Ngati Tama Ki Te Waipounamu Trust v Tasman District Council

[2017] NZHC 2010

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2016-442-31 [2017] NZHC 2010

UNDER

the Judicature Amendment Act 1972

IN THE MATTER

of a decision made pursuant to section
125(1A)(b) of the Resource Management
Act 1991

BETWEEN

NGĀTI TAMA KI TE WAIPOUNAMU

TRUST Applicant

AND

TASMAN DISTRICT COUNCIL First Respondent

KAHURANGI VIRGIN WATERS LIMITED

Second Respondent

On the papers
Counsel:	C P Thomsen for First Respondent T J Castle for Second Respondent
Judgment:	22 August 2017

JUDGMENT OF THOMAS J

Introduction

[1]      Ngāti Tama ki Te Waipounamu Trust (Ngāti Tama) and the Tasman District Council  (the  Council)  have  agreed  costs  of  $37,564.26  following  Ngāti Tama’s successful judicial review of the Council’s decision to grant an extension of a water

take recourse consent.1

1      Ngāti Tama ki Te Waipounamu Trust v Tasman District Council [2017] NZHC 1081.

NGĀTI TAMA KI TE WAIPOUNAMU TRUST v TASMAN DISTRICT COUNCIL [2017] NZHC 2010 [22 August 2017]

[2]      The Council, which was the first respondent in the proceedings, now seeks directions from the Court as to the measure of contribution from Kahurangi Virgin Waters Ltd (KVW), the second respondent.  The Council has suggested that KVW pay 30 per cent of the agreed quantum, being $11,269.28.  KVW considers it should not be required to make any contribution.

Submissions

[3]      The Council submits KVW is an unsuccessful party to the proceedings and is therefore jointly and severally liable for costs.2     Drawing on Beach Road Preservation Society Inc v Whangarei District Council,3  the Council submits KVW is liable because it elected to actively participate in the proceedings, and took substantive steps to defend a position which was found to be unjustified.  If KVW

wanted to avoid costs, it ought to have instead abided the Court’s decision or filed a notice of appearance preserving its position.  There is, in the Council’s submission, no reason to depart from the conventional approach to costs – that unsuccessful parties ought to pay costs and are jointly and severally liable.

[4]      KVW submits it would be wholly inappropriate and unreasonable for it to contribute to Ngāti Tama’s costs which the Council has agreed to meet.   KVW describes  its  involvement  as  “calling evidence  to  identify the very unusual  and special circumstances” in which it found itself in relation to the proceeding.   The evidence showed KVW was a joint venture between Pākehā and Māori, supported by two of the three iwi who have interests in Te Waikoropupū Springs.   KVW acted sensitively  to  cultural  issues,  was  entitled  to  act  on  the  basis  of  the  Council’s decision to extend the consent, and was not the party in error.  The evidence was not controversial, nor was it contentious.    As such, it was not strictly an unsuccessful party, and to award costs against it would be to penalise it for attempting to assist the Court.   The circumstances justify an award against the Council only, it being the party which made the error found in the substantive decision.

[5]      In reply, the Council submits KVW was an unsuccessful party.  It refers to

KVW’s statement of defence, which denied Ngāti Tama’s allegation the decision was

2      High Court Rules 2016, r 14.14.

incorrect, and to a similar statement in the evidence of Mr Toia for KVW.   The evidence  was  called  to  assist  the  Court  and  to  support  KVW’s  position  in  its statement of defence.   Because KVW had an interest in the outcome and took a position which was ultimately found to be incorrect, it is appropriate for KVW to contribute to Ngāti Tama’s costs.

Relevant law

[6]      Costs are at the discretion of the Court, but the High Court Rules 2016 set out the  principles  applying  to  such  determinations.     Generally,  costs  should  be predictable and expeditious, they should follow the event, and parties ordered to pay costs are jointly and severally liable.4

Case law

[7]      In  Beach  Road  Preservation  Society  Inc,  Chambers  J  determined  costs between two unsuccessful respondents: the council and a resource consent applicant, Mr Wilkinson.5   The respondents raised various objections with respect to costs, one of which was that Mr Wilkinson ought not to be liable because the council was responsible for the error on which the judicial review turned.  Chambers J rejected that submission and ordered costs, jointly and severally between the two:

[19]     Mr Bell submitted that the council alone should have to meet any costs order. He made that submission on three bases.   First, the error in granting the resource consent was the council’s error, not Mr Wilkinson’s.

…

…

[21]     With respect, both sets of submissions are off point.   On a costs application we are not concerned with how the original decision under attack came to be made.  What we are concerned with is the litigation itself.  The society brought a claim correctly identifying the council and Mr Wilkinson as respondents.  On being served with the notice of proceeding and statement of  claim,  the  council  and  Mr Wilkinson  had  an  election:  to  defend  the proceeding or not.  Both chose to defend the proceeding.  I concluded that the proceeding was well brought.   The society is entitled to costs.   Both respondents must share responsibility for those costs because, and only because, each decided to defend the proceeding, wrongly, as it turned out. That is why they must pay costs to the society.  It is irrelevant how the land

4      High Court Rules 2016, rr 14.2 and 14.14.

came to be zoned as it was or how the resource consent decision came to be made.   Parties pay costs because they have elected to bring or defend proceedings and have adopted a stance in those proceedings which a court has found to be unjustified.

[8]      Similar circumstances arose in Kawarau Jet Services Holdings Ltd, where the council’s liability was capped at 20 per cent.6    In that case, the council abided the Court’s decision, but the second defendant, a private entity, sought to resist the judicial review application.  The council was responsible for the error (a decision to process a resource consent on a non-notified basis) which led to a successful review. After citing the passage from Beach Road above, French J stated:

[18]      In so far as these comments could be interpreted as meaning that a person who abides the decision of the Court can never be liable for any costs,  I  must  respectfully  disagree.     That  would  be  too  absolute  a proposition.  Ultimately, the task of the Court is to make an assessment of overall justice as between the particular parties.   On the facts of this case, where the Council made a very fundamental and serious error which necessitated the issuing of proceedings, I consider the council should make a contribution.      However,   because   it   responsibly   did   not   defend   the proceeding, its liability should be limited to 20% of the costs and disbursements, excluding the costs of the experts.

[9]      Chisholm J took a different approach in Barrett v Wellington City Council.7

In that case, the council, which had resisted the review, was primarily responsible for the established error and the other defendants were in some senses as “innocent” as the plaintiff.  The council was ordered to pay not only the costs of the plaintiff, but also the other defendants because it was up to the council to comply with notification provisions:

[5]       … As I see it, responsibility for that outcome must rest squarely with the first defendant. The second/third defendants were parties to the review process because they were parties affected, not because they carried responsibility in some way or other for the Council’s decision not to notify.

…

[9]       … I am not persuaded that this is a situation where costs should rest where they fall.   My reasons can be summarised.   First, the fact that the second/third defendants sought to uphold the Council’s decision should not count against them.   Given their expenditure on the complex running into many millions of dollars, it is not at all surprising that they attempted to support the Council’s decision.   Secondly, while the first defendant now

6      Kawarau Jet  Services Holdings Ltd  v  Queenstown Lakes District Council  HC Invercargill

CIV-2008-425-518, 19 May 2009.

7      Barrett v Wellington City Council HC Wellington CP 31/00, 25 July 2000.

claims that if it had been aware that it might have to pay the second/third defendants’ costs it would have more actively discouraged the second/third defendants from incurring significant costs; the reality was that it was always vulnerable to an order for costs in favour of the second/third defendants. Thirdly, I do not accept that shortcomings in the developer’s assessment of effects  has  any  direct  bearing  on  the  Council’s  decision  not  to  notify. Fourthly,  the  fact  that  the  second  defendant  might  be  an  experienced property manager cannot alter the fact that it was the Council’s decision which gave rise to this proceeding.  Fifthly, the first defendant’s claim that the  second/third  defendants  benefited  from  the  Court’s  judgment  (by avoiding public scrutiny of the project) needs to be balanced against the allegation by the second/third defendants that if they had been aware of the problem they would simply have repositioned the eastern wing to ensure that it was a permitted activity.

[10]     Preferring the approach in Kawarau, Gendall J made essentially the same decision in Sutton v Canterbury Regional Council.8   In that case, the council chose to abide the decision of the Court whereas the second respondent chose to resist the judicial review application.  Because the second respondent was the real protagonist, it was unjust to make the council jointly and severally liable.   The council was nevertheless liable for 20 per cent of the applicant’s costs (including disbursements

this time) because it was the council’s error which led to the success of the review.

[11]     In summary, case law indicates a variance in application of the High Court Rules with respect to costs between unsuccessful parties.   This variance can be explained by the different circumstances in which each claim for costs is made.  The prima facie rule is that costs follow the event, and unsuccessful parties are jointly and severally liable.  Nevertheless, to paraphrase French J, the ultimate task of the Court is to make an assessment of overall justice as between the particular parties, in the particular circumstances.  Relevant to this assessment is, inter alia, whether and in what manner the parties participated in the proceedings, the manner in which one party was in error, and what measure of reliance was placed on the error by the other party.

Analysis

[12]   Applying those principles to the present circumstances, KVW was an unsuccessful respondent in the proceedings.  It chose to oppose the application for

judicial  review  when  alternatives  such  as  abiding  the  Court’s  decision  were

8      Sutton v Canterbury Regional Council [2015] NZHC 1000.

available.  Assistance to the Court is always welcome but may be provided without actively defending the proceedings.

[13]     The fact the error was the Council’s would point towards an award for costs against the Council even if the Council had abided the decision of the Court, but that is not the case here.   It might point away from costs against KVW if KVW had abided the decision.  As Chambers J explained, however, the Court is not primarily concerned with the exact manner in which the error occurred, but the litigation itself. KVW actively participated and cannot escape costs merely because the Council was at fault.

[14]     KVW relied on the Council’s decision but not to the extent as to justify escaping liability for costs in proceedings where KVW actively defended review of the decision.

[15]     Overall justice in this matter requires some contribution of costs from KVW. This is not to penalise KVW for attempting to defend its position but to recognise that, in relatively ordinary circumstances, an unsuccessful party ought to carry some of the burden of the costs incurred.

Outcome

[16]     I agree with the Council’s approach and order KVW to pay 30 per cent of

Ngāti Tama’s costs.

Thomas J

Solicitors:

Fletcher Vautier Moore, Richmond for First Respondent

Pitt and More, Nelson for Second Respondent