Poutama Kaitiaki Charitable Trust v Taranaki Regional Council
[2021] NZHC 872
•23 April 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-443-005
[2021] NZHC 872
UNDER THE Resource Management Act 1991 (RMA) IN THE MATTER
of an appeal from a decision of the
Environment Court pursuant to section 299 of the RMA
BETWEEN
POUTAMA KAITIAKI CHARITABLE TRUST AND D & T PASCOE
Appellants
AND
TARANAKI REGIONAL COUNCIL
First Respondent
AND
NEW PLYMOUTH DISTRICT COUNCIL
Second Respondent
AND
WAKA KOTAHI NEW ZEALAND TRANSPORT AGENCY
Third Respondent
AND
TE RŪNANGA O NGĀTI TAMA TRUST
Section 301 Party
AND
TE KOROWAI TIAKI O TE HAUĀURU INCORPORATED
Section 301 Party
Hearing: 18 February 2021 Counsel:
M and R Gibbs in person for Appellants (Poutama Kaitiaki Charitable Trust)
S Grey for Appellants (D & T Pascoe)
H Harwood for First and Second Respondent P Beverley and D Allen for Third Respondent
P Majurey and V Morrison-Shaw for Te Rūnanga o Ngāti Tama Trust
V Morrison-Shaw for Section 301 Party
Judgment:
23 April 2021
POUTAMA KAITIAKI CHARITABLE TRUST v TARANAKI REGIONAL COUNCIL [2021] NZHC 872
[23 April 2021]
JUDGMENT OF GRICE J
(Costs on recall application)
[1] Poutama made an application for recall of the judgment1 dismissing its appeal against an interim decision of the Environment Court.2 The Environment Court, in general terms, allowed construction by New Zealand Transport Agency (Waka Kotahi) of a six kilometre part of the Taranaki/Waikato State Highway 3.
[2] The application for recall was made on a number of grounds. I summarise those as follows:
(i)Matters which are presently before the Environment Court: it had not yet made its final decision in relation to the Waka Kotahi applications.
(ii)Cultural issues: the High Court made errors in its assessment of the Environment Court decision that, for the purposes of the project, Poutama did not have mana whenua and the High Court failed to take into account authorities including a High Court decision delivered after the appeal was heard: Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd.3
(iii)The publication of new authority since the High Court decision was delivered: this refers to a new report released by the Waitangi Tribunal entitled “Te Mana Whatu Ahuru: Report on the Te Rohe Pōtae Claims”, the sixth and final part of Take a Takiwā, released on 22 December 20204 (published after the
1 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZHC 326 [“Recall Judgment of the High Court”]
2 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159, (2020) 22 ELRNZ 202 [“Substantive Judgment of the High Court”].
3 Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, (2020) 22 ELRNZ 110 [“Ngāti Maru Trust”].
4 Waitangi Tribunal Te Mana Whatu Ahuru: Report on the Te Rohe Pōtae Claims, Part VI of Take a Takiwā – Pre-publication Version (Wai898, 2020) [“Waitangi Tribunal Report of Te Mana Whatu Ahuru”].
High Court decision). Poutama says this report contains information that confirms Poutama as tāngata whenua.
[3] Waka Kotahi opposed the application for recall, as did the first and second respondents and Te Rūnanga o Ngāti Tama Trust (the Section 301 Party). Only Waka Kotahi and Ngāti Tama Trust actively participated at the hearing.
[4] This Court declined the application for recall, as the grounds advanced were not made out:5 the issues in the first ground were not put before this Court; the cultural issues had been addressed, with additional submissions received after the hearing; and the release of the Waitangi Tribunal report did not meet the standard required to recall a judgment, nor was there any other special reason that justice would require a recall.
[5] Only Waka Kotahi seeks costs on the recall application.6 It seeks increased costs on the basis that Poutama failed to act reasonably,7 and that Poutama attempted to relitigate matters through the recall application, which can be an abuse of process.8 Waka Kotahi says that Poutama’s challenges to findings of fact and law and matters already considered were without basis and amount to an abuse of process. It seeks costs of $5,616.50, calculated on a 2B basis, with a 50 per cent uplift, totalling
$8,424.75.
[6]Poutama have responded pointing out the following:
(a)Costs are at the discretion of the Court.9
(b)The issues and values at stake were extremely important to Poutama as they related to continued rangatiratanga and kaitiakitanga of the tribe, which had been confirmed in the Native Land Court decision in 1882.
5 Recall Judgment of the High Court, above n 1, at [14], [18], [25] and [27].
6 During submissions at the hearing, Waka Kotahi sought that costs be fixed at the determination of the application, submitting there were no special reasons to the contrary, in accordance with s 14.8 of the High Court Rules 2016.
7 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27].
8 Lyon v R [2020] NZCA 430 at [34] and [67]; and Fitzgerald v IAG New Zealand Ltd [2019] NZHC 632 at [8].
9 High Court Rules 2016, r 14.1.
(c)It is a charitable organisation that operates without public funds to represent the interests of its hapū and whānau.
(d)There is a significant disparity in resources available to Poutama compared to Waka Kotahi to progress the roading project. Poutama has limited resources and considered the recall was more efficient to for the parties and the Court than lodging an appeal.
(e)Poutama considered the Waitangi Tribunal to be of high authority in relation to Māori, Māori rights and standings especially in comparison to the consideration of resource consents. That is why it advanced its recall application on the basis of the Waitangi Tribunal report released after the substantive judgment in the appeal in this Court.10
(f)Waka Kotahi are seeking to apply the decision of the Environment Court against Poutama generally, rather than just in relation to the proposed Mt Messenger project, despite the High Court determination that the Environment Court findings were limited to that project.
[7] Poutama submit that costs should lie where they fall.11 It points out that there is jurisprudence recognising the harmful effect that threats of awards can have in public interest litigation.
[8] The starting point, generally, is that the party who fails with respect to an application should pay costs to the parties who succeed.12
[9] I noted in an earlier costs judgment that public interest litigation should not be thwarted by unwarranted costs awards.13 However, the litigation involved in this case was not public interest litigation and had little implication beyond Poutama and the Pascoes. I found that the appeal did not satisfy r 14.7(e), which requires that the appeal
10 Waitangi Tribunal Report of Te Mana Whatu Ahuru, above n 4.
11 Ngāti Maru Trust, above n 3, at [137].
12 High Court Rules 2016, r 14.2(1)(a).
13 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZHC 871.
must concern a matter of genuine public interest, have merit and be of general importance beyond the interests of the particular unsuccessful litigant. In addition, the unsuccessful litigant must have acted reasonably in the conduct of the proceedings.
[10] I found that the matter was not of general and public importance and also that Poutama had essentially sought to relitigate the cultural issues determined by the Environment Court. This unreasonably added to the costs of appeal.14 I reach the same conclusions in relation to the recall application.
[11] The recall itself does not raise any issues of public interest. I recognise that for Poutama the Waitangi Tribunal report is an important report, and a report of high authority. In the circumstances, the report ultimately did not give rise to grounds for a recall application. However, as mentioned in the recall judgment, there have been recent developments regarding the role of tikanga and the law, which may have implications for the Waitangi Tribunal.15 Given these developments and the release of the report, it was therefore not an abuse of process to bring a recall application, although there was an element of relitigating findings in the other grounds for recall.
[12] In addition, Poutama, as it did in the previous costs application, advanced impecuniosity and acting in accordance with its obligations to the wider hapū and whānau. As I indicated in the earlier costs judgment, there is no evidence on Poutama’s finances before me. The fact that it is a charitable trust does not of itself indicate impecuniosity or hardship. In any event, as the Court said in Foni v Foliaki:16
(a)financial hardship is not an answer to a claim of costs;
(b)costs awards must be at a meaningful level, even against an impecunious party, particularly where the case is found to have lacked merit; and
14 That may well be because Poutama was not legally represented.
15 Recall Judgment of the High Court, above n 1, at [24]. However, that application is not one suitable to decide such a question.
16 Foni v Foliaki [2018] NZHC 3126 at [5].
(c)a sworn affidavit of limited financial means is ordinarily required unless impecuniosity is established through evidence in this substantive proceeding.
[13] Accordingly, I consider that this is a case where costs must follow the event. The case has been categorised as 2B. That is an appropriate category and band for this matter. Poutama has taken no issue with the actual calculations by Waka Kotahi for the costs on that basis.
[14] In the circumstances, I do not consider that the application for recall was such as to warrant an uplift in the costs award. Poutama advanced its arguments carefully and in particular the issue relating to the published Waitangi Report required consideration.
[15] Accordingly, I award costs on a 2B basis, with no uplift, on the application for recall.
Grice J
Solicitors:
Sue Grey Lawyer, Nelson for the Appellants.
Simpson Grierson, Wellington for the First and Second Respondents. Buddle Findlay, Wellington for the Third Respondent.
Atkins Holm Majurey, Auckland for Te Rūnanga o Ngāti Tama Trust.
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