New Zealand Greyhound Racing Association (Incorporated) v Minister for Racing

[2013] NZHC 827

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2070 [2013] NZHC 827

UNDER  the Judicature Amendment Act 1972 Part 1

IN THE MATTER OF     the Racing Act 2003

BETWEEN  NEW ZEALAND GREYHOUND RACING ASSOCIATION (INCORPORATED)

Plaintiff

ANDTHE MINISTER FOR RACING Defendant

Hearing:         On the papers

Counsel:         H Cull QC and N Levy for the Plaintiff

K Stephen and A Jacobs for the Defendant

Judgment:      19 April 2013

JUDGMENT OF MALLON J (Costs)

[1]      I refer to my judgment delivered on 19 February 2013.[1]   I have now received submissions  on  costs.     The  defendant  complied  with  my  direction  that  the submissions be confined to three pages.[2]   The plaintiff, without explanation, did not. It  is  to  be remembered  that  the costs  regime is  intended  to  be predictable and expeditious.[3]     In the ordinary course brief submissions on costs confined to the

essential points are appropriate under that regime.

NEW ZEALAND GREYHOUND RACING ASSOCIATION (INCORPORATED) v THE MINISTER FOR RACING HC WN CIV-2012-485-2070 [19 April 2013]

[1] New Zealand Greyhound Racing Association (Inc) v Minister for Racing [2013] NZHC 245.

[2] At [76].

[3] High Court Rules, r 14.2(g).

[2]      The essential point is that the parties have not been able to agree on costs because the defendant takes the view that category 2B costs are appropriate[4] whereas the plaintiff considers indemnity or increased costs should be ordered.[5]

[4] Rule 14.3.

[5] Rule 14.6.

[3]      Although this case involved an issue of relevance to parties (the thoroughbred code and the harness code) other than those represented in the proceeding, that does not warrant either indemnity or increased costs in my view.[6]    The greyhound code brought  the  proceeding  because  it  had  an  interest  in  removing  the  chairperson because of his links with the thoroughbred code.  That makes the case more similar to Whangamata Marina Society Inc v Attorney-General[7]  than New Zealand Maori Council v Attorney-General (No 3)[8]  and Auckland Council for Civil Liberties v Attorney-General.[9]    The significance of the proceeding to the greyhound code, together with its wider significance for future appointments, is better reflected by the category to which the proceeding is appropriately assigned.

[6] The Court may order a party to pay increased costs if the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to

bring it in their interests: High Court Rules, r 14.6(3)(c). The court may order indemnity costs if some other reason exists which justifies it: r 14.6(4)(f).

[7] Whangamata Marina Society Inc v Attorney-General (2006) 18 PRNZ 565 (HC) at [16].

[8] New Zealand Maori Council v Attorney-General (No 3) HC Wellington CP942/88, 28 April 1995.

[9] Auckland Council for Civil Liberties v Attorney-General HC Auckland CP452/95, 10 November 1993.

[4]      Nor  do  I  consider  that  indemnity  or  increased  costs  should  be  ordered because the defendant could have avoided the proceeding by accepting the plaintiff’s view and legal advice that the appointed chairperson was not independent.[10]    The defendant obtained advice before making the appointment.  He was not required to accept the plaintiff’s advice when he had advice that differed and when he was of the view,  after  an  appropriate  process  searching  for  candidates,  that  his  proposed

appointment was the best one and complied with the statutory criteria as he was

advised it to be.

[10] The court may order a party to pay increased costs if the party opposing costs has contributed unnecessarily to the time or expense of the proceeding by pursuing an argument that lacks merit or failing to accept a legal argument: High Court Rules, r 14.6(3)(b).

[5]      I consider that category 3 is appropriate because I accept that the significance of the proceeding to the greyhound code was such that it was appropriately represented both by a Queen’s Counsel and an experienced second counsel.  Band B is appropriate because the steps involved in the proceeding were such that a normal amount of time for those steps would be reasonable.   There is to be an allowance for second counsel.

[6]      Accordingly, category 3B costs are awarded.

Mallon J

Solicitors:

Kathy Ertel & Co, Wellington

Crown Law, Wellington