Property Rights in New Zealand Incorporated v Manawatu-Wanganui Regional Council

[2012] NZHC 2430

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2012-454-49 [2012] NZHC 2430

UNDER  the Resource Management Act 1991

BETWEEN  PROPERTY RIGHTS IN NEW ZEALAND INCORPORATED Appellant

ANDMANAWATU-WANGANUI REGIONAL COUNCIL

Respondent

Counsel:         M W Plowman with P J Chumun for Appellant

J W Maassen for Respondent
P R Gardner for Federated Farmers of New Zealand

Judgment:      19 September 2012

JUDGMENT OF THE HON JUSTICE KÓS (Costs)

[1]      My judgment of 8 June 2012 dismissed PRINZ’s appeal from a decision of the Environment Court holding that regional councils have statutory authority to make rules to control land use for the purpose of maintaining indigenous biological diversity.

[2]      I also determined that the respondent Council was entitled to costs.  If these could not be agreed, memoranda could be submitted.  The parties are not agreed on costs.  Memoranda have indeed been submitted.

[3]      The Council  seeks  indemnity costs  in  accordance with  High  Court  Rule

14.6(4)(a), (b) and (f).   That is, it says that PRINZ has acted improperly or unnecessarily in the proceeding, ignored or disobeyed orders or directions, and there

PROPERTY RIGHTS IN NEW ZEALAND INCORPORATED v MANAWATU-WANGANUI REGIONAL COUNCIL HC PMN CIV 2012-454-49 [19 September 2012]

is good reason justifying making order for indemnity costs.  Specifically the Council points to PRINZ:

(a)       commencing the appeal knowing it had been struck off the Register of

Incorporated Societies in April 2008;

(b)“improperly continuing” its argument by way of appeal “having previously conceded the meaning of s 30(1)(ga) before the Environment Court”;

(c)      failing to comply with standard appeal directions in relation to the filing of points on appeal and the service of documents; and

(d)having one of the Council’s own councillors, Mr Plowman, appearing as a representative for PRINZ before the High Court.

[4]      In response PRINZ submits that it did not act vexatiously, that its change of position in relation to the meaning of “methods” in s 30(1)(ga) was a small portion of  the  claim  only,  and  that  the  proceedings  “represent  part  of  the  democratic process”.

Ruling

[5]      I am satisfied that this is not a proper case in which to award indemnity costs. PRINZ is in effect a litigant in person in these proceedings.  It has blundered about in the way that litigants in person often do.   Inexperience,  and to some extent incompetence, may explain its erratic argument on the application of s 30(1)(ga).  It also explains its procedural failures in terms of compliance with the schedule 6 standard appeal directions.

[6]      The case advanced by it on appeal was certainly arguable.  I am sympathetic to PRINZ’s submission that taking the point was part of the democratic process. Having lost, PRINZ must pay costs, but there is no warrant for costs beyond the norm.

[7]      I note two further points.  First, the conduct of Mr Plowman in appearing for PRINZ is not on its own terms a basis for ordering indemnity or increased costs. While unusual, and no doubt aggravating to the Council, it did not appear to raise any objectionable conflict of interest, and no such point was taken at the hearing. That indeed is exactly part of the “democratic process”.

[8]      Secondly, I might have considered an award of increased costs to the extent that non compliance by PRINZ resulted in additional work and filing required of the Council.     However,  PRINZ  eventually  got  the  documents  together  in  some semblance of order, and the Council was not put to great inconvenience or any cost in this respect.  The Council has not set out in its submissions any specific basis for an order of increased costs along these lines, and accordingly I propose to make no such order.

Result

[9]      Costs ordered according to scale, category 2 band B, $2,256, together with disbursements to be fixed by the Registrar.

Stephen Kós J

Solicitors:

Cooper Rapley, Palmerston North for Respondent

And to:

Donald Coles, RD2, SH 22, Huntly, Appellant

Federated Farmers of New Zealand, 159 Khyber Pass, Auckland