Poutama Kaitiaki Charitable Trust v Taranaki Regional Council
[2021] NZHC 871
•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 871
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 871
[23 April 2021]
JUDGMENT OF GRICE J
(Costs)
[1] This is an application for costs by Waka Kotahi (third respondent) following the unsuccessful appeal against a decision of the Environment Court brought by the appellant.1 The appeal ran for over three days and a number of further submissions were received after the hearing. It involved a number of grounds of appeal, which required consideration of a significant amount of documentation relating to the Environment Court and earlier decisions. The issue in substance related to various consents and approvals for Waka Kotahi to construct a replacement highway through the Mangapepeke Valley to replace a 7.4 kilometre portion of highway over Mt Messenger, which Waka Kotahi considered was no longer safe or fit for purpose.2
[2] The Pascoes own a farm and live in the Mangapepeke Valley and are directly and adversely affected by the highway to be constructed in the valley.
[3] The Poutama Kaitiaki Charitable Trust is a charitable trust set up as a vehicle for Poutama, a Māori group claiming cultural connections to the project area.3 In addition to the grounds of appeal based on cultural issues, there were a number of grounds relating to the adverse effects of the project on the Pascoes, in particular, the location of the Hall Road alternatives to the proposed highway and failing to consider or avoiding mitigating the significant harm on the Pascoe whānau and the environment in general terms.4
[4] The appeal was against an interim decision of the Environment Court. The Environment Court has yet to issue its final decision in the matter.5 The fact that the Environment Court had made an interim decision and not a final decision was also a ground of appeal.
1 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159, (2020) 22 ELRNZ 202 [“Appeal Judgment”].
2 At [1] and [2].
3 Poutama pursued the appeal in relation to the Environment Court’s findings on the cultural connections.
4 Appeal Judgment, above n at 1, at [171].
5 At [53].
[5] The other respondents participating in the appeal, Taranaki Regional Council and New Plymouth District Council as well as Te Rūnanga o Ngāti Tama Trust, have indicated they would not be seeking costs.
Waka Kotahi’s application for costs
[6] Waka Kotahi seeks an award of costs based on a category 2 basis with 70 per cent to be recoverable from Poutama and 30 per cent from the Pascoes. It pointed to the following general principles:
(a)The party who fails with respect to a proceeding should pay costs to a party who succeeds.6
(b)There are no grounds for refusing costs or reducing costs under r 14.7.7
(c)The proceedings have been categorised as 2B for the purpose of costs.8
(d)On a category 2 basis the costs award should be in the sum of $30,592. This includes second and subsequent counsel if allowed by the Court of $3,585.
[7] No issue has been taken with the time allocations or figures set out in the schedule provided by Waka Kotahi in its memorandum as to costs of 8 December 2020.
[8] It also submits that second counsel should be allowed given the nature and complexity of the issues that Waka Kotahi was required to respond to.
[9] In relation to the apportionment Waka Kotahi submits that the Court is able to direct that costs may be apportioned between parties where it is considered
6 High Court Rules 2016, r 14.2(1)(a).
7 Rule 14.7, which provides for the refusal of a reduction in costs in certain circumstances including a matter of public interest where the party opposing costs acted reasonably in conduct of the proceeding: r 14.7(b).
8 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council HC Wellington CIV-2020-443-005, 11 March 2020 in accordance with rr 14.2(b)–(c) and 14.3–14.5 of the High Court Rules 2016.
appropriate.9 Waka Kotahi submits that the majority of the time in the appeal was spent responding to matters that Poutama raised and it is apparent from the case management processes and numerous memoranda that were filed with the Court, as well as the conduct of the hearing, that Poutama occupied most of the Court’s time in relation to the appeal. Waka Kotahi also acknowledged the proposed project traverses the land owned by the Pascoes and they had participated in the proceedings to reflect the impacts on their land. On the other hand the Environment Court found that Poutama had no interest in the project land.
[10] The apportionment sought is 70 per cent from Poutama ($21,414.40) and 30 per cent (or $9,177.60) against Mr and Mrs Pascoe.
Poutama’s response to costs application
[11] Poutama filed submissions opposing costs as did Ms Grey who acted for the Pascoes but as well assisted Poutama in the appeal. Her memorandum opposing costs is for Poutama and the Pascoes.
[12] Poutama in its separate memorandum opposing costs noted that it is registered on the New Zealand Register of Charitable Trusts and exists as a separate legal entity. Its purpose is to represent the tribal council, Taumata Paepae o Poutama. It objects to Waka Kotahi seeking to make the trustees personally liable for costs in the circumstances which “amounts to a personal attack by the Crown on Poutama, Rangatira and Kaitiaki, who are merely carrying out their obligations to the wider Poutama hapū and whānau”.
[13] Ms Grey in her submissions on behalf of the appellants made the points that the Court should exercise its discretion to decline making any costs award in this case because:
(a)The issues and values at stake are extremely important to the appellant. The land is the home and farm of the Pascoes and the ancestral land. For Poutama, including the Pascoe whānau, they are seeking the
9 Maiden v Body Corporate 46112 [2018] NZHC 1219 at [60]; citing Sim’s Court Practice (online loose-leaf ed, LexisNexis) at [HCR14.1.6(b)].
continued “rangatiratanga mana and kaitiakitanga for their tribe” pursuing the appeal.
(b)There is a significant disparity of resources between Waka Kotahi compared to the appellant.
(c)The appellants would have likely qualified for legal aid had there been time for them to work through the process.
(d)The Pascoes are nearing retirement age with “subsistence” type living. They have inadequate funds to pay and would unlikely be able to finance borrowing.
(e)Poutama is a charitable trust operating without public funds to represent the interests of its hapū and whānau. Ngā Hapū o Poutama have become destitute and unable to rely on traditional resources and is in a cycle of poverty and unemployment. A costs award would amount to muru.10
(f)This is public interest litigation and it is important that costs awards do not curtail access to justice.
(g)There is a significant disparity in the way that Waka Kotahi has treated the appellants compared to the adjacent Ngāti Tama landowners who have been compensated for costs.
(h)These processes involved are demanding and complex for lay litigants; there were changes in the plans up to and after the hearing; Waka Kotahi provided incomplete information to the Environment Court, which resulted in the interim decision.
10 Counsel submits that muru means to plunder or confiscate. In tikanga Māori, muru has a rich and layered meaning. Muru is also a ritual redistribution of wealth as compensation or punishment for an offence: Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 395.
(i)Since the hearing there has been a major flood in the Mangapepeke Valley with the result that designated areas for the project are under water. This reinforces concerns by the appellants about the veracity of engineering and other information relied upon by Waka Kotahi to assess and design the project.
[14] In addition Ms Grey submitted that there was an extant recall application, and the matter should be postponed until the decision on the recall had been heard. That decision has now been heard and the recall declined.11
[15] Waka Kotahi filed a reply which, insofar as relevant, noted that the Supreme Court had confirmed that unless there are exceptional reasons, costs should follow the result.12 The appeal does not satisfy the “public interest” exception in r 14.7(e), which requires that:13
(a)The proceeding must concern a matter of genuine public interest, have merit and be of general importance beyond the interests of the particular and successful litigants; and
(b)The unsuccessful litigant must have also acted reasonably in the conduct of the proceedings.
[16] Waka Kotahi further submitted that hardship is not usually regarded as a ground to resist an award of costs in circumstances where the opposite party has been put to unnecessary expense in responding to an application or appeal.14
[17] As a matter of general principle, the starting point is that costs usually follow the event.15 In this case, Waka Kotahi succeeded on all aspects of the appeal.
11 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZHC 326 [“Recall Decision”].
12 Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19]. Recent cases such as Openyd Ltd v Lawrence [2019] NZHC 583 at [4] have confirmed the former r 47(a) referred to in Shirley is the predecessor to the present r 14.2 of the High Court Rules 2016.
13 Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9]; affirmed in New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2013] NZCA 555 at [11].
14 Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7].
15 High Court Rules 2016, r 14.2(1)(a).
[18] Generally, an award of costs should reflect the complexity and significance of the proceeding and should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding.16
[19] In addition, there is a longstanding principle that, insofar as possible, the determination of costs should be predictable and expeditious, which Waka Kotahi also noted in its submission.17
[20] Costs are at the discretion of the Court. The general principles may be departed from in appropriate cases.
[21] For the purposes of r 14.2, proceedings must be classified as falling within one of three categories. In this case, category 2 has been allocated given the proceedings are of average complexity requiring counsel of skill and experience considered average in the High Court.18 The appropriate daily recovery rates, relevant to each category, are specified in schedule 2. Band B is the time allocation band for matters involving a normal amount of time which is considered reasonable.19 Costs may be reduced or refused for a number of reasons in r 14.7:
(a)the nature of the proceeding or the step in a proceeding is such that the time required by the party claiming costs would be substantially less than the time allocated under band A; or
(b)the property or interests at stake in the proceeding were of exceptionally low value; or
(c)the issues at stake were of little significance; or
(d)although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or
(e)the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or
(f)the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
16 Rule 14.2(1)(b) and (c).
17 Rule 14.2(g).
18 Rule 14.3.
19 Rule 14.5.
(i)failing to comply with these rules or a direction of the court; or
(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii)failing, without reasonable justification, to admit facts, evidence, or documents, or accept a legal argument; or
(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or
(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or
(g)some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.
[22] In Foni v Foliaki, Muir J noted that the abatement of costs for personal circumstances will not typically be justified and should be reserved for exceptional circumstances,20 and summarised the position, where a claim of hardship or impecuniosity is made, as:21
(a)financial hardship is not an answer to a claim for a costs award;22
(b)costs awards must be made at a meaningful level, even against an impecunious party, particularly where the case is found to have lacked merit;23 and
(c)there is a preference for evidence of limited financial means to be provided in the form of a sworn affidavit (where this is not already established in the substantive proceedings).24
20 Foni v Foliaki [2018] NZHC 3126 at [11].
21 At [5]:.
22 Chesterfields Preschools Ltd v Commissioner of Inland Revenue, above n 14, at [7].
23 Te Whare o te Kaitiaki Ngahere Inc v West Coast Regional Council [2014] NZHC 2969 at [16]; and Tuck v Keedwall [2016] NZHC 794 at [11].
24 Lowe v Auckland Family Court [2017] NZHC 656 at [5]; and Craig v Keith [2017] NZHC 2664, [2017] NZFLR 899 at [22].
Analysis
[23] Poutama in its submissions emphasises that it is a charity and its represents the interests of Poutama whānau and hapū.25 In terms of analysing those submissions against the established principles for costs, such a submission should fall to be considered both under impecuniosity and public interest proceedings.
[24] In relation to impecuniosity there was no financial information in relation to Poutama’s position produced. Being a charity is not a basis for declining costs. As noted above, impecuniosity, in any event, will not be an effective ground to oppose costs in cases where the opposite party has been put to unnecessary expense in responding to an application or appeal.
[25] In this case, even if I accepted that Poutama was impecunious (and there is no evidence before me of that), I do not consider that the circumstances warrant declining or reducing the award of costs. Waka Kotahi has been put to significant expense. Much of the time spent on the appeal in relation to Poutama was concerning an attempt to relitigate the cultural findings of the Environment Court. The hearing ran for longer than anticipated due to the extensive submissions by Poutama. Understandingly Poutama were anxious to make sure “no stone was left unturned” in its appeal, nevertheless the manner it approached the appeal and the fact that it was not legally represented, although Ms Grey did assist as far as possible on legal matters at the hearing, did put all parties to unnecessary expense throughout both the case management phases and the hearing of this appeal.
[26] In the circumstances I do not consider other hardship or charitable status is a reason to decline or reduce costs in this matter.
[27] The second issue Ms Grey raises on Poutama’s behalf, is that of public interest. I recognise that public interest litigation should not be thwarted by unwarranted cost awards. However, the litigation involved here was not in the public interest. It may
25 Poutama also made the submission that awarding costs would amount to muru, which is a form of social regulation in tikanga Māori. Tikanga, as the first law in Aotearoa (Ngawaka v Ngāti Rehua- Ngātiwai Ki Aotea Trust Board [2021] NZHC 291 [“Ngawaka”] at [2]), is being recognised in the Courts as a legitimate source of law. However, this argument was not developed in the present application.
have been in the interests of Poutama and the Pascoes but had little implication beyond their respective positions. The appeal does not satisfy the “public interest” exception in r 14.7(e), which requires that the matter must concern a matter of genuine public interest, have merit and be of general importance beyond the interests of the particular unsuccessful litigant. Secondly, the unsuccessful litigant must have acted reasonably in the conduct of the proceedings. In this case, I do not consider the matter was one of general and public interest nor did it have general importance beyond the interests of the particular unsuccessful litigant. I am also of the view that the approach of Poutama wanting to relitigate the cultural issues unreasonably added to the costs of the appeal, both during the case management stage and at the hearing. Accordingly, I do not consider the public interest exception applies.
[28] In relation to the claims made on behalf of the Pascoes relating to their financial circumstances, there is no evidence to support those submissions. Nor am I in a position to assess whether they would have qualified for legal aid.
[29] Accordingly, I do not consider that “financial hardship” is made out and nor is it a relevant factor in this case. The issues on the appeal were wide ranging and required responding to in some detail.
[30] The other issues that Ms Grey raises on behalf of Pascoes and Poutama relate to the important issues at stake for them, the complicated Resource Management Act 1990 procedures, the extensive planning and changes made even during the hearing and after the hearing, and the fact that it was an interim decision. These do not go to costs. I accept this is an important matter for the appellants, however, unless the matter is a one of public interest, there should be no impact on the award of costs. It does not displace the general principle that costs follow the event and should be predictable and expeditious.
[31] The complicated resource management processes and ongoing changes certainly have been difficult for the parties to grapple with. However, the appeal was focused on a number of issues and it is that appeal that I must consider in the context of this costs application. Therefore, those factors do not weigh in the assessment of costs, nor does the fact that it was an appeal against an interim decision.
[32] The other matter raised by Ms Grey was that there had been a recent flood in the Mangapepeke Valley which she submitted reinforced concerns by the appellants about the veracity of engineering and other information relied on by NZTA to assess and design the project. That is a matter that goes to the substantive issues dealt with on the appeal. It was also raised in the recall. It has no bearing on costs in relation to the appeal.
[33] Accordingly, I am not satisfied that there is reason to depart from the usual principle that costs follow the event and should be predictable and expeditious. It is appropriate costs be awarded on the 2B basis in favour of the Waka Kotahi against the joint appellants.
[34] Waka Kotahi has sought an apportionment of the costs as to 70 per cent against Poutama and 30 per cent against the Pascoes. While Poutama did take additional time and its approach both prolonged the hearing and unnecessarily added to the costs involved in the case management processes, I do not consider this is an appropriate case to apportion the costs. First, Poutama and the Pascoes (although Ms Grey acted for the Pascoes) largely conducted the appeal jointly. Poutama conducted most of the case management processes on behalf of both appellants. Ms Grey was not involved until closer to the hearing. Secondly, Ms Grey’s submissions are on behalf of both Poutama and the Pascoes. There was no submission in relation to the apportionment sought.
[35] In the circumstances I see no reason other than to award the costs jointly and severally in terms of r 14.14.26
[36] I consider in the circumstances that the claim by Waka Kotahi for second counsel is appropriate. The issues on appeal were wide ranging and reference to a considerable number of documents. The case on appeal ran to many volumes. It was prepared by Waka Kotahi in an electronic version duly hyperlinked. This greatly assisted the Court. Preparation of the case on appeal would likely have been a very difficult task for the appellant. Second counsel was also justified in that he conducted part of the argument. However even if that were not the case the volume of documents
26 High Court Rules 2016, r 14.14.
and the range of issues justified second counsel in this case. The claim for second counsel is allowed.
Conclusion
[37] The appellants are ordered to pay costs on the 2B basis, in terms of the schedule provided in Waka Kotahi’s submissions dated 8 December 2020, totalling $30,592 together with reasonable disbursements.
Grice J
Solicitors:
Sue Grey Lawyer, Nelson for the Appellants.
Simpson Grierson, Wellington for the First and Second Respondent. Buddle Findlay, Wellington for the Third Respondent.
Atkins Holm Majurey, Auckland, for Te Rūnanga o Ngāti Tama Trust.
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