New Zealand Animal Law Association v Attorney-General
[2022] NZHC 2192
•30 August 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-360
[2022] NZHC 2192
BETWEEN THE NEW ZEALAND ANIMAL LAW ASSOCIATION
First Applicant
SAVE ANIMALS FROM EXPLOITATION
Second ApplicantAND
THE ATTORNEY-GENERAL
First Respondent
THE NATIONAL ANIMAL WELFARE ADVISORY COMMITTEE
Second Respondent
THE NEW ZEALAND RODEO COWBOYS ASSOCIATION INCORPORATED
Third Respondent
On the papers: Counsel:
V L Heine QC, S M Bisley, E L Bennett and B H Woodhouse for Applicants
K G Stephen, R A Elvin and H L S Bergin for First Respondent R L Roff for Second Respondent
J V Ormsby and J A Higby for Third Respondent
Judgment:
30 August 2022
JUDGMENT OF CHURCHMAN J
[Costs]
THE NEW ZEALAND ANIMAL LAW ASSOCIATION v THE ATTORNEY-GENERAL (COSTS) [2022] NZHC 2192 [30 August 2022]
Introduction
[1] On 29 July 2022, I dismissed an application for judicial review of the Minister for Agriculture’s decision to issue the Code of Welfare: Rodeos, pursuant to the Animal Welfare Act 1999.1
[2] At [74] of that judgment, I invited the parties to settle costs. In the absence of agreement, the respondents were to file memoranda, to which the applicants were to reply to, within 10 days. Those memoranda have been filed.
Positions of the parties
Respondents
[3] The Attorney-General does not seek costs. Neither does the National Animal Welfare Advisory Committee (NAWAC). The third respondent, the New Zealand Rodeo Cowboys Association Incorporated (NZRCA), seeks costs.
[4] NZRCA submits that costs should follow the event, and reflect the complexity and significance of the proceedings.2 NZRCA submits that the applicants’ pleadings contested the lawfulness of rodeo practises, that this was “unnecessary and misguided”, and warrants the application of increased costs principles.
[5] NZRCA alleges that the applicants directly attacked the lawfulness of rodeo, and that had they not done so, NZRCA would not have participated in the proceedings. They thereby seek to establish that the applicants created a situation in which they were forced to incur costs through their need to participate in the hearing. They submit that they did not engage in the process unnecessarily, but as a consequence of the applicants’ attack on the lawfulness of rodeo practices.
[6] NZRCA accepts that the applicants are charitable entities but submits that this should not excuse them from the consequences what they describe as filing unnecessary or impermissible pleadings. They submit that they were put to the cost
1 New Zealand Animal Law Association v Attorney-General [2022] NZHC 1844.
2 High Court Rules 2016, rr 14.2(a) and 14.2(b).
of preparing evidence in reply in relation to arguments that were not pursued at hearing.
[7]NZRCA seeks a total award of $21,565.22, including disbursements.
Applicants
[8] The applicants submit that costs in these proceedings should lie where they fall, on the basis that:
(a)there is no dispute that an error was made when the Rodeo Code was ‘re-issued’ in October 2018;
(b)the proceedings were brought in the public interest by two charitable organisations who acted reasonably in the conduct of the proceedings; and
(c)it was not necessary for the third respondent to join the proceeding in order to protect its interest in rodeo.
[9] The applicants submit that their partial success on the ground of procedural error weighs in favour of an exercise of the Court’s discretion to let costs lie where they fall. They submit that the proceeding was not an attack on rodeo, and that they did not adduce evidence on the impact of rodeo on animals. They submit that it was the third respondent’s decision to lead extensive evidence on the impact of rodeo, when that point was not in issue.
[10] Counsel for the applicants also submit that r 14.7(e) applies, so that the public interest element of the proceedings means that costs should lie where they fall. They submit that the attendance of four counsel at hearing is not relevant to costs, as the proceedings were conducted entirely pro bono.
[11] Finally, counsel for the applicants submit that the third respondent was not named in the original statement of claim, and that it was not asked nor required to join
the proceedings. Counsel submit that the third respondent unnecessarily applied for joinder, thereby creating the liability for its own costs.
Analysis
[12] The ordinary principle is that in the absence of some reason to the contrary, costs follow the event.3 Costs in ordinary proceedings in the High Court are categorised on a 2B basis. That is the appropriate categorisation for the present case.
[13] There are two issues on this costs application, firstly, whether the third respondents were justified in seeking to join the proceedings, and if so, whether the conduct of the parties or the nature of the proceedings justify any departure from ordinary costs principles.
Joining the proceeding
[14] The NZRCA is an incorporated society with the purpose of administering rodeo fixtures and promoting the practise of rodeo activities within New Zealand. NZRCA is the representative body for rodeo in New Zealand. On 13 September 2021, the NZRCA made an application to be joined as a party to the proceedings. The application for joinder was made on the grounds that the proceedings were likely to impact their interests, and that the other parties to the proceedings would be unable to adequately represent those interests.
[15] The application for joinder was initially opposed by the applicants on the basis that it would increase hearing time, costs, and delay the resolution of the proceedings. It was not opposed by the Attorney-General or NAWAC. On 29 October 2021, counsel for the applicants and counsel for NZRCA filed a joint memorandum whereby the applicants consented to NZRCA being joined as a party.
[16] The applicants amended statement of claim particularised the third ground of review in the following passage:
3 High Court Rules 2016, r 14.2(1)(a).
70.In exercising their statutory powers of decision in relation to the 2018 Code the respondents failed to promote and/or frustrated the purpose for which those powers were conferred. In particular:
(a)the practice of rodeo is undertaken for the purposes only of entertainment;
(b)the rodeo practices result in the animals concerned experiencing;
(i)unnecessary or unreasonable pain or distress; and
(ii)wilful or reckless ill-treatment;
(c)the minimum standards in the 2018 Code are not sufficient to prevent the animals concerned from experiencing unnecessary or unreasonable pain or distress, or ill-treatment; and
(d)the effect of the 2018 Code is to:
(i)permit conduct which does not fully meet the section 10 obligation or the section 29 requirement; and
(ii)provide a defence to conduct which, but for the 2018 Code, would be an offence under section 12(a) (failure to comply with section 10) and/or sections 28 to 29 (ill-treatment).
71.The issuing of the Code by the Minister was accordingly for an improper purpose and/or ultra vires the Act.
[17] This ground of review, while not fully pursued at the hearing, alleged that the 2018 Rodeo Code authorised practises that were substantively unlawful, and therefore that its issue was ultra vires, or in pursuit of an improper purpose. In those circumstances, it was appropriate for NZRCA as a representative body, to seek joinder to the proceedings. Allegations as to the lawfulness of their primary activities directly affect their rights and interests. Such allegations were included in the applicants’ pleadings, and were the sole focus of the submissions filed by NZRCA. Additionally, although the applicants initially opposed the application for joinder, it was ultimately granted on the basis of consensus as between the parties. It is not appropriate now for the applicants to allege that the joinder of NZRCA was unnecessary.
Reduction in costs
The applicable factors in the present case are:
(a)the applicants were to some extent successful in establishing that there was a procedural error in the issue of the 2018 Rodeo Code;
(b)there is a public interest factor to the proceedings;
(c)the applicants are charitable organisations who acted reasonably in the course of the proceedings, and were not motivated by personal gain;
(d)the applicants’ pleadings were as such to warrant an application for joinder by NZRCA;
(e)NZRCA is a not-for-profit organisation itself; and
(f)the first and second respondents have not sought costs.
[19] It was agreed between the parties that there was a procedural issue in the issuing of the 2018 Rodeo Code. In that respect, the applicants could have been considered to have had partial success. However, as outlined at [50] of the judgment, that finding was based on the same reasoning as Cull J in the Pigs case.4 Therefore, the applicants did no more than establish that an accepted principle was applicable in a similar (although not identical) case. This was not a situation in which a successful party (being the respondents) failed in relation to a cause, action or issue which significantly increased the costs of the party opposing costs (the applicants). What is required is that the costs of the party opposing costs have been significantly increased by having to address ultimately unsuccessful arguments.5 In my view, r 14.7(d) has no relevance to the determination of costs in these proceedings.
[20] The public interest aspect of these proceedings was in the form of a challenge to executive action by a non-governmental organisation. Such cases justify a reduction in costs so that public interest litigation is not discouraged by the possibility of significant awards of costs, other than where an application lacks merit.6 These proceedings were not brought by the applicants for any apparent personal gain.
4 See New Zealand Animal Law Association v Attorney-General [2020] NZHC 3009.
5 Middeldorp v Avondale Jockey Club Incorporated [2019] NZHC 1447 at [49].
6 Greenpeace New Zealand Inc v Minister of Health HC Wellington CP 85-99, 7 May 1999 at 18.
Counsel for the applicants appeared on a pro bono basis. Whether proceedings were brought in pursuit of personal gain is a relevant factor to be considered when assessing whether or not proceedings were brought in the public interest.7
[21] The courts must be wary of the impact of costs on access to justice in respect of public interest litigation, as parties that bring such litigation in a responsible way have been described by the Court of Appeal as “watchdogs of the public interest”.8 The Supreme Court has also held that where a public interest litigant has commenced proceedings with no prospect of personal gain, this is a relevant factor in determining costs.9 There was genuine public interest in the present litigation, and the applicants acted reasonably throughout its course. A reduction in costs is therefore justified on the basis of the principles outlined above.
[22] However, any reduction must be balanced against the fact that NZRCA is also a not-for-profit organisation, drawn into the process of litigation on the basis that the applicants’ pleadings engaged their sole purpose. In my view, an appropriate reduction is 30 per cent, representing the need to account for the public interest aspect of the proceedings, while also acknowledging the nature of NZRCA’s participation in them.
[23] The fact that the applicants had four counsel present at the hearing is entirely irrelevant to the costs order sought by the third respondent. Had the applicants been successful, it is unlikely that they would have been awarded costs for four counsel. In any case, the presence of four counsel at hearing cannot have increased the costs of the third respondent.
[24] NZRCA have claimed costs for second counsel, without providing reasons as to why this is appropriate in proceedings categorized on a 2B basis. The presumption is that costs are provided only for sole counsel, unless there is good reason to award costs for second counsel.10 In the absence of reasons inviting the Court to award costs for second counsel, it is not appropriate for such costs to be awarded.
7 Save Kapiti Inc v New Zealand Transport Agency [2013] NZHC 3314 at [19].
8 Te Whare O te Kaitiaka Ngahere Inc Society v West Coast Regional Council [2015] NZCA 356 at [27].
9 Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZSC 167.
10 Northwest Developments Ltd v Zhang [2019] NZHC 2146 at [23].
Result
[25] The applicants must pay costs to the third respondent in the sum of $12,222.13, inclusive of usual disbursements. This figure has been calculated by taking the third respondent’s total claim of $21,565.22, subtracting the costs of second counsel ($1,195), and then discounting by 30 per cent.
Churchman J
Solicitors:
Buddle Findlay, Wellington for Applicants Crown Law, Wellington for First Respondent
Wakefields Lawyers Limited, Wellington for Second Respondent Tavendale and Partners Ltd, Christchurch for Third Respondent
Counsel:
V L Heine QC S M Bisley
R L Roff
J V Ormsby
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