Mawhinney v Auckland Council HC Auckland CIV 2011-404-000063

[2011] NZHC 1728

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-000063

BETWEEN  PETER WILLIAM MAWHINNEY Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing:         (On the papers) Counsel:  Appellant in Person

AH Ash and CL Faesenkloet for the Respondent

Judgment:      5 December 2011 at 12:00 PM

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 5 December 2011 at 12.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

P Mawhinney: [email protected]

H J Ash: [email protected]

MAWHINNEY V AUCKLAND COUNCIL HC AK CIV 2011-404-000063 5 December 2011

[1]      I refer to my reserved judgment delivered on 26 October 2011.  I held that Mr Mawhinney’s appeal failed, and I recorded that, while I was not prepared to award costs against Mr Mawhinney personally, I was prepared to consider a costs award  against  the  Waitakere  Forest  Land  Trust  because  Mr Mawhinney  was claiming to appear as a trustee of that trust.

[2]      The Council has filed submissions seeking costs against Mr Mawhinney in his capacity as a trustee of the trust.  It seeks a costs award of $24,017 as well as disbursements of $867.25, on the following basis:

(a)       the proceedings should be classed as category 2 proceedings;

(b)the appropriate time allocation for each step taken under Band 2, except for preparation for the hearing, where it should be Band C;

(c)      an additional, time allocation for the steps taken in commencing the defence and in preparing for the hearing should be allowed.   This takes into account that Mr Mawhinney obtained an adjournment, and then filed an amended appeal, after the Council had already prepared and filed submissions for the originally scheduled hearing; and

(d)an uplift of 50 per cent in relation to the steps taken in preparation for  the  appeal,  and  in  the  attendance  at  the  hearing  should  be allowed,   because   Mr Mawhinney   unnecessarily   increased   the Council’s costs by failing to comply with Court directions, and by taking and/or pursuing unnecessary steps and arguments that lacked merit.

[3]      Mr Mawhinney’s response was filed late.   He submitted simply that costs should lie where they fall.  No reasons were advanced for that assertion.

[4]      The notice of appeal to this Court was in Mr Mawhinney’s name, as trustee of   the   Waitakere   Forest   Land   Trust   and   its   successors.      He   told   the Environment Court that he had control of the largest portion of the land within the Dilworth catchment area as trustee, and he told me that he remained a trustee of the Waitakere Forest Land Trust.[1]

[1] See [8] and[11].

[5]      In these circumstances, it is appropriate to consider a costs award against Mr Mawhinney, not in his personal capacity, but in his capacity as a trustee of the trust. Any award would fall to be met out of the assets of the trust.

[6]      Costs are in the discretion of the Court.[2]   However, that general discretion is qualified by the specific rules in relation to costs,[3]  and it is generally exercisable only  in  situations  not  contemplated  by  those  rules,  or  which  are  not  fairly recognised by them.[4]

[2] High Court Rules, r 14.1.

[3] High Court Rules,rr 14.2 to 14.10.

[4] Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at 21–28.

[7]      One of the primary principals applicable to the determination of costs is that the party who fails with respect to a proceeding, should pay costs to the party who succeeds.[5]

[5] High Court Rules, r 14.2(a).

[8]      Here, there are no factors which militate against the application of this general principal.

[9]      It is irrelevant that Mr Mawhinney appeared in person.  He purported to be acting as a trustee of the trust.  He is a lay litigant but he is not inexperienced in resource management litigation.   While a lay litigant is not entitled, except in exceptional circumstances, to recover costs, self-representation is no  protection against a costs award where the other party has incurred significant legal costs, and

has won.[6]    This is not a case where there was an overriding public interest which

would make it fair that costs should lie where they fall.   There was no general public interest in the arguments advanced by Mr Mawhinney.

[6] See Belling v Belling [Costs](1996) 9 PRNZ 296 (HC); Aplin v Lagan (1993) 10 FRNZ 562 (HC).

[10]     I am satisfied that there is no reason to depart from the general principal contained in r 14.2(a).

[11]    Rule 14.2(b) and (c) require that an award of costs should reflect the complexity and significance of the proceeding, and that costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application.     Proceedings  must  be  classified  as  falling  within  one  of  three

categories,[7] and the appropriate daily recovery rates are set out in Schedule 2 to the

rules.

[7] High Court Rules, r 14.3.

[12]     Here, the Council suggests that category 2 is appropriate.   I agree.   The proceedings were of average complexity, requiring counsel of skill and experience considered average in the High Court.

[13]     Here, the Council annexed to its memorandum a schedule that claimed costs at the appropriate rate detailed in Schedule 2 for category 2 proceedings – $1,880 per day – for each of the steps in the proceeding listed in Schedule 3.  Appeals are dealt with in items 14, 15 and 16 in Schedule 3.

[14]     The Council claimed costs for items 14 and 16 in accordance with the standard time allocation for band B proceedings.  There can be no argument with the Council’s claim in these regards.

[15]     In addition, the Council claimed costs on a 2B basis under item 2.  Item 2 relates to the commencement of the defence.  This item does not expressly refer to appeals.  The Council referred to the decision of this Court in Murphy v Rodney District Council,  where  the  Court,  dealing  with  an  Environment Court  appeal,

stated as follows: [8]

I have considered the appellant's submission that there should be no claim for preparation in terms of Item 2 of the Third Schedule.  It was however necessary for the respondent to consider the notice of appeal with care and revisit to the extent of the challenge what had been argued before the Environment Court and what should be the response in this Court.  That is a vital task that cannot be performed perfunctorily.   I will allow the preparation.

[8] Murphy v Rodney District Council HC Auckland CIV 2003-404-1929, 15 July 2004 at [2].

[16]     I am satisfied that in the circumstances of this case, it is appropriate to award the Council costs in respect of the commencement of the defence.   The notice of appeal was extremely widely drafted.  It raised a large number of issues. The Council was required to consider the notice of appeal carefully, to consider in detail the various decisions made by the Environment Court in both its 2003 and

2010 decisions, and to analyse how it should respond to the appeal to this Court. This was an essential task, and in the end, accurate analysis of those issues was determinative of the appeal.  I allow the time sought for the commencement of the Council’s defence to the appeal.

[17]     The Council also sought an additional time allocation in relation to this step. I am not persuaded that this is appropriate.  Ms Ash argued that the Council had to carry out the “commencement of the defence” step twice, because Mr Mawhinney filed two notices of appeal, an original notice, and then an amended notice.  While there were differences between the notices of appeal, in my view, it is not necessary to allow additional time in this regard.  The notices of appeal were not so different as to require significant additional time for this step.

[18]     The Council argued that the preparation for the appeal – item 15 in Schedule

3 – should be dealt with on a band C basis, rather than a band B basis.  I agree, although in the event, it makes no difference.  The time allowance under band B is the same as the time allowance for band C under item 15 in Schedule 3. Nevertheless,  I  accept  that  the  appeal  document  was  not  straightforward.   As already noted, it raised a large number of issues, many of which were not clearly expressed, but all of which the Council needed to respond to. Considerable time would have been required in preparing for the appeal hearing.  I am satisfied that band C is appropriate in relation to this step.

[19]     The Council also sought an additional time allocation in preparing for the appeal.  It submitted that Mr Mawhinney applied for, and obtained an adjournment, after the Council’s initial submissions had been filed, that he then filed an amended notice of appeal which recast his case and added new matters, that he then filed replacement submissions, and that the Council had to prepare its case afresh, to take into account Mr Mawhinney’s revised stance.

[20]     In my view, the Council’s submissions overstate matters.  While it is true that   Mr Mawhinney  did   belatedly  file  an   amended   notice  of   appeal,   and replacement submissions, I do not consider that the two notices of appeal were so significantly different, that significant time would have been taken in further preparation.   It seems to me that the better course is to consider this issue under r 14.6(3)(b).  I disallow any additional time allocation for preparing for the appeal.

[21]     Finally, the Council sought increased costs under r 14.6(3)(b) in relation to two steps: preparing for the appeal and appearing at the hearing.

[22]     It  argued that Mr Mawhinney contributed unnecessarily to the time and expense of the proceeding, by taking unnecessary steps, by pursuing arguments that lacked merit, and by failing to comply with the directions of the Court.

[23]     I concluded that many of the questions posed by Mr Mawhinney in his notice of appeal were either irrelevant, or immaterial.  I considered that a number of the questions posed did not arise out of the Environment Court’s determinations that were properly before me on appeal.   These matters were dismissed because they were brought out of time.  However, the Council still had to prepare for, and make submissions on the substantive issues raised.   The position is further complicated, because Mr Mawhinney failed to seek leave to file his amended notice of appeal in a timely fashion, and simply left the issue to be addressed at the substantive hearing.  As a result, the Council was required to spend time preparing to respond to all of the matters raised, including those which were subsequently ruled to be out of time.  If Mr Mawhinney had applied for leave as directed by the Court in its minute of 17 June 2011, then the scope of the appeal, and the associated costs  to  the  Council,  could  have  been  reduced  at  a  much  earlier  stage.

Mr Mawhinney’s  actions  in  failing  to  comply  with  the  Court’s  directions, contributed to unnecessary costs incurred by the Council.  The Council were also required to take other procedural steps that were caused by, or were consequential on Mr Mawhinney’s failure to comply with timetable orders, or directions given by the Court.

[24]     I have considered the comments of the Court of Appeal in Holdfast NZ Limited v Selleys Pty Limited.[9]   In my view, an increase of 50 per cent in the costs for preparing for the appeal, and in appearing at the hearing, are justified and appropriate in the present case for the reasons I have set out above.

[9] Holdfast NZ Limited v Selleys Pty Limited (2005) 17 PRNZ 897 (CA).

[25]     Accordingly, I consider that costs as follows are appropriate:

(a)       Commencement of defence – $3,760 (on a 2B basis, two days at

$1,880 per day).

(b)      Appearance at case management conference on 15 February 2011 –

$376 (on a 2B basis, 0.2 of a day at $1,880 per day).

(c)       Attendance at telephone conference on 17 June 2011 – $376 (on a

2B basis, 0.2 of a day at $1,880 per day).

(d)Preparation for appeal – $7,050 (on a 2C basis, 2.5 days at $1,880 per day plus 50 per cent).

(e)       Appearance at hearing – $7,050 (on a 2C basis, 2.5 days at $1,880 per day plus 50 per cent).

Total:  $18,612

[26]     In addition, the Council has incurred disbursements totalling $867.25.  It is appropriate to make an order requiring that these be met by Mr Mawhinney in his

capacity as trustee of the Waitakere Forest Land Trust under r 14.12(b)(1) & (3).

[27]     I award costs in favour of the Council against Mr Mawhinney as a trustee of the Waitakere Forest Land Trust of $18,612 plus disbursements of $867.25, making

a total payable of $19,479.25.

Wylie J