Poutama Kaitiaki Charitable Trust v Taranaki Regional Council
[2022] NZHC 1192
•26 May 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-15
[2022] NZHC 1192
BETWEEN POUTAMA KAITIAKI CHARITABLE TRUST AND D & T PASCOE
Appellants
AND
TARANAKI REGIONAL COUNCIL
First Respondent
NEW PLYMOUTH DISTRICT COUNCIL
Second RespondentWAKA KOTAHI NZ TRANSPORT AGENCY
Third Respondent
TE RŪNUNGA O NGĀTI TAMA TRUST
Section 301 Party
Hearing: On the papers Appearances:
M Gibbs and R H White on behalf of the Appellants D Allen, T Ryan and C A Easter for Third Respondent
Judgment:
26 May 2022
JUDGMENT OF ISAC J
[Costs]
Introduction
[1] This is an application for costs by the third respondent, Waka Kotahi. In a judgment of 30 March 2022, I dismissed an appeal by the appellants, Poutama Kaitiaki Charitable Trust and Mr and Mrs Pascoe, against decisions of the Environment Court
POUTAMA KAITIAKI CHARITABLE TRUST AND D & T PASCOE v TARANAKI REGIONAL COUNCIL [2022] NZHC 1192 [26 May 2022]
(substantive judgment).1 In a separate decision on the same day, I provided reasons for refusing the appellants’ applications for recusal and adjournment (procedural judgment).2
[2] The parties have been unable to settle costs amongst themselves and have filed memoranda.
Background in brief
[3] An outline of the relevant procedural history is set out in the previous decisions of this Court and the Supreme Court.3
[4] The case concerns Te Ara o Te Ata, a proposed new section of state highway to the north of New Plymouth. The proposed road requires land owned by the Pascoes and in which Poutama claim an interest. The appellants oppose the proposed road realignment and have brought a series of challenges to decisions in the Environment Court and this Court which have been unsuccessful.
[5] The present proceeding is an appeal against the second and final interim decisions of the Environment Court (delivered on 10 March and 1 April 2021) confirming the resource consents for the highway and Waka Kotahi’s notice of requirement.4
[6] The appeal came before me on 18 October 2021. Once the hearing was underway the appellants sought an adjournment claiming that, the night before, they had uncovered conduct by Waka Kotahi before the Environment Court amounting to
1 Poutama Kaitiaki Charitable Trust and D & T Pascoe v Taranaki Regional Council [2022] NZHC 629 [substantive judgment].
2 Poutama Kaitiaki Charitable Trust and D & T Pascoe v Taranaki Regional Council [2022] NZHC 628 [procedural judgment].
3 In addition to the substantive and procedural judgments, the following decisions also concern this proceeding: Director-General of Conservation v Taranaki Regional Council [2018] NZEnvC 203; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZSC 87; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZHC 326; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZSC 124; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZSC 153.
4 Director-General of Conservation v Taranaki Regional Council [2021] NZEnvC 27; and Director- General of Conservation v Taranaki Regional Council [2021] NZEnvC 40.
perjury and an attempt to pervert the course of justice. They also submitted the appeal could not proceed because unspecified maps prepared by Waka Kotahi of its proposed work were either unavailable or misleading. No evidence was provided in support of these claims and no adequate explanation provided for the late application.5
[7] I declined to grant an adjournment and called on the appellants to begin their submissions. Ms Grey, counsel appearing for the Pascoes, and Ms Marie Gibbs, who represented Poutama at the hearing, advised me that they had no instructions to continue with the hearing and were not in a position to proceed. Ms Grey sought and was granted leave to withdraw. Thereafter, the appellants took no further part in their own appeal.
[8] In my procedural judgment, I concluded that the grounds advanced in support of the adjournment were so vague and insubstantial that they defied any meaningful consideration. They also lacked a connection to any need to adjourn the hearing.6 I observed that an available inference was that the appellants had made a decision to withdraw from the hearing before the hearing commenced, and before they knew the result of their application for an adjournment.7
[9] In my substantive judgment, I concluded that the appeal mostly reflected an effort to relitigate factual and other findings that had been finally determined against the appellants in earlier proceedings.8
Submissions
Waka Kotahi
[10] Waka Kotahi seeks costs on an indemnity basis of $90,224.52, which it says is a conservative assessment. Alternatively, it seeks scale costs, with a 50 per cent uplift, totalling $35,043.38.
5 Procedural judgment, above n 2, at [50] and [55].
6 At [49].
7 At [69].
8 Substantive judgment, above n 1, at [15]–[16].
[11] Waka Kotahi says several factors justify an award of indemnity costs (or increased costs should the Court determine indemnity costs are not appropriate). First, the appellants pursued a large number of irrelevant and non-justiciable grounds of appeal. Second, they made “bald allegations of perjury and perverting the course of justice” and “serious allegations of criminality” that were unsubstantiated and irrelevant. Third, the appellants appeared at the hearing seemingly with no intention to proceed, and with the apparent ulterior motive of derailing the appeal process.
Poutama and the Pascoes
[12] The appellants submit instead that costs should lie where they fall. They reiterate the allegation of fraud raised in support of their adjournment application — that Waka Kotahi deliberately misled the Environment Court and this Court by failing to disclose the true cost of an alternative route option. The appellants point to several Waka Kotahi reports (two of which were obtained in March 2022, after the appeal before me) which suggest that an alternative route option was estimated to cost only
$200m, when sworn evidence for the respondents was that it would cost $382.5m.
[13] In addition, the appellants allege that the respondents have falsified evidence, committed perjury and misled the Court in relation to the amount of wetland required by the various route options, Waka Kotahi’s intention to build a “cable way” that was not included in the resource consents, and the extent to which the Te Rūnanga o Ngāti Tama Trust actually represents Ngāti Tama. In support of these allegations, the appellants rely on a recent unsworn affidavit by Marie Gibbs that was filed by Poutama and the Pascoes in the Environment Court in support of an application for an interim enforcement order.
[14] The appellants argue it would be a miscarriage of justice to award costs against them given the respondents’ deceptive conduct, noting that the Crown will not take inappropriate or unfair advantage of an impecunious or unrepresented opponent.9
9 Attorney-General’s Values for Crown Civil Litigation, value 5.6.
Analysis
[15] Scale costs apply by default where cause is not shown to depart from them.10 Increased costs under r 14.6 may be ordered where there is a failure by the paying party to act reasonably.11 And indemnity costs may be ordered where that party has behaved either exceptionally badly or very unreasonably.12
[16] I am satisfied that Waka Kotahi, which succeeded on every ground of appeal, is entitled to costs. The question is whether costs above scale are warranted.
[17] In Bradbury v Westpac Banking Corp the Court of Appeal identified the following (non-exhaustive) circumstances in which indemnity costs may be justified:13
(a)the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;
(b)particular misconduct that causes loss of time to the court and to other parties;
(c)commencing or continuing proceedings for some ulterior motive;
(d)doing so in wilful disregard of known facts or clearly established law; or
(e)making allegations which ought never to have been made or unduly prolonging a case by groundless contentions, summarised in the “hopeless case” test.
10 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27]–[28].
11 At [27].
12 At [27]–[28].
13 At [29].
[18] A hopeless case is one “totally without merit” and “bound to fail”,14 or a case which ought never to have been brought.15 While flagrant misconduct is ordinarily required for indemnity costs, it is not required for the hopeless case category.16 And, where a case is truly hopeless the action must be presumed to have been commenced for some ulterior motive.17
[19] The appellants used a shotgun approach to the grounds of appeal. I found they were largely an attempt to relitigate factual and other findings which had already been finally determined or were otherwise irrelevant.18
[20] Given the Court could not entertain 16 of the 18 grounds advanced by the appellants, I have no hesitation concluding those arguments were totally without merit and bound to fail. Advancing them contributed unnecessarily to the time and expense of the proceeding.
[21] That said, the appellants did raise two grounds which required consideration at the hearing. Although I ultimately dismissed those grounds, they were not totally without merit. Accordingly, it cannot be said the entire appeal ought never to have been brought. The proceeding does not meet the hopeless case test.19
[22] Overall, I am satisfied that this is a case where an award of increased costs above scale of 50 per cent is warranted, given the approach taken by the appellants to the grounds of appeal, and the additional burden that approach placed on Waka Kotahi.
[23] I am not satisfied, however, that the appellants’ approach to the appeal reaches the high threshold necessary for indemnity costs. That is so even though I consider that the conduct of the appellants at the hearing — effectively abandoning their appeal having sought to derail it — was improper.
14 TheCircle.co.nz Ltd v Trends Publishing International Ltd (in liq and in rec) [2021] NZCA 235 at [34].
15 Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 348, (2014) 22 PRNZ 322 at [17] and [33].
16 At [27].
17 At [27].
18 Substantive judgment, above n 1, at [15]–[16], [69] and [70].19 As the Court of Appeal recently held in Mawhinney v Auckland Council [2021] NZCA 144, [2021] 3 NZLR 519 at [60], “[e]ven if only one cause of action has merit, it cannot be said that the proceeding is totally without merit”.
[24] While the conduct was discourteous, and might constitute an abuse of process, the purpose of the costs regime is to compensate in some measure a successful party rather than punish a party for inappropriate conduct. In this case, Waka Kotahi was inevitably required to prepare for and attend the hearing. The conduct it points to, beyond the large number of irrelevant or non-justiciable grounds of appeal, arose at the hearing itself. Those matters did not contribute unnecessarily to the costs Waka Kotahi incurred. And there is an insufficient basis to safely conclude that the appellants’ conduct at the hearing was for an inappropriate ulterior motive.
[25] Finally, as a matter of completeness, the allegations made in the unsworn material filed by Ms Gibbs alleging serious criminality against Waka Kotahi is not relevant to the issue for determination. The disposition of costs in a proceeding should be predictable and expeditious. Resolution of them is not an opportunity to embark on contested issues of fact, or for the appellants to bolster the unparticularised allegations made at the outset of the appeal hearing.
Result
[26] Waka Kotahi is entitled to an order for costs against the appellants, jointly and severally, in the sum of $35,043.38.
[27] Normally a costs award against a trust is made against its trustees. For reasons that are unclear the appeal was not brought in the name of the trustees of Poutama. Leave is reserved should further orders be required.
Isac J
Solicitors:
Buddle Findlay, Wellington for Waka Kotahi
0
11
0