Lee v Rotorua District Council - [2022] NZHC 2719

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-000025

[2022] NZHC 2719

UNDER Judicial Review Procedure Act 2016; the New Zealand Bill of Rights Act 19690; and the Declaratory Judgments Act 1908

IN THE MATTER OF

an application for Judicial Review of a decision of the Rotorua District Council to submit the Rotorua District Council (Representation Arrangements) Bill to Parliament

BETWEEN

ROBERT LEE

Applicant

AND

ROTORUA DISTRICT COUNCIL

Respondent

AND

THE ATTORNEY GENERAL

As Intervenor

Hearing: On the papers

Appearances:

R Lee, Applicant in person

L F Muldowney for the Respondent A F Todd for the Attorney General

Judgment:

20 October 2022

JUDGMENT OF HARVEY J

This judgment was delivered by me on 20 October 2022 at 11.30am

…………………………
Registrar/Deputy Registrar

Solicitors:Tompkins Wake, Hamilton – L F Muldowney Crown Law Office, Wellington – A F Todd

And to: R Lee

LEE v ROTORUA DISTRICT COUNCIL [2022] NZHC 2719 [20 October 2022]

Introduction

[1] Robert Lee commenced judicial review proceedings against the Rotorua District Council on 29 April 2022 concerning a proposed law change by the Council to alter its voting system. Six weeks later, the Attorney-General sought leave to participate in the proceedings, given the procedural and constitutional issues. Then on 26 July 2022, citing the mismanagement of the file by the Court and the involvement of the Attorney-General as his reasons, Mr Lee discontinued the proceedings.

[2] The Council now seeks costs against Mr Lee on a 2B basis, with the preparation of the statement of defence and affidavits on a 2C basis. In total, legal costs of $39,196 and disbursements of $500 are sought from Mr Lee. In support of its claim, the Council submitted that there is a presumption that when a proceeding is discontinued, the plaintiff must pay the defendant’s costs up to and including the discontinuance.1 In addition, the Council submitted that this is not a case where the Court should depart from that usual presumption.

[3] Mr Lee disagreed, contending that the presumption was displaced as he was deprived of his day in court by the Attorney-General’s intervention and due to case “mismanagement” by the Court which left him no option but to withdraw. He also argued that the 2C rates are wrongly claimed. If costs are awarded, he submitted that the sum should be $29,158.

[4] The issues for determination are, firstly, should the presumption be displaced? Secondly, are the 2C costs claimed appropriate?

Background

[5] On 19 November 2021, the Council passed two motions regarding its representation model for Rotorua. The first motion was that:

…that the ideal representation model for Rotorua would comprise;

· 1 Mayor elected at large
· 1 Māori ward with 3 seats (Te Ipu Wai Taketake ward)

1 High Court Rules 2016, r 15.23.

·     1 General ward with 3 seats (Te Ipu Wai Auraki ward)
·     4 “At large” seats
·     A Rotorua Lakes Community Board
·     A Rural Community Board

(the preferred model)

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: [2022] NZHC 2719
Decision Date: 20 October 2022

CaseChat Overview and Summary

The case of Lee v Rotorua District Council involved an application for judicial review brought by Robert Lee against the Rotorua District Council regarding a proposed law change to alter the Council's voting system. The Council sought costs against Mr Lee after he discontinued the proceedings, arguing that the presumption of costs liability upon discontinuance should apply. Mr Lee contended that the presumption should be displaced due to the Attorney-General's intervention and alleged mismanagement by the Court. The issues for determination were whether the presumption of costs liability should be displaced and if the costs claimed were appropriate.

The Court found that Mr Lee's arguments were not sufficient to displace the presumption that a discontinuing plaintiff must pay the defendant's costs. The Court held that the costs regime is compensatory, not punitive, and that Mr Lee commenced the proceedings and then unilaterally withdrew them. The Council had a duty to respond and incur legal costs, and the Court found no compelling reason as to why it should not be entitled to costs. The Court also found that the 2C costs claimed by the Council were appropriate for the steps taken in responding to Mr Lee's proceeding.

Robert Lee was ordered to pay the Rotorua District Council $39,696 in costs.

Orders