Movement v Waka Kotahi
[2023] NZHC 809
•17 April 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-000735
[2023] NZHC 809
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of
decisions under sections 19A and 19B of the Land Transport Management Act 2003
BETWEEN
MOVEMENT
Applicant
AND
WAKA KOTAHI
First Respondent
MINISTER OF TRANSPORT
Second Respondent
AUCKLAND TRANSPORT
Intervener
Hearing: On the Papers Appearances:
S R Gepp and L S B Acland for Applicant
V L Heine KC, T D Smith and A J Wicks for First Respondent H T N Fong and N B de Lautour for Second Respondent
P M S McNamara for Intervenor
Judgment:
17 April 2023
JUDGMENT OF GRICE J
(Costs)
Introduction and background
[1] This costs application follows the unsuccessful application for judicial review made by Movement in relation to decisions made by Waka Kotahi NZ Transport
MOVEMENT v WAKA KOTAHI [2023] NZHC 809 [17 April 2023]
Agency (Waka Kotahi) to adopt the National Transport Land Programme 2021–2024 (NLTP).1
[2] Climate change is an important issue for the land transport sector.2 However, as I noted in the substantive judgment the Court’s role in the judicial review was limited to ensuring Waka Kotahi had exercised its decision-making in the preparation and approval of the NLTP to ensure that it contributed to the purposes of the relevant legislation and gave effect to the Government Policy Statement on land transport (GPS).3
[3] Waka Kotahi was the successful respondent in the judicial review application and now seeks costs in the usual manner. Waka Kotahi is a statutory agency which is required to, among other things, oversee the planning, operation, implementation, and delivery of public transport and manage the funding of the land transport system. The second respondent, the Minister of Transport, is the responsible Minister. The Minister has not filed an application for costs. Nor has the intervener, Auckland Transport.
[4] Movement is a charitable trust that advocates for safe, accessible and sustainable transport. It said that it had brought the proceeding in the public interest, having regard to the urgency and severity of the climate crisis and the contribution of land transport emissions to New Zealand’s carbon emissions.
[5] Movement’s application for judicial review was based on allegations that Waka Kotahi had failed to take into account various issues in relation to climate change, particularly with reference to greenhouse gas emissions (GHG), when it prepared and adopted the NLTP.
[6] The application for judicial review not only challenged Waka Kotahi’s decision-making at board level but also effectively at the management level, particularly in the application and use of Waka Kotahi’s assessment tools as well as the process for the preparation of the NLTP.
1 Movement v Waka Kotahi [2023] NZHC 342.
2 At [262].
3 At [263].
[7] The judicial review took three hearing days. While there was no cross-examination there was a good deal of evidence by way of affidavits referring to numerous documents. The challenge to the decision-making was diffuse. Movement’s approach to the judicial review involved consideration of the decision-making process and operations in some detail, including the assessment tools that Waka Kotahi employed.
[8] There were three causes of action, some of which overlapped. Essentially, however, the judicial review focused on the approach to assessment of GHG emissions and their prioritisation as a factor in the decision-making as well as whether or not Waka Kotahi should have used quantitative assessments to measure GHG emissions and climate change factors. The judicial review claimed that the NLTP was unlawful due to a failure to comply with the statutory objectives of the Land Transport Management Act 2003 (LTMA) and the requirements of the GPS. The third cause of action I found related to a decision which was not the subject of the judicial review and related to applications for funding of particular activities for investment rather than relating to the adoption of the NLTP.4 This was outside the scope of the review.
[9] Initially, Movement sought that the NLTP be set aside.5 One of the components considered in the preparation of the NLTP are the regional land transport plans (RLTPs) prepared at local authority level. The setting aside of the NLTP would have significant effects for the local authorities in relation to the transport activities planned in the regions. This was particularly so in the case of Auckland and Wellington, where there was substantial expenditure allocated to, in particular, mode-neutral and public transport projects. However, the setting aside of the NLTP would also significantly affect smaller regions.
[10] Therefore, Auckland Transport intervened to protect its position both on its own behalf and on behalf the other local authorities. Affidavits in support of the regional positions were also filed. Mr McNamara appeared representing Auckland Transport.
4 At [252]–[256].
5 Movement changed its position as to the remedy sought shortly before the hearing.
[11] Shortly before the hearing, Movement indicated that it no longer sought to set aside the NLTP because of the substantial effects that would have and also because the preparation of the next NLTP and GPS was imminent. However, it sought to proceed with this application in order to seek guidance from the Court for the preparation of the next iterations of those documents.
[12] Notwithstanding this, Mr McNamara indicated he still wished to be heard due to the concern that if the Court provided “guidance and directions” in relation to the preparation of the next NLTP, as sought by Movement, one of the unintended consequences might be that Waka Kotahi could not approve funding of activities under s 20 of the LTMA. If the Court indicated that the NLTP was not lawful, whether it set it aside or merely issued guidance on the preparation of the next NLTP, there may have been constraints on granting approval where the activity related to activities which were pursuant to an “unlawful” NLTP. The production of the NLTP and the approval of individual activities are closely intertwined. The individual activities or operational programs cannot be approved, except in limited or special circumstances, including emergencies, unless they are within the scope of the NLTP.
[13] Movement criticised the intervener’s involvement and its continued involvement after Movement had indicated that it no longer sought that the NLTP be set aside. I see no merit in that submission. The issues involved were important to Auckland Transport as well as the other authorities which had prepared their RLTPs and were reliant on the funding by Waka Kotahi, pursuant to funding proposed in the in the NLTP. The intervener approached matters responsibly. Affidavits setting out the position of a transport authority or local authorities were required to explain their roles and positions insofar as the NLTP was concerned. They were helpful for the Court. The approach by the local authorities in having only Auckland Transport appearing was responsible. The intervener does not seek costs.
[14] Movement’s criticism of Waka Kotahi’s approach to the NLTP preparation and steps involved a detailed analysis of the operations management and board decision-making processes of Waka Kotahi. In order to respond to that, Waka Kotahi was required to file affidavits from its chair, management personnel and consultants.
[15] Movement does not criticise the filing of the affidavits by the chair of Waka Kotahi and the managers. However, it says the other affidavits filed are excessive. In addition to the local authority and Auckland Transport affidavits, these were largely from experts and consultants who responded to the specific criticisms of the assessment tools and process adopted by Waka Kotahi. The criticisms were made by the deponents of Movement’s affidavits. I consider the affidavits filed by the respondents and the intervener were a reasonable response to the material filed and the claims pursued by Movement. In order to deal with Movement’s claims the judgment went into considerable detail on the operations and decision-making processes adopted by Waka Kotahi as well as the criticisms made by Movement.
Principles applying to costs awards
Generally
[16] The aim of the costs regime in the High Court Rules 2016 is to achieve predictability, consistency and expediency in determining costs.6 Once the skill and time classification has been determined it should be possible to make the necessary calculation with reference to sch 2 and sch 3 of the Rules. Subject to the provisions of the Senior Courts Act 2016, all matters relating to costs are at the discretion of the Court.7 However, that discretion is generally to be exercised in accordance with rr 14.2–14.10.8
[17] In addition to the particular claim by Movement that the judicial review costs attract the provisions in the costs rules relating to public interest costs, the general principles applying to the determination of costs insofar as relevant here are as contained in r 14.2(1):
(a)the party who fails with respect to a proceeding or an interlocutory application should pay costs to the successful party;
6 High Court Rules 2016, r 14.2(1)(g).
7 Rule 14.1.
8 See Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 at [19].
(b)an award of costs should reflect the complexity and significance of the proceeding;
(c)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;
…
(f)an award of costs should not exceed the costs incurred by the party claiming costs; and
(g)so far as possible the determination of costs should be predictable and expeditious.
Classification
[18] For the purposes of r 14.2(1)(b), proceedings must be classified as falling within one of the following skill categories specified in r 14.3:
(a)Category 1 proceedings: proceedings of a straightforward nature able to be conducted by counsel considered junior in the High Court.
(b)Category 2 proceedings: proceedings of average complexity requiring counsel of skill and experience considered average in the High Court.
(c)Category 3 proceedings: proceedings that because of their complexity or significance require counsel to have special skill and experience in the High Court.
[19] Generally, the appropriate category will be the subject of the case management review memorandum, or determined at the first case management conference. Schedule 2 of the High Court Rules contains the appropriate daily recovery rates.
[20] The categorisation of proceedings should be dealt with before the hearing. However, in this case the parties reserved their position until after the evidence was exchanged. Waka Kotahi maintained throughout that the proceeding might appropriately be categorised as a category 3 proceeding and Movement’s position was that category 2 was appropriate.
Bands and time allocations
[21] For the purposes of r 14.2(1)(c), a reasonable time for a step in a proceeding is generally the time specified for that step in sch 3 of the High Court Rules.9 The bands are set out as follows:10
(a)band A, if a comparatively small amount of time is considered reasonable for that step;
(b)band B, if a normal amount of time is considered reasonable for that step; or
(c)band C, if a comparatively large amount of time for the particular step is considered reasonable for that step.
[22] Waka Kotahi seeks costs calculated on a 3B basis for all steps apart from the “preparation of affidavits, list of issues or authorities and agreeing common bundle”, where it seeks costs on a 3C basis. The costs sought on that basis total $74,483. It also seeks disbursements for filing fees and expert fees for the two expert witnesses who provided affidavits on behalf of Waka Kotahi, totalling $15,341.30.
Public interest
[23] Also relevant to this costs application is consideration of whether the costs application should be dismissed or there should be a reduction in the amount awarded on the basis that Movement acted in the public interest.
9 High Court Rules, r 14.5(1).
10 Rule 14.5(2).
[24]Rule 14.7(e) of the High Court Rules provides:
14.7 Refusal of, or reduction in, costs
Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—
…
(e)the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding …
[25] There is little assistance to be gained by comparing one case to another in relation to public interest matters. The circumstances vary considerably. Some of the factors which are relevant are: the issue involved; whether the matter is novel or has been litigated before (or similar issues have been litigated); the circumstances of the parties, including that of the applicant; and the challenges involved. In addition, the reasonableness of the claims involved and how the proceeding has been conducted are also considerations.
[26] Having said that a successful claim that no costs be awarded because of public interest proceedings has been recently applied in Lawyers for Climate Change Action NZ Inc v Climate Change Commission.11 That case also involved climate change issues. It challenged the advice given to the responsible Minister under the Climate Change Response Act 2002 by the then newly established Climate Change Commission following significant amendments to the Act in response to the Climate Emergency.
[27] In that costs decision Mallon J noted that in the substantive judgment she had agreed with the applicant on a number of contested issues, including that the climate change advice by the Commission was amenable to review and that the expert evidence was admissible.12 She found that some of the Commission’s advice was potentially misleading.13 She had also noted in her substantive judgment that judicial review provided a check on the very important statutory task vested in the
11 Lawyers for Climate Action NZ Inc v Climate Change Commission [2023] NZHC 527. This decision was released around the time of the costs applications in this case. It was not referred to in any detail in the submissions on costs but was referred to the Court by Movement following the filing of the reply submissions by Waka Kotahi.
12 At [2].
13 At [2].
Commission, and that challenge and debate could lead to better outcomes.14 As her Honour noted in the substantive decision, “[u]nsuccessful challenges can bring with it the public benefit of legitimacy to the Commission’s work.”15
[28] Her Honour also noted that the Commission’s submission that the important work it carried out was likely to be contentious and the Government actions that followed had the potential to have major impact on many aspects of our society and economy.16 Therefore its work could expect to be challenged through court proceedings. However the Court also pointed out that it did “not take a position that costs should always lie where they fall in such challenges because climate change is generally an issue of high public importance.”17 Her Honour went on to say that the starting point for the High Court Rules is that any challenge to a costs order is subject to the general principle that the party who fails must pay costs to the party who succeeds.18 The Court would only depart from that general principle if it were “persuaded by the circumstances before it that it is appropriate to do so because ‘the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding.’”19
[29] Her Honour considered it was appropriate to depart from the general principle in the circumstances of that case because the proceeding concerned the first occasion that the Commission advised the Minister pursuant to the amended legislation.20 She said that the applicant pursued the challenge as a not-for-profit group formed for the purposes of promoting more ambitious climate change action in the face of the climate change emergency.21 It was not seeking a pecuniary or other direct benefit for itself but was:22
… a group qualified and skilled to consider the legal issues on which the grounds of review are based. It advanced high-level principles and
14 At [3], referring to Lawyers for Climate Action NZ Inc v Climate Change Commission [2022] NZHC 3064 at [315].
15 At [3], referring to Lawyers for Climate Action NZ Inc v Climate Change Commission, above n 14, at [315].
16 At [5].
17 At [5].
18 At [6].
19 At [6], citing r 14.7(e) of the High Court Rules.
20 At [7].
21 At [7].
22 At [7].
interpretation issues of general application rather than minor or narrow issues of limited significance. In doing so, subject to the outcome of any appeal, its challenge has settled points that will not require re-litigation.
[30] Her Honour went on to note that earlier cases had indicated that where there are underlying issues which are difficult and the resolution had a significance which went beyond the present case, public interest litigants:23
… may meet a real need in presenting important perspectives that would otherwise be unrepresented in the decision-making processes. Such representation may assist in the legitimacy of the process and its outcome …
[31] At the same time her Honour noted there was a material cost to the Commission in having to defend the proceeding.24 She said that while in correspondence and in-person discussions before the litigation the Commission had fully responded to the applicant’s concerns and invited it to reconsider its intended litigation on the basis that it had no prospects of success, this did not mean that the applicant had acted unreasonably in bringing the proceeding. Indeed, it had succeeded on some points.25 Therefore her Honour concluded the costs should lie where they fell.
Issues raised by Movement regarding costs
[32] I propose addressing only the matters raised by Movement in relation to the costs claim. It makes no specific criticism of the calculations and schedule provided by Waka Kotahi. Therefore I accept those calculations are correct on the basis that Waka Kotahi has calculated them in part on a 3B and 3C basis, including a claim for second counsel and claims for the disbursements including the witnesses’ costs and expenses which have been incurred. No criticism has been made of the reasonableness of those calculations or claims. Therefore I accept them as reasonable on their face.
Quantum of costs — categorisation and second counsel
[33] Waka Kotahi says for a number of reasons this proceeding was complex and significant with wide practical implications and a substantial amount at stake. I do not
23 At [7], citing West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 133 at [4]; and Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 167, (2014) 25 PRNZ 637 at [24].
24 At [9].
25 At [9].
understand Movement to be contesting that assertion or the reasons for it. In fact, Movement points to the importance and complexity of the Waka Kotahi decision-making process as supporting its argument that the proceeding is a matter of public interest and so should not attract a costs award against it.
[34] The factors which are said to give rise to proceedings which were “undoubtedly complex and significant, with wide practical implications and a substantial amount at stake” and so justify a category 3 costs award are given as follows:
(a)the decision involved a challenge to a decision-making process spanning over a year that involved a wide range of participants from both Waka Kotahi and dozens of approved organisations, and which included the assessment of hundreds of individual activities for inclusion in the NLTP;
(b)the substantial sum at stake in the NLTP, which provides directly from the National Land Transport Fund (NLTF) more than $15 billion in funding for transport projects, and which was an integral part of an overall transport investment package (comprising local share and Crown funding) of more than $24 billion;
(c)the significant investment of time and resources of local authorities and Waka Kotahi in preparing RLTPs and then the NLTP on the basis of prioritisation of activities in thoseplans;
(d)the expected impact of investment from the NLTP, which would have been disrupted by a successful challenge, was directed to activities with significant public interest impacts, including safety activities and activities designed to promote emissions reduction; and
(e)the impact on third parties from a successful challenge to the NLTP, as a successful challenge to the NLTP would have disrupted the transport programmes of local authorities and created uncertainty for
construction sector participants over the status of projects under the NLTP.
[35] I accept this proceeding was complex and would justify a category 3 costs award. While some of the arguments had been traversed before, the amount and complexity of the material that needed to be placed before the Court and explained in the judicial review was substantial. The Waka Kotahi decision-making was, of necessity, complicated and involved many checks and balances. The approach by Movement necessitated a detailed analysis of the process in the decision-making as well as consideration of the Waka Kotahi tools. In addition, the NLTP involved a significant public investment, so the challenge warranted a careful and detailed response by Waka Kotahi. Indeed, that was imperative given the diffuse nature of the allegations made by Movement. The fact that Movement advised shortly before the hearing that it did not seek to set aside the NLTP did not shorten the proceedings by any great amount. It may have abbreviated the role that Auckland Transport played at the hearing, but it did not shorten or simplify the arguments and amount of material that was required to be covered.
[36] In addition, as I have mentioned, the third cause of action was unsustainable, and this had been pointed out by the respondent before the hearing. However, that was still pursued at the hearing.
[37]Therefore, I consider that the appropriate categorisation is category 3.
[38] A band B allocation is sought in relation to the time taken for all steps except “preparation of affidavits, list of issues or authorities and agreeing common bundle”, for which a band C allocation is sought. Band B allows a normal amount of time considered reasonable for that step. A band C allocation is appropriate if a comparatively large amount of time for the particular step is considered reasonable for that step.
[39] I consider that it is appropriate to allow a time band of C for the “preparation of affidavits, list of issues or authorities and agreeing common bundle” given the
amount of material, which filled numerous bound volumes, and the wide-ranging arguments. The balance of the steps are appropriately calculated according to band B.
[40] The reasons I have given relating to the significance and complexity of the arguments, the width of the issues raised and the need to address the detail in order to deal with Movement’s claims, as well as the significant number of documents involved, are relevant to the application for a costs award for second counsel.
[41] This is a case where it would have been very difficult for counsel for Waka Kotahi to manage the case without the assistance of second counsel, both in the preparation and in the hearing itself. Judicial reviews have different considerations when it comes to the need for assistance at the hearing. Because of the range of documents and the use of both the electronic bundle and the hardcopy bundle it would have been very difficult for counsel to locate the required material in a timely manner without the assistance of second counsel. It assisted the Court to move through the arguments more quickly.
[42]I therefore certify for second counsel.
Public interest
[43] Movement says that the application of costs should be dismissed or reduced based on the significant public interest in the proceeding and Movement’s reliance on the wording of the statutory framework and GPS.
[44] I have set out the legal principles in relation to consideration of costs where proceedings have a significant public interest component. While costs will usually follow the event, where there is a matter of genuine public interest beyond the interests of the immediate litigants, the case has merit, and the litigant has acted reasonably, the Court will take into account the principle that awards of costs should not be such as to act as a deterrent to public interest groups in the bringing of cases. However, against that, it is also a matter of public interest that:26
26 Northland Environment Protection Society Inc v Chief Executive of the Ministry of Primary Industries [2017] NZHC 2435 at [7].
… the resources of the courts and responsible government agencies should not be taken up by defending cases which, although they might be genuinely motivated, have no merit or are conducted unreasonably. A balancing exercise is called for.
[45] In this case one of the primary issues was the interpretation of the LTMA and its purpose as well as the application of the strategic priorities set out in the GPS in the preparation of the NLTP. Both those issues had been addressed in All Aboard Aotearoa Inc v Auckland Transport.27 However, that case had involved an RLTP which was required to be “consistent” rather than give “effect” to the GPS.28
[46] The arguments made by Movement in this case were therefore not before the Court for the first time. Waka Kotahi suggests that Movement was part of the All Aboard Aotearoa group in the earlier case. Movement has not indicated otherwise and it was able to obtain copies of submissions made in that case in relation to the arguments made there. In any event, Movement was well aware of that case and argued that the Judge had approached the interpretation of the LTMA incorrectly.
[47] In addition, the level of detail of the criticisms of Waka Kotahi’s operational decision-making added to the time and complexity of the proceeding. In view of the approach taken and the criticism of the operational decision-making, this was unavoidable. Nevertheless, it did invite a consideration of matters better left to the experts.
[48] There have been a number of climate change decisions such as the All Aboard Aotearoa case and a number brought by Lawyers for Climate Action NZ, including the one I have referred to above. While there will be different contexts in which climate change will be an important factor, as Mallon J warned in Lawyers for Climate Action NZ not every case involving climate change will justify a reduction in costs where the applicant is unsuccessful.29 In that case, her Honour placed considerable weight on the fact that the applicant was a not-for-profit group formed for the purposes of promoting climate change action in the face of the climate change emergency.30
27 All Aboard Aotearoa Inc v Auckland Transport [2022] NZHC 1620.
28 At [171]–[181].
29 Lawyers for Climate Action NZ Inc, above n 11, at [7].
30 At [7].
She noted it was not seeking a pecuniary or other direct benefit for itself but was a group qualified and skilled to consider the legal issues on which the grounds of a review were based.31 She said it advanced high-level principles and interpretation issues of general application “rather than minor or narrow issues of limited significance.”32 In this case I do not have the level of detail about the applicant which was apparently before her Honour in the Lawyers for Climate Action NZ case. However, I have no reason to doubt the public-spirited motivation of the applicant, although it descended into a level of detail that could not be described as “high-level principles”.
[49] In this case, while the decision-making involved was significant, the relevant legal framework had already been considered by this Court, as had the interpretation of the GPS, albeit in a different context in relation to RLTPs rather than the NLTP. In addition, the challenges made by Movement in some respects were without a solid basis in relation to the third cause of action. The costs involved in defending this action, because of the extent of criticism of the detailed decision-making of Waka Kotahi, would have been substantial. In those circumstances I do not consider it appropriate that the costs application should be dismissed, costs lie were they fall or are reduced. The balance in this case favours the granting of costs. I considered whether it would be appropriate to reduce the costs by some percentage or by reference to the categorisation and banding. However, I can see no justification for that approach in this case, where the matters have been before the Court already and for the other reasons I have set out above.
[50] Movement also pointed to the fact that the Minister had said a mistake had been made in the GPS by reference to an “emissions reduction target” set by the Climate Commission, when in fact the Climate Commission had not set any targets for any particular sector. I did not place significant weight on the mistake in my interpretation of the GPS or NLTP. It was obvious there was a mistake and would not have been misleading to the reasonably informed reader of the GPS. There was not a great deal of time taken in relation to this particular point at the hearing in any event. It is also relevant that the Minister does not seek costs in relation to this matter.
31 At [7].
32 At [7].
Conclusion
[51] I find that Waka Kotahi is entitled to its costs as sought for the reasons set out above in terms of the schedule filed, that is on a 3B basis for all steps apart from those for “preparation of affidavits, list of issues or authorities and agreeing common bundle”, for which a 3C allocation is allowed. In addition, second counsel is certified. The disbursements are reasonable in the circumstances on their face. They have not been contested in any detail as to the calculations or the level of fees charged by the experts. The expert evidence was required in order to respond to Movement’s evidence and the detailed criticisms of the tools and approach that Waka Kotahi took to the preparation and decision-making surrounding the NLTP.
Grice J
Solicitors:
Rout Milner Fitchett, Nelson Sally Gepp Barrister, Nelson Chapman Tripp, Wellington Crown Law, Wellington
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