Keir v Auckland Council - [2023] NZHC 3303

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-446

[2023] NZHC 3303

UNDER the Judicial Review Procedure Act 2016

BETWEEN

JOHN RICHARD KEIR and RACHAEL

KEIR for themselves and as trustees of the JOHN RICHARD KEIR TRUST AND RACHAEL SIMMS TRUST

Applicants

AND

AUCKLAND COUNCIL

First Respondent

ROBERT SIMMS and LYNETTE JEAN SIMMS

Second Respondents

Hearing: On the papers

Appearances:

M Casey KC and A J Davidson for the Applicants K A Fraser and R E Argyle for the First Respondent

DTD Horton and T Gibbons for the Second Respondents

Judgment:

21 November 2023

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 21 November 2023 at 3:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Solicitors / Counsel: Mr M Casey KC and Ms A J Davidson, Barristers, Auckland Mr N Woods (applicants’ instructing solicitor), Rice Craig, Papakura
Ms K Fraser and Ms R E Argyle, Rice Speir, Auckland Ms DTD Horton, Barrister, Auckland
Mr T Gibbons (second respondents’ instructing solicitor), Thomas Gibbons Law, Hamilton

KEIR v AUCKLAND COUNCIL [2023] NZHC 3303 [21 November 2023]

[1] Further to my judgment of 30 June 2023 granting the Keirs’ application for judicial review and quashing decisions of Auckland Council,1 the parties were unable to agree costs. The Keirs seek costs on a 2B basis, together with disbursements, totalling $37,765.63. The respondents oppose.2

Background

[2] The Keirs challenged Auckland Council’s decisions of 19 May 2021 not to notify the Simms’ application for, and to grant, subdivision consent to the Simms to allow for the division of a family farm through rearrangement of titles owned by the Simms, their son Bruce Simms and the Keirs.

[3]In May 2022, the Council and the Simms each filed statements of defence.

[4] On 1 June 2022, Jagose J directed the allocation of a two-day hearing. The hearing was allocated to commence on 3 April 2023.

[5] On 25 August 2022, the Council advised that it did not intend to file evidence or submissions and would abide the decision of the Court.

[6] On 17 January 2023, Jagose J issued a minute indicating that the Court nonetheless expected the Council’s evidence to meet its “so-called ‘duty of candour’”
– that those whose decisions are under challenge have “a duty to explain the decision- making process, the relevant factual and other circumstances and the reasons for the decision”.3

[7] On 9 February 2023, the Simms also advised that they did not intend to file evidence or submissions and would abide the decision of the Court.

[8] There was no appearance by or for the Council at the hearing. Ms Horton appeared for the Simms but during the hearing sought, and was granted, leave to be excused. The hearing effectively proceeded by way of formal proof.

1 Keir v Auckland Council [2023] NZHC 1658, (2023) 24 ELRNZ 886.
2 Reply memoranda were also filed by the applicants, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3303
Decision Date: 21 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Keir v Auckland Council was heard by Gault J, focusing on the determination of costs arising from a judicial review application. The applicants, John Richard Keir and Rachael Keir, sought to challenge Auckland Council's decisions regarding a subdivision consent application by Robert Simms and Lynette Jean Simms. The primary legal issue was whether the applicants were entitled to costs on a 2B basis, as requested, or if the costs should be reduced or refused entirely.

The court considered the general principle that the unsuccessful party in a proceeding should pay costs, as outlined in the High Court Rules 2016. The Council argued that it should not be liable for the full costs due to its decision to abide the Court's decision and the fact that the second respondents also chose to abide, which resulted in a shortened hearing. The Simms argued that costs should either lie where they fall or be apportioned with the majority falling on the Council, given that the Council's decision was under review.

The court found that the Council's decision to file a statement of defence and put the applicants to proof, despite knowing the Keirs' concerns, contributed to the necessity of the proceeding. The court also noted that the Simms, by filing a defence and providing inadequate information, shared some responsibility for the Council's errors. Ultimately, the court ruled that costs should follow the event without reduction and that the Council should be liable for the applicants' 2B costs and disbursements. The respondents were held jointly and severally liable for the applicants' costs totalling $37,765.63.

This decision highlights the importance of the duty of candour in administrative law proceedings and the consequences of not fulfilling that duty when faced with a challenge to a decision-maker's actions. The court underscored that parties who contribute to the necessity of a proceeding, through their conduct or errors, may be held liable for the full costs incurred by the successful party.

Orders