Norman v T�puna Maunga o T�maki Makaurau Authority
[2021] NZHC 944
•29 April 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-002682
[2021] NZHC 944
UNDER the Judicial Review Procedure Act 2016 BETWEEN
AVERIL ROSEMARY NORMAN and WARWICK BRUCE NORMAN
Applicants
AND
TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY
First Respondent
AUCKLAND COUNCIL
Second Respondent
On the Papers Counsel:
R J Hollyman QC, J W H Little and J K Grimmer for Applicants P T Beverley and R A Balasingam for First Respondent
P M S McNamara and S J Mitchell for Second Respondent
Judgment:
29 April 2021
JUDGMENT OF GWYN J
(Costs)
This judgment was delivered by me on 29 April 2021 3.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
NORMAN v TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY (Costs) [2021] NZHC 944 [29
April 2021]
Introduction
[1] In my judgment dated 22 December 2020, I dismissed the application by Mr and Mrs Norman (the applicants) for judicial review against the Tūpuna Maunga o Tāmaki Makaurau Authority (the Maunga Authority) and Auckland Council (the Council).1
[2] The Maunga Authority and the Council now apply for costs on a 2B basis. The applicants argue costs should lie where they fall.
Background
[3] The applicants challenged the decision of the Maunga Authority to remove 345 exotic trees from Ōwairaka/Mt Albert (Ōwairaka) and to replant 13,000 native plants (the decision). The applicants also challenged the actions of the Council, to the extent the Council is to implement the challenged decision and, separately, the Council’s decision that it was not necessary to publicly notify or give limited notification of the application to carry out the tree felling and planting work under ss 95A to 95E of the Resource Management Act 1991 (RMA). They sought an order quashing the decision to fell the exotic trees, a declaration that the Maunga Authority acted unlawfully in making that decision, and an order injuncting the Maunga Authority from taking any steps to implement the decision.
[4]The applicants advanced four grounds of review:
(a)The decision did not comply with ss 42 and 17 of the Reserves Act 1977.
(b)There was an obligation on the Maunga Authority to consult regarding the decision to fell the 345 exotic trees and it failed to do so.
(c)The Council could not lawfully follow a direction from the Maunga Authority to fell the trees, given that the decision to fell was unlawful in terms of either the first or second ground of review.
1 Norman v Tūpuna Maunga O Tāmaki Makaurau Authority [2020] NZHC 3425.
(d)The Council erred in terms of the RMA in deciding not to require notification of the resource consent application to fell the exotic trees to either the public or to users of the reserve.
[5]I found against the applicants on all grounds of review.
The law
[6] Rule 14.1 of the High Court Rules 2016 (the Rules) provides that the Court has discretion in awarding costs. However, that discretion is not unfettered, and the Supreme Court has held that the overall structure of the costs regime in the Rules means “there is a strong implication that a Court is to apply the regime in the absence of some reason to the contrary”.2
[7] Rule 14.2(1)(a) provides that “the party who fails with respect to a proceeding … should pay costs to the party who succeeds”. This reflects the “longstanding principle that, unless there are exceptional reasons, costs should follow the result.”3 Rule 14.2(1)(g) also provides that “so far as possible the determination of costs should be predictable and expeditious.”
[8] Rule 14.2(1)(b) provides that an award of costs should reflect the complexity and significance of the proceeding.
[9] Rule 14.7(e) provides that the Court may refuse to make an order for costs, or may reduce the costs otherwise payable under the Rules, if “the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding”.
[10]Rule 14.15 of Rules provides that:
The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—
(a)several defendants defended a proceeding separately; and
2 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7]; citing Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27].
3 Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].
(b)it appears to the court that all or some of them could have joined in their defence.
Submissions
The respondents
[11] The Maunga Authority seeks costs on a 2B basis of $41,825 and disbursements of $31,926.65, totalling $73,751.65. The Council seeks costs on a 2B basis of $37,045 and disbursements of $102.55, totalling $37,147.55. The respondents both submitted costs should follow the result, and they are therefore entitled to an award of costs because they successfully defended the application for judicial review. Both respondents submitted:
(a)Given the extensive range of matters raised by the applicants, they were required to present a substantial case, including adducing extensive evidence. On that basis, each respondent submitted that allowance should be made for the appearance of second counsel, and costs for written legal submissions under step 36 of sch 3 of the Rules are appropriate.
(b)There are no grounds for reducing the costs on the grounds of public interest.
[12] The Council also submitted that it is in the public interest to recover ratepayer funds, given all grounds of review were dismissed, noting that the consequence of reducing costs payable is that the burden falls on ratepayers.4
The applicants
[13] The applicants submitted costs should lie where they fall, and costs should be refused under r 14.7(e) of the Rules because the proceeding concerned a matter of public interest and the applicants acted reasonably.
4 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1527 at [10].
[14] In the alternative, the applicants submitted that if a costs order is made against them, then a substantial reduction in scale costs (50–75 per cent) should be made pursuant to the public interest principle in r 14.7(e) of the Rules. The applicants also challenged specific components of the respondents’ costs claims, and submitted:
(a)there should be a 25 per cent reduction for the cost of written submissions, due to the overlap in the respondents’ cases; and.
(b)three specific disbursements, discussed in more detail below, should not be allowed.5
[15] The applicants also noted they were successful in their interlocutory application to amend the statement of claim, and no costs award was made at the time. The Maunga Authority opposed the application, but the Council abided. The applicants submitted that if they are to pay costs to the Maunga Authority, there should be an offset from the Maunga Authority’s award to reflect this. Counsel for the Maunga Authority have since filed a memorandum dated 16 March 2021, advising that the Maunga Authority has agreed to pay costs to the applicants on a 2B basis in respect of the interim orders proceeding. I therefore do not consider this issue in this judgment.
Reduction or refusal of costs, due to public interest
[16] On the basis of the general principle in r 14.2(1)(a) the respondents will be entitled to an order for costs, unless I am satisfied that in terms of r 14.7(e) the proceeding concerned a matter of public interest and the applicants acted reasonably in the conduct of the proceeding. The scope of the public interest exception has been considered in a number of cases, some of which are set out in Taylor v District Court at North Shore.6 In that case, White J summarised the requirement that the proceeding must concern a matter of genuine public interest, have merit, and be of general importance beyond the interests of the particular unsuccessful litigant.7
5 See below at [33]-[35].
6 Taylor v District Court at North Shore (No. 2) HC Auckland CIV-2009-404-002350, 13 October 2010.
7 At [9].
[17] I accept that the applicants did not bring the proceedings for any financial gain. Mr Norman’s evidence is that to date he and Mrs Norman have borne all of the legal costs of the proceeding. The applicants say they brought the proceeding as “concerned Aucklanders”; while the decision by the Maunga Authority to fell the non-native trees on Ōwairaka would have an impact on the applicants in terms of their personal enjoyment of the reserve, they were concerned too about what Mr Norman refers to as “a loss to all users who enjoy the reserve”. Mr Norman notes that they were also concerned about what appeared to be a lack of consultation about the decision to fell the trees. He says “… the [Maunga Authority] later accepted that it had not consulted on the Decision.”8 Mr Norman says “All of these concerns seemed to have been shared by many other members of the public.”
[18] The applicants do not represent a defined and organised group of residents as in many other cases in which r 14.7(e) has been considered. Some other individuals did file affidavits in the substantive proceeding in support of the applicants’ position.9 There is an organised community group called Honour the Maunga who have campaigned against the Maunga Authority’s decision to fell the trees. Ms Anna Radford, who provided an affidavit in support of the applicants’ case, was at relevant times the leader and spokesperson of Honour the Maunga, but that group has had no role in the proceeding. The applicants’ submissions at the substantive hearing distinguished the applicants’ views from some of the views expressed by Honour the Maunga.
[19] The Council submitted that the applicants do not represent a wider public interest, as opposed to the views of some members of the public. It noted that other members of the public might favour the proposal of the Maunga Authority. Both the Council and the Maunga Authority pointed to the affidavit evidence filed by representatives of a number of community organisations in support of the Maunga Authority’s position in the substantive proceeding: the Independent Māori Statutory Board, the Royal Forest & Bird Society, the Tree Council/Tiakina Tākau, Generation Zero, and Friends of Maungawhau. The Maunga Authority said that, in fact, it is the
8 In my judgment I found there was no obligation on the Maunga Authority to consult: Norman v Tūpuna Maunga O Tāmaki Makaurau Authority, above n 1, at [150]-[152].
9 Including Sir Harold Marshall, Anna Radford, Mary Tallon, and Mary Inomata.
Maunga Authority that represents the public interest. In addition to the support from a number of significant community organisations, it pointed also to the fact that half of the Maunga Authority’s members are appointed by Ngā Mana Whenua o Tāmaki Makaurau and half by the Council.
[20] It is not straightforward to define what amounts to a “matter of public interest”. The applicants pointed to a number of cases where unsuccessful litigants were acting in the public interest, and the Court therefore declined to make a costs award, or reduced a costs award by between 10–60 per cent.10 The applicants referred to parties who represent the interests of the community in litigation as watchdogs of the public interest.11
[21] On the other hand, in Evans v Clutha District Council, the plaintiff, who was an individual rather than a community group, had been unsuccessful in a judicial review challenging the decision of a local council to fell two trees on a public reserve.12 Justice Nation found that the plaintiff was representing the interests of a small group of named people who had demonstrated support for her view in the form of affidavits, and the issue of whether the two trees should be cut down was a matter of importance to them; however, there was nothing in the information put before the Court to indicate the issue was of the same importance to broad sections of the local community. Justice Nation therefore found r 14.7(e) did not apply.13
10 Save Kapiti Inc v New Zealand Transport Agency [2013] NZHC 3314; Friends of Marineland of New Zealand Inc v Napier City Council [2012] NZHC 1792; New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2013] NZCA 555; Agresearch Ltd v GE Free NZ in Food & the Environment Inc [2010] NZCA 89; Titahi Bay Residents Association Inc v Porirua City Council HC Wellington CIV-2007-485-1933, 18 October 2007; Coro Mainstreet (Inc) v Thames-Coromandel District Council, above n 4; New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513; New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 993; Aotearoa Water Action Inc v Canterbury Regional Council [2021] NZHC 48; Ngai Tai Ki Tamaki Tribal Trust v Minister of Conservation [2017] NZHC 872; Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167; Enterprise Miramar Peninsula Inc v Wellington City Council [2018] NZHC 1041; New Zealand Airline Pilots' Association Industrial Union of Workers Inc v Director of Civil Aviation [2016] NZHC 2409.
11 Ratepayers and Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746 (CA) at 750.
12 Evans v Clutha District Council [2019] NZHC 549.
13 At [8].
[22] On the facts of this case there is not a singular “public interest” and it is not clear to what extent the applicants can be said to be representative of a section of the public interest. In addition, I agree with the respondents that the proposal put forward by the Maunga Authority also reflects a strong public interest. While the subject matter is similar to Evans, where the public interest threshold was not met, I consider the present case can be distinguished given that other sections of the community (such as Honour the Maunga) sought the same outcome, and the large scale of the changes (the felling of 345 trees, compared to two trees). Overall, I am prepared to accept that there was an element of public interest in the applicants’ claim, although not as significant as the applicants assert.
[23] I turn then to consider whether the applicants acted reasonably in the conduct of the proceedings. While I declined to make any of the orders sought by the applicants, it cannot be said that the issues they raised were plainly wrong or completely without merit.14 In particular, issues concerning the interface between the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (Collective Redress Act) and the Reserves Act were novel and untested.15 As the applicants submitted, the Ōwairaka project is part of a broader ecological restoration project being undertaken by the Maunga Authority across the Tūpuna Maunga.16 The case on behalf of the applicants was carefully and thoroughly presented by counsel on their behalf. I find that the applicants did act reasonably in the conduct of the proceedings.
[24] Finally, in considering whether it is appropriate to refuse to make an order for costs against the applicants, or to reduce the costs otherwise payable, I turn to the potential impact on ratepayers. The Council submitted that it is in the public interest to recover ratepayer funds incurred in defending the applicants’ proceedings. It pointed to two cases in particular where this was a factor, and a discount of only 10 per cent was applied. In Coro Mainstreet v Thames-Coromandel District Council, Wylie J responded to a submission seeking that any award of costs to the District
14 See for example, Aotearoa Water Action Inc v Canterbury Regional Council, above n 10, at [53],
[55] and [57].
15 Enterprise Miramar Peninsula Inc v Wellington City Council, above n 10, at [30].
16 The Tūpuna Maunga referred to in the substantive judgment are the fourteen ancestral mountains transferred from Crown ownership to the 13 iwi and hapū of Ngā Mana Whenua o Tāmaki Makaurau (Nga Mana Whenua) under the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014.
Council be substantially discounted on the grounds of public interest, saying “the consequence of reducing costs to the first defendant is that the burden falls on its ratepayers.”17
[25] More recently, in Aotearoa Water Action Incorporated v Canterbury Regional Council, Nation J cited Coro Mainstreet and said that “the Court has, on occasions, considered it would be unfair to ratepayers generally to bear the burden of a reduction in an otherwise appropriate costs award.”18 Justice Nation also referred to Te Rangatiratanga O Ngati Rangitihi v Bay of Plenty Regional Council,19 Evans v Clutha District Council,20 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust,21 all cases where the High Court either declined to order a reduction in costs, or made only a small reduction, because the burden would fall on ratepayers. In Te Rangatiratanga Wylie J said:22
[10] Notwithstanding the public interest factor, in the circumstances of this case I am not persuaded that it would have been appropriate to decline awards of costs to the applicants and the respondent [the successful parties]. In the respondents’ case, were costs to be declined, they would simply fall on the general body of ratepayers. To my mind, that would hardly be fair.
[26] I accept the present case, which was reasonably advanced, can be distinguished from Coro Mainsreet and Aotearoa Water on other factors – primarily on the basis those claims lacked merit and were pursued for the plaintiff’s own agenda,23 or the plaintiffs displayed “obstinacy” or “blindness” to expert views.24 Nonetheless, in this case any reduction in the award of costs to which the Council would in the normal course be entitled must be met, instead, by Auckland Council ratepayers – that is a factor I must bear in mind.
[27] My conclusion that there was a “public interest” aspect to the applicants’ proceedings does not automatically immunise them from an award of costs. Although
17 Coro Mainstreet (Inc) v Thames-Coromandel District Council, above n 4, at [10].
18 Aotearoa Water Action Inc v Canterbury Regional Council, above n 10, at [44].
19 Te Rangatiratanga O Ngati Rangitihi v Bay of Plenty Regional Council HC Tauranga CIV-2010- 470-936, 17 February 2011.
20 Evans v Clutha District Council, above n 12.
21 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZHC 2665, [2018] NZRMA 162.
22 Te Rangatiratanga O Ngati Rangitihi v Bay of Plenty Regional Council, above n 19, at [10].
23 Aotearoa Water Action Inc v Canterbury Regional Council, above n 10, at [52]-[57].
24 Coro Mainstreet (Inc) v Thames-Coromandel District Council, above n 4, at [8]-[9].
Courts must be “wary about providing too great a disincentive to scrutiny on public interest matters”, as Simon France J said in Titahi Bay Residents’ Association Inc v Porirua City Council, the liability for costs “remains a legitimate incentive for ensuring that challenges have a sound basis and do not reflect, for example, a blindness to the fact that people can legitimately take different positions.”25 However, I think it appropriate to make some allowance for the extent to which the applicants did represent a public interest and acted reasonably in testing novel issues, while also having regard to the public interest that is represented by the Maunga Authority, and to the Council’s responsibility to ratepayers. In all of those circumstances, I conclude that a 15 per cent reduction in the costs that would otherwise have been awarded is appropriate.
Costs calculations
Second counsel
[28] I accept that costs properly fall in category 2, band B. The applicants’ claim involved four broad grounds of review.26 While the third ground turned on the outcome of the second ground, all of the first, second, and fourth grounds involved extensive and detailed sub-issues. As the Council’s submissions noted, the applicants raised over 28 separate points. Given the nature and complexity of the issues and the volume of evidential material that had to be addressed by the respondents, I certify second counsel for each of them.
Written legal submissions under step 36 of sch 3 of the Rules
[29] The respondents also seek costs for written submissions under step 36 of sch 3. While the applicants do not in principle oppose a claim for the costs of written submissions, they submitted the amount should be reduced by 25 per cent to account for overlap. The applicants said the Council filed extensive submissions on the Reserves Act and consultation grounds of review (which were brought against the Maunga Authority) and the Maunga Authority filed extensive submissions on the RMA (which were grounds brought against the Council).
25 Titahi Bay Residents’ Association Inc v Porirua City Council HC Wellington CIV-2007-485-1933, 18 October 2007 at [8].
26 Set out at [4] above.
[30] I am not persuaded that any such “overlap” was unnecessary. The respective roles of the Maunga Authority and the Council are not as discrete as the applicants’ submission might suggest. Consideration of the Maunga Authority’s roles, functions and decisions cannot always be separated from a consideration of the Council’s role. By way of example:
(a)Half the members of the Maunga Authority are appointed by Ngā Mana Whenua o Tāmaki Makaurau and half by the Council.27
(b)The decision to fell the non-native trees on Ōwairaka was made by Mr Nicholas Turoa on behalf of the Maunga Authority. Mr Turoa is the Tūpuna Maunga Manager for the Maunga Authority and also an employee of the Council.
(c)The Council has various roles under the Collective Redress Act, including to agree, with the Maunga Authority, an annual operational plan for the maunga;28 responsibility for the routine management of the maunga;29 and responsibility for the costs in relation to the maunga incurred by the Council in carrying out its functions.30 The Council is the body that will implement the challenged decision.
(d)The application for resource consent which was the subject of the fourth cause of action was made jointly by the Maunga Authority and the Council.
[31] The applicants also appear to suggest that any costs awarded for submissions might be discounted in relation to an argument raised by the Maunga Authority that s 4 of the Conservation Act 1987 imported the principles of the Treaty of Waitangi. I held that it was not necessary to determine that question because of my conclusions on the relationship between the Collective Redress Act and the Reserves Act. I do not agree that the costs to the Maunga Authority in preparing its submissions should be
27 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act, s 107.
28 Section 60.
29 Section 61.
30 Section 62.
discounted because I found against the applicants on this cause of action and did not ultimately need to determine the point.
[32] Accordingly, I allow for written submissions under step 36 of sch 3 of the Rules for both respondents.
Disbursements
[33] The applicants also disputed three specific disbursements claimed by the Maunga Authority. They objected to the Maunga Authority’s claims for a disbursement of $19,270.33 to Boffa Miskell Ltd for “Payment for services related to the preparation of an Affidavit by Janine Bell for the Owairaka/Mt Albert Judicial Review.” The applicants submitted this is a legal expense covered by step 30 of the time allocations and should not be claimed as a disbursement.
[34] The applicants also disputed whether Ms Bell gave evidence as an expert witness or as a witness of fact. Ms Bell’s affidavit reflects her lengthy and extensive involvement with the Maunga Authority’s Tūpuna Maunga Integrated Management Plan and the Tūpuna Maunga Strategies. While Ms Bell plainly brought her planning expertise to that involvement, I agree with the applicants that her affidavit is principally evidence of fact rather than expert evidence, and is not recoverable on that basis.
[35] The applicants also challenged two further disbursements claimed in relation to Ms Bell’s company, Boffa Miskell, for $3,942.56 and $2,111.50. The first is stated to be for “Overlay Maps of Owairaka/Mt Albert”, which did not form part of the Maunga Authority’s evidence, and the second is for “Service provided for Tupunua Maunga Integrated Management Plan”. In those circumstances, and without further explanation from the Maunga Authority, I agree that the disbursements do not meet the criteria for expenses separately recoverable as disbursements, as set out by Fisher J in Russell v Taxation Review Authority.31
31 Russell v Taxation Review Authority (2000) 14 PRNZ 515 (HC) at [22].
Result
[36] I award costs against the applicants and in favour of each of the first and second respondents, in the following amounts:
(a)First respondent: costs of $35,551.25 together with disbursements of
$6,602.26, totalling $42,153.51.
(b)Second respondent: costs of $31,488.25 together with disbursements of
$102.55, totalling $31,590.80.
Gwyn J
Solicitors:
Shortland Chambers, Auckland Buddle Findlay, Wellington Simpson Grierson, Auckland
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