [22] for Gwyn J’s comments to similar effect.
17 See for example Evans v Clutha District Council [2019] NZHC 549 at [9].
Conclusion on the quantum of costs
[31] I therefore consider that ARPHS and the Council’s claims for costs should be granted as formulated, save for allowing only band B for the Council’s preparation of its notice of opposition.
Result
[32]I order that the Lodge pay to:
(a)the ARPHS costs and disbursements totalling $7,160.50; and
(b)the Council costs and disbursements totalling $6,503.25.
Moore J
Barristers/Solicitors: Mr Marsich, Auckland Wilson Harle, Auckland Ms Wiessing, Auckland
Auckland Council, Auckland
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