Ngai Tai Ki Tamaki Tribal Trust v Minister of Conservation

[2017] NZHC 872

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-943 [2017] NZHC 872

IN THE MATTER

of an application for judicial review under

the Judicature Amendment Act 1972

BETWEEN

NGAI TAI KI TAMAKI TRIBAL TRUST Applicant

AND

MINISTER OF CONSERVATION First Respondent

FULLERS GROUP LIMITED Second Respondent

MOTUTAPU ISLAND RESTORATION TRUST

Third Respondent

NGATI PAOA IWI TRUST Intervener

Hearing:	On the Papers
Appearances:	P J Andrew and R A Siciliano for Applicant C D Tyson and E P Chapple for First Respondent A C Pilditch for Second Respondent S J McK Mount and A R Longdill for Third Respondent R B Enright for Intervener
Judgment:	4 May 2017

COSTS JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on

4 May 2017 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

NGAI TAI KI TAMAKI TRIBAL TRUST v MINISTER OF CONSERVATION [2017] NZHC 872 [4 May 2017]

[1]      This  case  was  judicial  review  of  two  decisions  by  the  Minister  of Conservation  (by  delegates),  granting  concessions  on  Rangitoto  and  Motutapu Islands in favour of Fullers, the ferry company and Motutapu Island Restoration Trust.

[2]      The question was whether or not the decision makers erred in law when discharging the obligation to give effect to the principles of the Treaty of Waitangi as required by s 4 of the Conservation Act.

[3]      I found that the Department of Conservation (DoC) over-stated the law when saying there is no basis for preferential entitlement and that economic benefits were not a relevant consideration.  I found, as a matter of fact that the DoC decisions did give effect to the principles of the Treaty of Waitangi.   I reserved the question of costs.

[4]      I have now received submissions on costs, all of which are succinct, yet well researched and thought through.  The first respondent, the Minister of Conservation, does not seek costs.  Fullers Group Ltd, the second respondent, do seek costs on the basis that costs should follow the event and they seek the sum of $28,767 calculated under Schedule 3 of the High Court Rules.  Motutapu Island Restoration Trust seek costs similarly calculated in the sum of $29,659.  The intervener, Ngati Paoa, does not seek to be heard in relation to costs issues.

[5]      This was responsible litigation brought by the applicant.   It was partially successful.    Both  Fullers  and  the  Motutapu  Island  Restoration  Trust  had  good reasons for responding, and Ngati Paoa for intervening.

[6]      Fullers and the Motutapu Island  Restoration Trust contend that this case was brought by the applicant to pursue its own economic opportunities.  It was, but in my opinion this was nonetheless public interest litigation.  In the case of the Motutapu Island Restoration Trust I have considered whether or not it would be a burden not to recover costs.   I note the intent is to spend any recovery on the Motutapu Island restoration.  That suggests that the Trust’s finances have not been seriously burdened

by this litigation.  I also consider the outcome of the judgment is of benefit to both

Fullers and Motutapu Island Restoration Trust.

[7]      Overall I think the dominating reason is that all the parties to this litigation, including the intervener, obtained  benefits from the High Court judgment, on a matter of public interest, giving at the least some clarity to their long-term interests, which is beneficial to each of them as a result of the litigation, at a relatively low cost.  For these reasons I think that each party to the litigation should bear their own costs.

[8]      There will be no order for costs.

Solicitors:

McCaw Lewis, Hamilton

Crown Law, Wellington

Skinner Law Limited, Wellington

Cook Morris Quinn, Auckland