Movement v Minister of Transport

[2025] NZHC 1462

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-20

[2025] NZHC 1462

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review of a decision to make the Land Transport Rule: Setting of Speed Limits 2024

BETWEEN

MOVEMENT

Applicant

AND

MINISTER OF TRANSPORT

First Respondent

NEW ZEALAND TRANSPORT AGENCY

Second Respondent

Hearing:

On the papers

Counsel:

S R Gepp KC and J P Cundy for Applicant

P H Higbee and R M Fistonich for First Respondent
R E Brown and D A Northfield for Second Respondent

Judgment:

5 June 2025

JUDGMENT OF RADICH J

(Costs)

[1]    In this judicial review proceeding, filed in January 2025, Movement1 sought orders quashing the speed limits rule made by the Government in September 2024 (the 2024 Rule) which included a requirement that some roads have their speed limits changed to higher limits that were in place in 2019. It did so on a number of grounds, alleging in broad terms that, in making the 2024 Rule, the Minister acted inconsistently

1      Movement is a trust incorporated under the Charitable Trusts Act 1957.

MOVEMENT v MINISTER OF TRANSPORT [2025] NZHC 1462 [5 June 2025]

with his functions and objectives, was mistaken about material information, or failed to take material factors into account.

[2]    In March 2025, Movement filed an amended statement of claim and applied for interim orders. In the interim orders application, Movement sought orders that would, in practical terms, have halted the implementation of the 2024 Rule pending the outcome of its application for judicial review.

[3]In my decision of 14 April 2025, I declined Movement’s application.2

[4]I found that:

(a)Movement did not have a position that was necessary to preserve.

(b)Movement’s causes of action were not strong – the chance of it succeeding was not at a level that would weigh in favour of the exercise by the Court of its discretion to grant interim relief.

(c)Movement had delayed unnecessarily in bringing the proceeding and, then, in seeking interim relief.

(d)Adverse public interest consequences would have arisen if the interim orders were made.

[5]On 22 April 2025, Movement filed a notice of discontinuance.

[6]    Accordingly, the Minister and New Zealand Transport Agency Waka Kotahi (NZTA) each seek a separate award of costs in relation to the application for interim orders and in relation to the steps they have taken in the substantive proceeding.3

2      Movement v Minister of Transport [2025] NZHC 885.

3      Under r 15.2.3, unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues a proceeding against the defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

Parties’ positions

[7]    The Minister seeks costs and disbursements totalling $31,796.70; $14,579 of which relates to the interim orders application. It seeks costs on a 2B basis for case management steps and on a 2C basis for the commencement of its defence to the substantive proceeding and for its opposition to the application for interim orders.

[8]    The Minister says that a single award of costs in favour of the two respondents would not be appropriate because of the distinct positions that each advanced.

[9]    NZTA seeks a separate set of costs on a 2B basis totalling $11,596.35 (including disbursements). It says that it had good reason to defend itself separately and should be entitled to its own set of costs. And it says that a reduction in costs on the basis that the proceeding was brought in the public interest is not appropriate.

[10]   Movement says that no costs award should be made or that any award should be discounted significantly because:

(a)It sees its application as having been in the public interest – motivated by its concerns about risks posed to land transport users from increased speed limits under the 2024 Rule.

(b)It sees itself as having acted reasonably through proceedings that it regarded as having had merit.

(c)The band C costs sought by the Crown are not appropriate as the proceeding did not involve evidence or disclosure that was extensive.

[11]   In any event, Movement says that it is insolvent. Following receipt of the judgment on the interim orders application, Movement’s trustees resolved to put it into liquidation on 19 April 2025. Its notice of discontinuance followed. Therefore, it says, there is no reasonable prospect of it paying any costs award.

Costs framework

[12]   The Court has an overriding discretion in awarding costs.4 That discretion is qualified by the relevant costs rules and is to be exercised consistently with the principles of the costs regime.5 Through this “scheduler” approach to costs in pt 14 of the High Court Rules 2016, most costs claims are able to be resolved without the need for a decision from the Court. However, in this case, issues arise over:

(a)The Crown’s claim for costs on a 2C basis for the commencement of its defence to the substantive proceeding and for opposition to the interim orders application.

(b)Whether a separate award of costs for each defendant is appropriate.

(c)Whether, as Movement submits, a no costs award should be made or any award should be discounted significantly.

Categorisation of proceedings

[13]   Under r 14.3, proceedings are to be categorised as category 1, 2 or 3 proceedings. As both the Minister and NZTA submit, this proceeding is categorised appropriately  as a  category 2 proceeding  as, in  accordance with the description in  r 14.3, it is a proceeding of average complexity requiring counsel of skill and experience considered average in the High Court.

[14]   The issue that arises is as to the determination of what a reasonable time is for certain steps identified by the Crown. Under r 14.5, a determination is to be made, in relation to each step identified in sch 3 of the Rules, of how much time is needed to complete that step. Band A is used if a comparatively small amount of time is considered reasonable. Band B is used if a normal amount of time is considered reasonable. Band C is used if a comparatively large amount of time is considered reasonable.

4      Rule 14.1 of the High Court Rules 2016 and Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [43]–[48].

5      Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [16]–[17].

Separate awards

[15]   Under r 14.15, the Court must not allow more than one set of costs, unless it appears that there is good reason to do so, if several defendants defended a proceeding separately and if it appears to the Court that all or some of them could have joined in their defence.

[16]   The Court will consider whether the parties have a common or overlapping interest and the extent to which separate cases needed to be run.6

Refusal of, or reduction in, costs in public interest litigation

[17]   Under r 14.7, despite the scheduler approach prescribed in pt 14, the Court may refuse to make an order for costs or may reduce the costs otherwise payable under the rules in a number of situations, one of which is if the proceeding concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding.7

[18]   In order for costs to be refused or reduced under this rule, the proceeding must have merit and involve a matter of genuine public interest and importance beyond the interests of the unsuccessful litigant and the unsuccessful party must have conducted the proceeding reasonably.8

Discussion

Categorisation of proceedings

[19]   While I understand the point made for the Minister – that the case involved eight grounds of review, required considerable initial disclosure, related to a complex piece of delegated legislation with a number of affidavits – I do not see that band C is appropriate for the steps identified. The litigation, and those steps within it, is not at a level of complexity requiring the comparatively large amount of time that would be

6      See generally Independent Māori Statutory Board v Auckland Council [2017] NZHC 678 at [9].

7      Rule 14.7(e).

8      Taylor v District Court at North Shore (No. 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9], referenced in New Zealand Climate Science Education Trust v National Institute of Water and Atmosphere Research Ltd [2013] NZCA 555 at [11].

needed for band C to apply. Accordingly, when the steps for which band C claims are made are reduced to band B, the claim for costs by the Minister reduces to $15,057 with disbursements of $248.70; a total of $15,305.70.

Separate awards

[20]   I accept that a single award of costs for the two respondents would not be appropriate here because the Minister and NZTA had distinct positions that were advanced separately.

[21]   Separate relief was sought against each respondent, both in the substantive proceeding and in the interim orders application. The Minister’s position focused on the lawfulness of the 2024 Rule and the decision-making that led to it. NZTA, on the other hand, focused on its role as Registrar and as the Road Controlling Authority for state highways. It gave evidence and made submissions on practical concerns about the orders sought; concerns that were of relevance on the interim orders application. It limited its submissions and evidence to the practicalities of the interim orders application and, in this sense, there was no duplication between the cases presented for each respondent, either in documents filed or submissions made.

[22]   Accordingly, and subject to the reductions discussed in the next section of this decision:

(a)Costs and disbursements for the Minister of $15,305.70 are appropriate.

(b)The claim for costs and disbursements by NZTA of $11,596.35 (being costs on a 2B basis of $11,472 plus disbursements of $124.35) is appropriate.

Refusal of, or reduction in, costs

[23]   In my decision on the interim orders application, I considered in a preliminary way each of the eight causes of action.9 As I said there, it is premature to reach firm conclusions on the applicant’s case. But, at a preliminary level and for the reasons

9      Movement v Minister of Transport, above n 2, at [45]–[58].

given, the causes of action would have been difficult to make out and the chance of the applicant succeeding was not assessed to be at a level that weighed in favour of the exercise by the Court of its discretion to grant interim relief.

[24]   Nonetheless, those conclusions are not determinative and I accept that the proceeding involved a matter of genuine public interest and importance beyond the interests of Movement itself. I accept that Movement was motivated genuinely by its concern for the risks it saw as being posed to land transport users from the increased speed limits. The issues it raised were not relevant to the parties alone.

[25]   Movement did act reasonably in a procedural sense and it did act promptly in discontinuing the substantive proceeding in light of the outcome of the interim order application. However, as I said in the decision, its delay in seeking interim relief contributed to the overall difficulties it faced on its application.

[26]   Accordingly, this is not a case in which no costs order should be made but I see a 20 per cent reduction as being appropriate. It is the net effect of the factors mentioned under this head.

[27]Movement’s insolvency cannot, in and of itself, affect the awards made.

Result

[28]I make the following costs orders:

(a)Costs are payable to the Minister in the sum of $12,045.60 plus disbursements of $248.70.

(b)Costs are payable to NZTA in the sum of $9,177.60 plus disbursements of $124.35.

Radich J

Solicitors:

Jack Cundy, Auckland for Applicant

Crown Law Office, Wellington for First Respondent Bell Gully, Wellington for Second Respondent