Kaikoura and Hurunuil Owners Association Incorporated v (1) Minister of Fisheries & Te Runanga O NgĀI Tahu Te Runanga O Kaikoura Incorporated Society

[2022] NZHC 3425

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-000604

[2022] NZHC 3425

BETWEEN

KAIKOURA AND HURUNUI

LANDOWNERS ASSOCIATION INCORPORATED
Applicant

AND

MINISTER OF FISHERIES

First Respondent

AND

TE RUNANGA O NGĀI TAHU TE RUNANGA O KAIKOURA INCORPORATED SOCIETY

Second Respondents

Memoranda of submissions filed

Applicant – 25 November 2022

First Respondent – 15 November 2022
Second Respondents – 15 November 2022

Counsel:

P A Cowey and D L Bell for the Applicant D Watson for the First Respondent

R J B Fowler KC for the Second Respondents

Judgment:

14 December 2022

COSTS JUDGMENT OF GENDALL J

[1]    In a judgment I issued in this proceeding on 17 October 2021, I dismissed the judicial review application brought by the applicant and effectively reserved costs. As to that costs issue, at para [176] of that judgment I said:

[176] I heard no argument on costs. I see no reason why the respondents, as the successful parties, should not be entitled to an order for costs and disbursements in the usual manner. However, I urge the parties to liaise with a view to determining issues over any costs that may be sought. Failing agreement on costs, I will receive submissions (sequentially) from the parties

KAIKOURA AND HURUNUI LANDOWNERS ASSOCIATION INCORPORATED v MINISTER OF FISHERIES [2022] NZHC 3425 [14 December 2022]

(to be no more than five pages in length) and I will determine the issue of costs on the papers.

[2]    On behalf of the successful parties here, counsel for the first respondent and counsel for the second respondents respectively have filed memoranda of submissions as to costs in each case dated 15 November 2022. Counsel for the applicant has responded in his memorandum of submissions on this costs issue dated 25 November 2022.

[3]    Those memoranda have been referred to me. They make clear that the parties have been unable to fully resolve the issue of costs between themselves here.

[4]    The first respondent seeks an award of costs against the applicant on a category 2B scale basis amounting to $20,315 together with disbursements of $115.65. The second respondents, in turn, seek an order against the applicant for their costs, again calculated on a category 2B scale basis, totalling $18,881 together with disbursements of $739.66.

[5]    At the outset, I note that what is clear, from the memorandum filed on behalf of the applicant, is that it does not take issue with the quantum of costs or disbursements sought in this case by either the first respondent or the second respondent.  What is in issue, however, is the applicant’s contention that in terms of  r 14.15 High Court Rules 2016, it should only be required here to pay one amount of costs and disbursements to the respondents. This amount the applicant accepts should total $20,430.65 and be divided between the respondents as they may determine. The applicant says also that on 3 November 2022 it actively agreed to pay the respondents this one amount for costs and disbursements on this basis.

[6]    The applicant in counsel’s 25 November 2022 memorandum of submissions maintains this one award of costs and disbursements is justified here as I have noted in terms of r 14.15 of the High Court Rules 2016 which provides:

14.15 Defendants defending separately

The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—

(a)  several defendants defended a proceeding separately; and

(b)   it appears to the court that all or some of them could have joined in their defence.

[7]    On this, in Independent Māori Statutory Body v Auckland Council1 this Court held that r 14.15:

…suggests a policy which requires the Court to exercise some caution in awarding costs, without more, in favour of multiple parties, particularly when there is some overlap or community of interest in the litigation position of the parties seeking costs.

[8]    And, as McGechan on Procedure at para HR14.15.002 notes too relating to this rule:

HR14.15.02 Principles

The following principles emerge from the cases:

(a)    The court will look in a realistic way at whether parties have common or overlapping interests and, if so, to what extent. A consideration is the extent to which separate cases were run against, and separate relief sought from, each defendant, and whether the impact on the defendants of granting that relief would have been identical or different.

(b)     Whether a conflict of interest was likely in terms of the way the plaintiffs ran their case, and/or whether the defendants’ relationship was such that they were justified in remaining at arm’s length from each other.

(c)    If defendants’ reputations are at stake (for example, where they are alleged to have acted fraudulently or to have colluded in trading unfairly), the court will be more ready to accept, as reasonable, separate representations.

(d)    Whether the parties took legal advice as to the appropriateness of separate/joint representations and, if so, what it was and whether it was followed.

(e)    The extent to which one party did or could have relied upon the evidence or submissions of another.

[9]    In response to the applicant’s contentions here, both the first respondent and the second respondents maintain that r 14.15 is not engaged in this case. Both respondents do acknowledge, however, that they:

1      Independent Māori Statutory Body v Auckland Council [2017] NZHC 678 at [8].

(a)responded to the same pleadings from the applicant, which did not make a separate case against the first respondent, as compared with the second respondents;

(b)each sought to have the decision (and resulting notices establishing the mataitai) under review upheld; and

(c)each relied upon the evidence and submissions of the other as appropriate.

[10]   They contend, however, that the threshold requirement in order for r 14.15 to apply, (whereby it must be established that the Ngāi Tahu parties as second respondents could have joined with the Crown in defending this proceeding), is not met. Further, they say there were good reasons why it was appropriate here to allow for separate representation and therefore, for two sets of costs to apply in this case.

[11]   The respondents say that they each have unique interests and positions which mean they could not reasonably have joined in their defence to the applicant’s proceeding and I agree. The first respondent is a Minister of the Crown exercising statutory authority. This is quite unlike the position of the second respondents, the Ngāi Tahu parties. It is true, too, that the Crown here would not have agreed to joint representation, especially given its practice not to engage in joint representation with private parties in judicial review or other public law proceedings. The particular responsibilities of the Crown in public law litigation of this type and its constitutional position I accept tends to mean that joint representation with private parties in circumstances such as those before the Court here is not appropriate. In this case, it was important, as I see it, that the first respondent and the second respondent remained at arm’s length from each other given too their relationship as Treaty partners.

[12]   The respondents say, too, that this Court acknowledged the separate and distinct interest of the second respondent Ngāi Tahu parties when earlier it granted their joinder application and in doing so rejected the applicant’s argument that their presence in these proceedings was unnecessary. I accept the second respondent’s

interests here were separate and distinct from those of the Minister’s, particularly with regard to issues relating to relief and this Court’s discretion on relief questions.

[13]   The respondents overall note too and I accept that the Ngāi Tahu parties provided evidence that was important to the Court’s consideration of the judicial review application, and the Court relied on this in its substantive decision. I accept also that the Ngāi Tahu parties and the Crown co-operated in the substantive case to avoid duplication, and each relied on the evidence and submissions of the other as appropriate.

[14]   The policy behind R.14.15 is to minimise costs by shortening hearings where a joint defence can reasonably be expected.2 In the present case the hearing of the judicial review application lasted only one day. I am satisfied the separate roles undertaken by the first and second respondents before the Court did not necessarily extend this hearing nor did it lead to duplication, reduced focus, or add anything to the time required for that hearing.

[15]   Lastly, in this case, as I allude to at para [173] of my 17 October 2022 judgment, there is a timing element that might suggest the applicant’s judicial review application was unnecessary at this point. That said, I accept the respondent’s submissions advanced to me that overall, this contributed in some measure to a position whereby it would not be unjust for the applicant to be required to pay the basic scale costs of both the Crown and the Ngāi Tahu parties here.

[16]In conclusion, then, I find:

(a)R 14.15 of the High Court Rules does not apply here because the first respondent and the second respondents could not reasonably have joined in the defence of these proceedings.

(b)If I may be wrong on this, and even if they could have joined in the defence, there are good reasons as I have outlined above, both

2 At [8].

pragmatic and principled, why they did not here, and why this Court should award two separate sets of costs.

(c)Both respondents therefore should be awarded the individual costs and disbursements they seek, given too that the quantum of these costs is accepted by the applicant in each case as reasonable.

[17]That said, orders are now made that the applicant is to pay:

(a)Costs and disbursements totalling $20,430.65 to the first respondent; and

(b)Costs and disbursements totalling $19,620.66 to the second respondents.

Gendall J

Solicitors:

Parry Field Lawyers Limited T/A Parry Field Lawyers for the Applicant Crown Law Office for the First Respondent

R J B Fowler King’s Counsel and Oceanlaw New Zealand for the Second Respondents