Ours not Mines Limited v Hauraki District Council
[2025] NZHC 931
•16 April 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2022-419-000356
[2025] NZHC 931
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for judicial review of a decision of the Hauraki District Council
BETWEEN
OURS NOT MINES LIMITED
Applicant
AND
HAURAKI DISTRICT COUNCIL
First Respondent
OCEANA GOLD (NEW ZEALAND) LIMITED
Second Respondent
Hearing: On the papers Counsel:
T Mullins and A McDonald for Applicant
D Neutze and L Wansborough for First Respondent
S V McKechnie and B S Clifford for Third RespondentJudgment:
16 April 2025
COSTS JUDGMENT OF HARVEY J
This judgment is delivered by me on 16 April 2025 at 9am pursuant to r 11.5 of the High Court Rules.
…………………………………………….
Deputy Registrar
Solicitors:
LeeSalmonLong, Auckland Brookfields Lawyers, Auckland Simpson Grierson, Wellington
OURS NOT MINES LTD v HAURAKI DISTRICT COUNCIL [2025] NZHC 931 [16 April 2025]
Introduction
[1] On 15 September 2021, the Hauraki District Council (HDC) granted a 40-year licence to OceanaGold (New Zealand) Ltd (OGL), to occupy parts of an unformed HDC-owned road reserve (the licence). This was to enable OGL to construct vents to facilitate its proposed mining. Ours Not Mines Ltd (ONM), an environmental interest group, brought a judicial review challenging the decision for illegality and improper purpose. My judgment dated 2 February 2024 declined the application for judicial review brought by ONM on all grounds.1 Counsel were invited to submit memoranda within two months if they failed to agree on costs.2 The parties could not agree and filed memoranda. Regrettably, I have only recently been made aware of this.
[2] As the successful parties, the respondents sought separate costs on a 2B basis: HDC claimed $28,799.50 and OGL claimed $29,755.50. Mr Mullins, for ONM, submitted that costs should not be awarded because the proceeding was brought in the public interest. In the alternative, counsel contended that it is inappropriate to award two sets of costs and that both respondents had overclaimed. Mr Mullins did not dispute the respondents’ position that costs should not be deferred.
Public Interest
HDC’s submissions
[3] Mr Neutze for HDC acknowledged that costs may be refused or reduced where proceedings are brought in the public interest. However, counsel submitted that courts have declined to make any reduction, or have only made smalls reductions, in costs where the burden would fall on ratepayers.3 Moreover, Mr Neutze contended that the proceeding brought by ONM was not sufficiently meritorious to justify a refusal of costs in the public interest. Counsel argued that the challenges raised by ONM were not unique or novel points of law, but rather sought to challenge the orthodox legal position regarding the powers of local authorities to grant licences over roads.
1 Ours Not Mines Ltd v Hauraki District Council [2024] NZHC 63, [2024] 2 NZLR 456 [Substantive decision].
2 At [72].
3 Coro Mainstreet v Thames-Coromandel District Council [2013] NZHC 1527; Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2021] NZHC 944; and Aotearoa Water Action Inc v Canterbury Regional Council [2021] NZHC 48.
[4] Mr Neutze submitted that ONM acknowledged the true impetus for its proceedings was its environmental concerns with mining on conservation land: the fact that the licence was over a road reserve simply provided ONM with an opportunity to make a collateral challenge to the mining proposals. Accordingly, counsel contended that, while environmental concerns are a matter of public interest, they were not properly engaged here because the licence provides for access and did not authorise mining — which will be assessed via a separate resource consent process. Mr Neutze argued that, while the litigation may have been well-meaning, such a collateral challenge is not legitimately in the public interest, given the impact on ratepayers who bear the costs of defending them. In short, counsel submitted that costs for HDC should not be declined on public interest grounds. Alternatively, any reduction should be around 10 per cent.
OGL’s submissions
[5] Counsel contended that any public interest in these proceedings should not indemnify ONM against costs. Ms McKechnie argued the public interest component should not be overstated. A genuinely held environmental concern was not engaged. This was merely an unsuccessful challenge to the granting of a licence to access and occupy a road. Counsel highlighted my comment that there are more appropriate fora in which ONM could raise its concern with the mining proposals.4
[6] Ms McKechnie submitted that bringing a review of a local authority’s decision as a means of checking government decision-making does not invoke special public interest attributes such that it is in the public’s interest rather than being merely having public benefit.5 Accordingly, much like HDC, Ms McKechnie contended that no reduction should be made to costs or any reduction should be limited to 10 per cent.
ONM’s submissions
[7] Mr Mullins submitted the proceedings were brought by ONM solely in the public interest due to real concern over HDC’s decision-making, and with no personal
4 Substantive decision, above n 1, at [70].
5 Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council [2023] NZHC 862.
or private advantage to be gained. Counsel contended that the proceeding had genuine merit and was the only check on a HDC decision that would have public consequences and which was made without the involvement of HDC’s constituents. Mr Mullins argued that ONM had acted reasonably throughout.
[8] Counsel submitted that access to the courts for a genuine party is not to be lightly denied and that parties acting in a responsible way as “watchdogs of the public interest” perform a valuable public service in bringing litigation which exposes public law questions.6 Mr Mullins referred to a case which applied this principle to reject security for costs on the basis that costs were unlikely to be awarded.7
[9] Counsel also discussed the policy considerations behind the public interest approach to costs as a means of ensuring access to justice, and highlighted the difficulties costs create for public interest environmental cases. Mr Mullins went on to cite various cases in which costs have been refused on a public interest basis.8 Counsel reiterated that ONM brought the proceedings solely in the public interest and was playing an important social role in enabling legitimate public law issues to come before the Court.9 Mr Mullins emphasised that ONM was acting as a watchdog of the public interest and was performing a social service by bringing public law litigation connected to significant environmental issues where no one member of the public could reasonably be expected to have the capacity to do so.
[10] Counsel contended that HDC’s decision to grant a licence to build mining infrastructure on a public road was a novel situation that raised an important question as to the proper exercise of public power in the context of a contentious environmental matter. Mr Mullins argued that environmental concerns were engaged in these proceedings.
6 Te Whare O Te Kaitiaka Ngahere Inc Society v West Coast Regional Council [2015] NZCA 356 at [27]; and New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2013] NZCA 555 at [13].
7 Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 444 at [48]–[52].
8 Save Kapiti Inc v New Zealand Transport Agency [2013] NZHC 3314; New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525; and Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167.
9 Drawing an analogy with Environmental Defence Society Inc v New Zealand King Salmon Co Ltd, above n 8.
[11] Moreover, counsel submitted that ONM acted reasonably and was cooperative and constructive, seeking to deal with the application efficiently at all times. Mr Mullins contended that the respondents do not submit ONM’s arguments were fundamentally without merit and referred to the Court’s acceptance that the proceeding was properly brought.10 Further, counsel argued that ONM brought the proceeding with lawyers acting on a pro bono basis and that it would be appropriate for this Court to have regard to this factor when applying r 14.7(e).11
Discussion
[12] ONM had genuine public interest concerns in mind when bringing this litigation. As I found in the substantive decision, the underlying impetus for the proceedings was ONM’s environmental concerns about the proposed mining project.12 Further, the respondents have not alleged that ONM acted unreasonably in their conduct of the proceedings, or that they have acted for personal or private gain. The key issues are whether the environmental concerns were truly engaged by these proceedings, and whether the proceedings had sufficient merit.
[13] The proceedings concerned whether HDC could grant a licence of occupation over a public road to permit the construction of mining infrastructure. The granting of this licence did not, in itself, allow for mining activities and construction to occur in a regulatory sense. Further land use consents were required under both the Resource Management Act 1991 and the Wildlife Act 1953.13 In this sense, environmental concerns were not directly engaged as the focus was solely on the powers that local councils can exercise over public roads, rather than on the environment or mining per se. This can be contrasted with the direct manner in which such environmental concerns would have been engaged in proceedings challenging resource consents granted under the RMA.14
10 Substantive decision, above n 1, at [69].
11 Citing a Supreme Court case in which this was considered a relevant factor when assessing an application to waive security for costs: Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [37].
12 Substantive decision, above n 1, at [70].
13 Substantive decision, above n 1, at [17].
14 See [70] and compare Environmental Defence Society Inc v New Zealand King Salmon Co Ltd, above n 8.
[14] On the other hand, a key concern of ONM was that OGL was using the existence of paper roads to deliberately circumvent the statutory access regime for mining on conservation land.15 As ONM submitted, if the licence had not been granted, OGL would have had to traverse a more onerous path for access. While this concern could not be linked to any ground of judicial review, it informed the background to the proceedings.16 In short, ONM brought the proceedings in an attempt to close an alternative to the statutory access regime that they perceived as having negative environmental implications by making it easier to obtain one of the permissions necessary for mining on conservation land. When the case is considered in its wider context, I accept that it did engage genuine public interest that has some general importance beyond the interests of ONM.
[15] Turning to consider the merits of the proceedings, although ONM was unsuccessful on both grounds of illegality and improper purpose, I found that the case was properly brought.17 Further, the nature of HDC’s power to grant a licence over the road and the public nuisance and lease assessments were not entirely clearcut — discussion of these issues comprised some 44 paragraphs, or 14 pages, of the substantive judgment. Accordingly, although the application for judicial review was not sufficiently meritorious to succeed, I do not consider that it was so lacking in merit that it was brought on a unreasonable basis.
[16] Nevertheless, this was not the type of finely balanced case discussed in West Coast Ent Inc18 or New Zealand King Salmon Ltd.19 The merits of ONM’s arguments were limited. I note the force of HDC’s submission that ONM’s claims did not give rise to unique or novel points of law, but rather sought to challenge the orthodox legal position regarding the powers of local authorities to grant licences over roads — albeit in an unusual and contentious context. The relative degree of merit is relevant to the quantum of any public interest discount.
15 Substantive decision, above n 1, at [67].
16 At [68].
17 At [69].
18 West Coast Ent Inc v Buller Coal Ltd [2013] NZSC 133 at [4].
19 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd, above n 8, at [28].
[17] Ultimately, I consider that a limited reduction in costs under r 14.7(e) is justified. The cases under r 14.7(e) vary greatly in the extent of reductions provided. Some refuse to award costs entirely and leave them to lie where they fall.20 Others provided very small reductions, in the range of five to 15 per cent, particularly where the proceedings lacked merit or where the party opposing costs did not, in all facets, conduct the proceedings reasonably.21 Some cases fall in between.22 In this context, HDC has argued that it is relevant that any reduction in costs awarded to HDC would increase the burden on taxpayers. However, I agree with Mr Mullins in his capacity as author of The Law of Costs in New Zealand that the relevant cases cited by HDC were decided largely on the basis of the proceedings’ lack of merit or the unreasonable conduct of the party opposing costs or both.23
[18] Any distinction in the caselaw between local councils and ratepayers on the one hand and other public bodies such as the Crown, government ministries and public agencies and taxpayers on the other is a curious one.24 Rather, it seems that in both cases it is incumbent on the courts to balance the policy considerations behind r 14.7(e) against the need to avoid the resources of the courts and, where applicable, responsible government agencies from being taken up by unreasonable or unmeritorious cases.25 I consider the impact on ratepayers to be a relevant factor26 but not one that distinguishes it from cases involving other public agencies with consequent impacts on taxpayers.27
20 New Zealand Māori Council v Attorney-General, above n 8; West Coast Ent Inc v Buller Coal Ltd, above n 18; Environmental Defence Society Inc v New Zealand King Salmon Co Ltd, above n 8; and Save Kapiti Inc, above n 8.
21 Coro Mainstreet v Thames-Coromandel District Council, above n 3; Aotearoa Water Action Inc v Canterbury Regional Council, above n 3; Schmuck v Northland Regional Council [2020] NZHC 1270; and Norman v Tūpuna Maunga o Tāmaki Makaurau Authority, above n 3.
22 Northland Environmental Protection Society Inc v Chief Executive of Ministry of Primary Industries [2017] NZHC 2435.
23 David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at [3.40].
24 See Bullock, above n 23, at [3.40].
25 See Northland Environmental Protection Society Inc v Chief Executive of Ministry of Primary Industries, above n 22, at [7].
26 Such as was found (despite the merit of the arguments put forward by the party opposing costs) in
Norman v Tūpuna Maunga o Tāmaki Makaurau Authority, above n 3, at [26].
27 Such as New Zealand Māori Council v Attorney-General, above n 8; Save Kapiti Inc, above n 8; and Northland Environmental Protection Society Inc v Chief Executive of Ministry of Primary Industries, above n 22.
[19] ONM has not demonstrated any blindness to expert views or illegitimate obstinacy in their position.28 They have also conducted themselves reasonably in the proceedings and in genuine pursuit of the public interest.29 On the other hand, I find that their claim for judicial review was of limited merit. Overall, I consider that a discount of 20 per cent is justified per r 14.7(e). Many of the problems identified in Aotearoa Water Action Inc and Coro Mainstreet v Thames-Coromandel District Council are not present here (see above at [24]) and so a discount greater than the 10 per cent awarded in those cases is warranted. That said, my finding that a public interest discount of only 20 per cent is justified recognises that the limited merits of the present proceedings require considerable moderation in the discount granted.
Separate Costs
HDC’s submissions
[20] Mr Neutze submitted that HDC was required to provide fulsome evidence of its decision-making, particularly in light of ONM’s allegation that HDC had acted for an improper purpose. Counsel contended that it could not rely on OGL to respond to this allegation and/or to give evidence of HDC’s decision-making. Mr Neutze also argued that it was appropriate for HDC to actively oppose ONM’s application because it challenged HDC’s lawful authority to grant licences over roads and, therefore, had wide-ranging implications for HDC and its powers as a road controlling authority.
[21] Counsel submitted that this was not a situation where there was unnecessary duplication of arguments as OGL would not have been able to assist the Court to the same extent on any of the matters led by HDC.30 Mr Neutze contended that OGL also provided its own unique and important evidence and submissions on factual matters relating to the proposed structures and ONM’s allegation that OGL was trying to circumvent other legislative requirements.
28 Contrast Coro Mainstreet v Thames-Coromandel District Council, above n 3, at [8]–[9].
29 Contrast Aotearoa Water Action Inc v Canterbury Regional Council, above n 3, at [51]–[57].
30 Being arguments as to the HDC’s lawful authority to issue a licence, the principles that apply to nuisance, the substance of the licence, and refuting allegations of the HDC acting for an improper purpose.
[22] Counsel argued that HDC and OGL had fundamentally different interests in the land: HDC as owner and controller of the land, and OGL as a commercial entity. While their submissions were largely complementary, Mr Neutze submitted that they were not always aligned.31 Counsel contended it would have been inappropriate for HDC to have limited its participation in the case or joined with OGL. For these reasons, Mr Neutze argued that the involvement of both HDC and OGL did not result in the duplication of arguments.
[23] Moreover, as to the role of HDC in defending the proceedings, counsel submitted that Fraser does not apply as the decision to issue the licence was not quasi-judicial.32 It was a decision made by HDC in its capacity as owner and controller of the land in question. In these circumstances, Mr Neutze contended HDC was both entitled and best-placed to defend its decision and its right in general to issue licences over roads (both of which, counsel argued, were challenged by ONM).
[24] Mr Neutze submitted that it is common practice for councils or public decision-makers to take an active role in judicial review proceedings, even where there are other contradictors with their own interests in the proceedings. Further, Mr Neutze contended that this Court regularly awards decision-makers and other contradictors separate costs in defending applications for judicial review.33
OGL’s submissions
[25] Ms McKechnie submitted that OGL had its own direct interest in the proceedings distinct from that of HDC. Given the nature of their relationship, counsel contended a joint defence or representation would have been inappropriate. Rather, their roles are such that they were justified in remaining at arm’s length from one another. Ms McKechnie highlighted that if the judicial review application had been successful it would have resulted in different consequences for OGL and HDC. Counsel also argued that the allegations of bad faith raised by ONM posed commercial
31 For example, in their approach to the public nuisance argument.
32 Fraser v Central Hawke’s Bay District Council [2021] NZHC 2981, [2022] NZRMA 90.
33 Coromandel Watchdog of Hauraki (Inc) v Minister of Finance and Associate Minister of Finance [2020] NZHC 3445; Whanarua Beachfront Property Owners Group Inc Society v Ōpōtiki District Council [2022] NZHC 2589; Kaikoura and Hurunui Landowners Association Inc v Minister of Fisheries [2022] NZHC 3425; and Royal Forest and Bird Protection Society of New Zealand, above n 5.
risk to OGL’s reputation and would have impacted its relationships with local authorities and regulatory decision-makers. Given this, Ms McKechnie submitted that separate representation was required.
[26] Counsel contended that there was no substantial duplication in the evidence filed by OGL and HDC. For example, OGL filed evidence on the proposed structures and activities, and on the important physical characteristics of the area. Ms McKechnie argued this evidence could not have been provided by HDC. Likewise, counsel submitted that OGL could not have provided evidence as to HDC’s decision-making process. Therefore, Ms McKechnie contended that two sets of 2B costs are fair given the expenses incurred (which considerably exceeded the costs sought).
ONM’s submissions
[27] Mr Mullins submitted that awarding two sets of costs for an essentially common defence would be inappropriate. Counsel referred to the presumption under r 14.15 that the Court must not allow more than one set of costs without good reason. Mr Mullins contended that the respondents have not provided a compelling basis for why this presumption against two sets of costs should not apply.
[28] Counsel argued that the respondents could and should have joined in their defence. Mr Mullins submitted that there was no specific point that required either respondent to participate in addition to the other. Counsel contended that their interest in the proceeding concerning the legality of HDC entering the contract is identical: each wished to defend HDC’s decision in order to prevent the licence being rendered void. However, their decision to defend separately led to each advancing essentially duplicate arguments in answer to the legality issue.
[29] Mr Mullins noted that ONM notified HDC of this principle (copying OGL) on 13 February 2023, but that HDC insisted on taking active steps regardless.
[30] Counsel argued that it is difficult to see how ONM’s allegation the HDC acted for an improper purpose could provide a basis for separate representation. As early as 16 February 2023 ONM’s solicitors wrote to both respondents that “[a]s you will be
aware, a power granted for a specific purpose must be used for that purpose. Our client has not alleged in its pleading any bad faith or similar problem in the making of the decision.” Counsel also noted that the judgment recorded this.34 As to HDC’s role in defending the proceedings, Mr Mullins submitted that it is well settled that public decision-makers should not become protagonists challenging their own decisions beyond exceptional circumstances. The decision-maker should speak through the decision rather than attempting to justify it further.
[31] Counsel contended that Fraser was not referring to only quasi-judicial decision-making. Instead, the court simply stated the principle is even more important in such cases. The principle remains one of broad application. Mr Mullins argued that in light of this principle, HDC ought not to have entered the fray and having elected to do so, ought to bear its own costs. At most, counsel submitted HDC should have put the decision-making record before the Court and abided its decision. Moreover, Mr Mullins contended that even if some decision makers do choose to insert themselves in judicial review proceedings, that practice does not justify seeking costs in the defence of their own public decisions.
Discussion
[32] Beginning with the role of HDC in defending these proceedings, the principle expressed in Fraser applies to all public decision-making, not only quasi-judicial decisions. Rather, the Court held only that the principle is particularly relevant in quasi-judicial decisions.35 I agree with Mr Neutze that this was not a quasi-judicial decision, but rather one made by HDC as a landowner.
[33] The principle itself requires that HDC avoid entering the fray and should act as far as possible in a non-partisan fashion.36 However, the case law sets out legitimate exceptions where considerations of public interest and the effective administration of
34 Substantive decision, above n 1, at [2(d)] and [68].
35 Fraser v Central Hawke’s Bay District Council, above n 32, at [16].
36 Fraser v Central Hawke’s Bay District Council, above n 32, at [16]; and Environmental Defence Society v New Zealand King Salmon Company Ltd, above n 8, at [13].
an Act arise,37 or where it is important for the Court to be provided with a wider perspective than other parties are able to provide.38
[34] Here there was a legitimate public interest in HDC engaging in the proceeding as the issues concerned the scope of councils’ abilities to grant licences over roads — it concerned the effective administration of roads by councils and the interpretation of the Local Government Act 1974. I consider HDC was able to provide a wider perspective on the matter that properly advised the Court on these issues and the broader implications for councils as road controlling authorities. Further, as mentioned, HDC was not performing a quasi-judicial function and so the policy rationales behind the principle in Fraser have less force here, although they still apply. Weighing these considerations together and noting similar cases where decision-makers engaged in judicial review, I find it was appropriate for HDC to engage with these proceedings.39
[35] However, it remains to be determined, in light of r 14.15, whether separate sets of costs should be awarded to HDC and OGL. This case has considerable similarities with Coromandel Watchdog of Hauraki (Inc). HDC and OGL “had different interests at play and the consequences of a finding of unlawfulness were substantively different for each.”40 Further, both provided different and unique evidence: the former provided evidence about its decision-making process whereas the latter provide evidence about its proposed structures and activities, and further evidence in response to the allegation OGL was trying to circumvent legislative requirements.
[36] To a certain extent, I am also sympathetic to the submission it may have been inappropriate for HDC and OGL to have run a joint defence. Although ONM was at pains to emphasise it was not alleging bad faith, HDC and OGL’s roles may have nonetheless justified them remaining at arm’s length from each other.41 Notably, the
37 Fraser v Central Hawke’s Bay District Council, above n 32, at [17].
38 Environmental Defence Society v New Zealand King Salmon Company Ltd, above n 8, at [13].
39 Coromandel Watchdog of Hauraki (Inc), above n 33; Whanarua Beachfront Property Owners Group v Ōpōtiki District Council, above n 33; Kaikoura and Hurunui Landowners Association Inc v Minister of Fisheries, above n 33; and Forest and Bird v Southland District Council, above n 33.
40 Coromandel Watchdog of Hauraki (Inc), above n 33, at [27].
41 Although, on the other hand, this was not a quasi-judicial decision and accordingly the impropriety of a joint defence between the decision-maker and a respondent may be somewhat less.
allegations raised by ONM, even if they did not threaten HDC’s reputation, specifically threatened the reputation of OGL.42
[37] Nonetheless, as conceded by HDC, their submissions were complementary in many respects and there was a common interest in the interpretation, origins and scope of HDC’s power to grant a licence over roads, and in the public nuisance and lease issues. Further, it was a judicial review claim and, if successful, ONM would only be entitled to a single award. Taking these factors into account, I consider that both HDC and OGL are entitled to separate costs but, as in Coromandel Watchdog of Hauraki (Inc), a further discount of 15 per cent is warranted.43
Overclaim
[38] Mr Mullins submitted that the respondents each overclaimed by $5,736 and that adjustments would need to be made. In joint memoranda, HDC and OGL accepted several of these adjustments but others remained in dispute.
Item 35: Second counsel
[39] Mr Mullins submitted that second counsel were not justified for a short affidavit hearing. The respondents contended that second counsel assisted principal counsel throughout the hearing, with second counsel for OGL also presenting oral submissions on specific matters at issue in the hearing.44 They noted that ONM was also represented by two counsel at the hearing.45
[40] Second counsel was not justified. The authorities cited by the respondents are distinguishable. In Edubase:46
… the hearing took place over a period of four days, involved a considerable amount of documentation, seven witnesses giving oral evidence, and lengthy periods of cross-examination. The material in issue required that a large portion of the substantive judgment be directed to addressing the evidence,
42 See Jason Bull (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR14.15.02(c)].
43 Coromandel Watchdog of Hauraki (Inc), above n 33, at [31].
44 Citing Edubase Ltd v Minister of Education [2022] NZHC 2427 at [24]–[25].
45 Citing New Conservative v Television New Zealand Ltd [2020] NZHC 3096 at [12]; and Edubase Ltd v Minister of Education, above n 44, at [25].
46 At [24].
and the making of factual findings, rather than issues of a legal nature. That involved some complexity.
[41]Likewise, in New Conservative:47
Although the proceeding was not lengthy or complex (whether legally or factually), I am of the view that it did warrant second counsel because of its significance and urgency. In particular, the opposition to the application had to be prepared urgently. Not only was a comprehensive 10 page affidavit prepared and sworn, but submissions were drafted, all in the space of a day or so. It is obvious that more than one counsel was required.
[42] The costs relates to a short affidavit hearing which did not involve the urgency noted in New Conversative. Even though ONM was represented by second counsel, I do not consider that was justified. The respondents have overclaimed in relation to this item. I note that the disbursements sought for accommodation for two counsel by both respondents should also be halved accordingly.
Item 36: “Memorandum in relation to preliminary concerns with the statement of claim”
[43] Mr Mullins submitted that this was an unorthodox and unnecessary memorandum. Counsel contended that had the respondents considered ONM’s pleadings to be deficient, they ought to have first sought particulars by letter or notice.
[44] The respondents argued it was necessary to raise their concerns regarding ONM’s statement of claim and affidavit evidence ahead of the case management conference at which the issues were intended to be addressed. The respondents submitted they had sought initial engagement from ONM regarding their concerns with the statement of claim prior to filing the memorandum, endeavouring to resolve the concerns without requiring refinement of particulars, and that a notice for better and further particulars was subsequently made.
[45] I agree that this memorandum was unorthodox and unnecessary. Despite some engagement with ONM prior to filing, more should have been done by the respondents beforehand, as submitted by Mr Mullins. Therefore, I accept that the respondents have overclaimed in relation to this item.
47 At [12].
Item 36: Memorandum seeking extension for filing evidence
[46] Mr Mullins submitted that costs should not be awarded for a consent memorandum filed when OGL requested an extension for its evidence for its own reasons. OGL contended that an extension for the filing of its evidence was necessary due to unforeseen weather circumstances. OGL took steps to consult with counsel for ONM and HDC and prepared a joint memorandum. Therefore, counsel argued that OGL should be able to recuperate its costs for taking those steps.
[47] OGL is entitled to claim costs for this memorandum, especially as the weather circumstances were unforeseen and outside their control. I also note that HDC has removed this amount from their own costs claim.
Item 36: Memorandum amending the timetabling directions
[48] The respondents accept that this memoranda should be categorised as Band A. Nevertheless, comparable memoranda to the memorandum seeking amended timetabling directions in sch 3 of the High Court Rules are allocated 0.2 days on a Band A basis. The respondents had sought 0.2 days.
[49] I find the appropriate allocation for comparable memoranda on a Band A basis is 0.2 days, and accordingly there is no need for an adjustment.
Sealing the Judgment
[50] Mr Mullins argued that both respondents have overclaimed costs by $478 on the basis that they have claimed costs for sealing of the judgment. As the applicant has filed an appeal, it is for the applicant to take steps to ensure that the judgment is sealed.
[51] This appears to be a misinterpretation of the respondents’ claim for costs for item 29 as set out in the schedules to their joint memorandum. While the respondents agree that it should ordinarily fall to the applicant to arrange for the sealing of the judgment, the respondents’ claims are for sealing the costs order or judgment, not the substantive judgment. Given that counsel for the respondents have agreed that HDC
will arrange for this to occur and that OGL will not claim such costs, no further adjustment is necessary.
Total adjustment
[52]Therefore, I consider that only an additional downwards adjustment of
$2,748.50 should be made to both HDC and OGL’s costs, and that the accommodation disbursements should be halved.
[53] I have found that HDC and OGL are entitled to separate sets of costs, but that a discount of 15 per cent is warranted in recognition of their commonality of interests and the overlap in their submissions. An additional 20 per cent public interest discount is also justified. As set out above, additional adjustments have been made in relation to several amounts I consider were overclaimed.
Decision
[54] ONM must pay $16,933.15 in costs and $502.19 in disbursements to HDC and must pay $17,554.55 in costs and $643.60 in disbursements to OGL.
Harvey J
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