Pascoe v Minister of Land Information

[2023] NZHC 795

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-000048

[2023] NZHC 795

UNDER THE

Judicial Review Procedure Act 2016

IN THE MATTER OF

The Public Works Act 1981 and a second notice of intention to take land from TJS and DA Pascoe

BETWEEN

TONY JAMES SOFUS PASCOE and DEBBIE ANN PASCOE

Applicants

AND

MINISTER OF LAND INFORMATION

Respondent

Hearing:

On the papers

Appearances:

Mr and Mrs Pascoe in person

R L Roff, J W Henderson and J M Prebble for Respondent

Judgment:

14 April 2023

JUDGMENT OF GRICE J

(Costs)

Costs application

[1]                  This is an application for costs following the determination of three preliminary questions.1 Following that determination I indicated that as an interlocutory matter “costs would usually be awarded following this determination”.2 I set a timetable for the parties to make submissions unless they could agree.3

1      Pascoe v Minister of Land Information [2022] NZHC 3173.

2 At [60].

3 At [60].

PASCOE v MINISTER OF LAND INFORMATION [2023] NZHC 795 [14 April 2023]

[2]                  Following that determination the applicants filed a notice of appeal, which was initially rejected by the Deputy Registrar on the basis that leave was required because I had referred to the preliminary issues determination as an interlocutory matter.

[3]                  The Court of Appeal, in granting leave to review the Deputy Registrar’s decision declining to accept the notice of appeal for filing, noted that the preliminary questions determination was a final decision insofar as those questions were concerned.4 The judgment was not interlocutory. The review was granted and the Deputy Registrar was directed to accept the notice of appeal for filing.5

Preliminary issues costs

[4]                  This Court dealt with a costs application in relation to a preliminary issues determination in Principal Finance Ltd v Halse.6 The relevant focus in that costs application was whether the plaintiff was entitled to costs when the contest on the preliminary issues was between the third-party insurer and the defendant. However, the insurer had argued that the resolution of the preliminary question was an interlocutory proceeding, with the consequences that costs should be allowed on that basis and not as if the matters at issue formed part of the substantive proceeding.7 Toogood J noted that the resolution of the preliminary questions did not affect the issues between the plaintiff and the defendants, which remained at large.8 He considered that the plaintiff should bear its own costs as the contest was between the third-party insurer and the defendant.9 His Honour said:

[36] I accept the submissions for the defendants and the third party that the application for an order directing the determination of the separate questions was an interlocutory proceeding. Once that order had been made, however, the determination of the preliminary questions was in the nature of a substantive proceeding between the defendants and the third party. The costs recovery items should be assessed accordingly.

4      Pascoe v Minister of Land Information [2023] NZCA 14.

5 At [8].

6      Principal Finance Ltd v Halse [2013] NZHC 3159.

7 At [14].

8 At [23].

9 At [24].

[5]                  Toogood J went on to set the costs entitlement was to be calculated on a 2B basis, with the application being on an interlocutory basis and the determination on a substantive basis.10

[6]                  In the circumstances I do not consider it appropriate to set costs at this stage. While it may well be that the application was an interlocutory application, the preliminary determination itself was a substantive determination. Determination of costs therefore would require consideration of matters relevant to a full hearing of the substantive issues. Such an approach would be inefficient. There are matters which may be relevant to a final costs award which cannot be dealt with now, such as offers to settle.

[7]                  There is good reason not to deal with the costs issue on the preliminary determination until all substantive matters are dealt with. To do otherwise would likely require a revisiting of any costs award made at this stage, which would be inefficient and would likely not promote the objective under r 1.2 of the High Court Rules 2016, which is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application.

[8]                  Accordingly, I decline to make an order for costs at this stage. I note the issues involved a half-day hearing by VMR. There was a subsequent exchange of memoranda in which the Crown sought to put further questions before the Court for determination. This was opposed by the Pascoes and I determined it was inappropriate to deal with the further matters raised by the Crown. It appears that an issue raised by the Crown has now apparently resolved itself, for the moment in any event.

[9]                  The proceeding was the subject of a case management teleconference before Cull J on 13 March 2023. She directed:11

(a)Any award of costs from the preliminary judicial review hearing should be determined by Grice J in due course.

10 At [37].

11     Pascoe v Minister for Land  Information  HC  Ngāmotu  |  New  Plymouth  CIV-2021-443-48, 13 Māehe | March 2023 (Minute of Cull J).

(b)The remaining (substantive) grounds of review, three, four and five, are stayed until the outcome of the parallel PWA objection proceedings in the Environment Court.

(c)The parties are to notify this Court once the Environment Court has issued its substantive decision on the PWA objection.

(d)The Thirstlehurst delegation issue, which is currently before the Environment Court should await a determination from the Environment Court. Any further steps to be taken either by the Environment Court or the parties to bring the matter before this Court should follow the Environment Court’s determination.

(e)If practicable, this file should be referred to Grice J on any further matters arising in respect of the pleadings issues by the applicants.

Management conference call

[10]              It is inappropriate that this matter be adjourned sine die. Therefore I direct the matter be placed for call in the High Court list on a date not earlier than 1 October 2023 for an update by the parties as to progress in the Environment Court matters. In addition, the parties should advise as to whether they agree on a categorisation of costs for the proceeding, as this does not appear to have been done to date. If it has not been done already, the parties should address the appropriate category in their memoranda. If the Environment Court matter is resolved before that date the parties should advise the Registrar and the matter should be placed in the list earlier.

Conclusion on costs application

[11]              The application for costs is to be dealt with on application following the substantive proceeding judgment or resolution otherwise between the parties. Any such application should be filed within 10 days of the judgment or of the resolution unless otherwise directed by the Court.

Grice J