Protect Aotea v Environmental Protection Authority
[2022] NZHC 2532
•4 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1557
[2022] NZHC 2532
UNDER The Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules IN THE MATTER
of a decision of the Environmental Protection Authority to grant a Marine Dumping Consent under s 62 of the
Exclusive Economic Zone and Continental Shelf Environmental Effects) Act 2012 (“EEZ Act”)
BETWEEN
PROTECT AOTEA
Applicant
AND
THE ENVIRONMENTAL PROTECTION AUTHORITY
First Respondent
PORTS OF AUCKLAND LIMITED
Second Respondent…/2
Hearing: On the papers Appearances:
L Thornton for Protect Aotea
R Enright and R Haazen for Protect Our Gulf Incorporated V Heine QC and T Haradasa for First Respondent
B S Carruthers and P Senior for Second Respondent
Judgment:
4 October 2022
JUDGMENT OF LANG J
[on costs]
PROTECT AOTEA v THE ENVIRONMENTAL PROTECTION AUTHORITY [2022] NZHC 2532 [4 October 2022]
CIV-2021-404-849
UNDERthe Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules
IN THE MATTER of a decision of the Environmental
Protection Authority to grant a Marine Dumping Consent under s 62 of the
Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act)
BETWEEN PROTECT OUR GULF INCORPORATED
Applicant
THE ENVIRONMENTAL PROTECTION AUTHORITY
First RespondentPORTS OF AUCKLAND LIMITED
Second Respondent
This judgment was delivered by me on 4 October 2022 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
[1] In a judgment delivered on 18 July 2022, I dismissed applications for judicial review by Protect Aotea and Protect Our Gulf Incorporated (Protect Our Gulf).1 The applicants challenged a decision by the Environmental Protection Authority (EPA) to grant a marine consent permitting Ports of Auckland Ltd (Ports) to dump dredged sediment from the inner Waitemata Harbour in an area known as the Cuvier Disposal Site (CDS).
[2] The parties have been unable to reach agreement regarding the issue of costs. I am therefore required to determine that issue on the basis of the memoranda counsel have filed.
The arguments
[3] Protect Aotea and Protect Our Gulf contend that there was a large element of public interest in the litigation. It also represented the first and only opportunity they and their supporters had to challenge the EPA’s decision given that it proceeded on a non-notified basis. In addition, the applicants point out that the Supreme Court’s decision in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board (TTR) changed the legal landscape significantly.2 It provided significant guidance regarding the relevance of tikanga-based interests in the context of applications for marine consents under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the Act). That decision was not delivered until after the EPA had granted Ports’ application for marine consent.
[4] Both applicants acknowledge that they did not pursue some of their pleaded grounds of review at the hearing. However, they say this should not result in any increased award of costs against them. They contend that costs should either lie where they fall or that costs should be reduced to reflect the matters to which I have referred.
[5] The EPA contends that the applicants should be required to pay costs. It submits that the applicants should each pay two-thirds of the costs that would
1 Protect Aotea v Environmental Protection Authority [2022] NZHC 1689.
2 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 [TTR].
otherwise be payable on a category 2B basis, together with disbursements as fixed by the Registrar.
[6] Ports takes a firmer approach. It contends that the applicants failed to comply with the Court’s timetabling directions in relation to the filing of affidavits and submissions, and that an award of increased costs should be made to reflect this. It also contends that increased costs are appropriate to reflect the fact that both applicants pursued unmeritorious arguments that were either abandoned at trial or found to have no substance.
Should costs lie where they fall or be reduced?
[7] The party who fails with respect to a proceeding is generally required to pay costs to the party who succeeds.3 However, the Court may decline to make an order for costs, or may make a reduced order, where the proceeding raises a matter of public interest and the party against whom costs are sought has acted reasonably in bringing it.4
[8] I acknowledge that there was potentially an element of public interest in the present litigation, particularly having regard to the principles identified in TTR. However, the grounds of review based on assertions as to tikanga-based interests ultimately failed because none of the groups who supported the applicants in these proceedings responded to Ports when served with the application for marine consent by Ports or to the EPA after receiving correspondence about the application from it. The short point is that they should have responded with their concerns much earlier than they did. Much of the force that this issue may otherwise have drops away for this reason.
[9] Perhaps the strongest element of public interest arises out of fact that Protect Our Gulf contended that the EPA had failed to take into account relevant considerations in assessing the impact of dumping on rare and vulnerable ecosystems and habitats within and around the CDS. By the end of the hearing Protect Our Gulf
3 High Court Rules 2016, r 14.2(1)(a).
4 Rule 14.7(e).
had reduced its argument on this issue to an assertion that the EPA had failed to take into account the effect that dumping would have on protected corals within and around the CDS. This issue was plainly arguable, but I held that the EPA had effectively satisfied the test imposed by TTR in dealing with this issue.5
[10] Taking these matters into account I am not satisfied that these proceedings were of sufficient public interest to displace the general principle that the party who fails with respect to a proceeding should pay costs to the party who succeeds. Nor do I consider that an award of reduced costs is appropriate.
Should an award of increased costs be made?
[11] Rule 14.6 of the High Court Rules 2016 sets out the circumstances in which the Court may make an award of increased costs. It relevantly provides:
14.6 Increased costs and indemnity costs
(1)Despite rules 14.2 to 14.5, the court may make an order—
(a)increasing costs otherwise payable under those rules (increased costs); or
(b)that the costs payable are the actual costs, disbursements, and witness expenses reasonably incurred by a party (indemnity costs).
(2)The court may make the order at any stage of a proceeding and in relation to any step in it.
(3)The court may order a party to pay increased costs if—
(a)the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i)failing to comply with these rules or with 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, documents, or accept a legal argument; or
5 Above n 2, at [48]-[52].
(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
(c)the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or
(d)some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.
(emphasis added)
Failing to comply with timetable directions for filing documents
[12] Both applicants filed affidavits between three and 28 days after the Court directed that this was to occur. In addition, both applicants filed their submissions several days after they were due. This truncated the time within which the respondents were required to file their submissions in opposition to the applications for review.
[13] Whilst unfortunate, I do not consider that the failure to adhere to timetable directions materially impacted on the overall expense of the proceeding. I therefore do not consider an award of increased costs is appropriate to reflect this factor.
Advancing unmeritorious arguments
[14] At the commencement of the hearing, counsel for Protect Aotea advised me that his client did not intend to pursue a ground of review alleging that the EPA’s decision was unreasonable. Similarly, counsel for Protect Our Gulf advised me that his client did not intend to pursue grounds based on failure to take into climate change issues and wrongful use of adaptive management processes.
[15] However, none of these grounds occupied a substantial portion of the submissions prepared by either respondent. They were, in fact, dealt with in a relatively cursory fashion. I therefore do not consider the fact that the applicants
ultimately abandoned these grounds resulted in any material increase in the effort and cost of defending the proceedings from the perspective of either respondent.
[16] In my judgment I found that Protect Aotea’s argument the EPA had failed to have regard to the “protect from pollution purpose” in s 10(1) of the Act had no substance.6 I also found that Protect Our Gulf’s argument the EPA had failed to undertake the test enunciated in TTR was misconceived because that aspect of the Supreme Court’s decision was not declaratory of the law.7
[17] Again, however, I do not consider that either of these issues added materially to the expense of the proceeding. The EPA and Ports were required to address the pollution issue in any event to respond to Protect Our Gulf’s argument that the EPA had failed to give adequate consideration to the effect of dumping on marine ecosystems and habitat. The argument regarding the test enunciated in TTR was of very narrow scope and required no evidence on the part of either respondent.
[18]I do not consider that these factors justify an award of increased costs.
Approach
[19] The issue of costs is complicated in the present case by the fact that, although the two proceedings were never consolidated, they proceeded in tandem from an early stage. The claim brought by Protect Aotea was subject to an initial case management conference on 13 September 2021.8 Thereafter, however, the proceedings were subject to joint case management and the trial encompassed both proceedings. The respondents were only required to prepare one set of submissions dealing with both applications for review.
[20] As a result, I propose to allocate costs on the basis that, apart from the case management conference held on 13 September 2021, the respondents acted in all material respects on the basis that they were defending a single proceeding. However, I consider it appropriate to add an uplift in relation to the preparation of affidavits and
6 Above n 1, at [35].
7 At [38].
8 This was vacated after counsel filed a joint memorandum setting out the directions they required.
submissions. This reflects the fact that the respondents were required to deal with some issues that were unique to each proceeding.
Result
[21]I award costs to the EPA and Ports on a category 2B basis as follows:
(a)Each applicant is to be severally liable to pay one set of costs to each respondent for Step 2 (commencement of defence).
(b)Protect Aotea is to be liable to pay costs to each respondent for Step 10 (preparation for first case management conference on 13 September 2021).
(c)The applicants are each to be severally liable to pay one-half of a single award of costs to each respondent for all subsequent memoranda and appearances at case management conferences.
(d)The applicants are each to be severally liable to pay one-half of a single award of costs to each respondent for Step 30 (preparation of affidavits, lists of issues and authorities) but the costs payable by each for this step are to be increased by 15 per cent to reflect the fact that the affidavits needed to deal with some issues unique to each proceeding.
(e)The applicants are each to be severally liable to pay one-half of a single award of costs to each respondent for Step 32 (preparation for hearing) but the costs payable by each for this step are to be increased by 15 per cent to reflect the fact that the submissions for each respondent needed to deal with some issues unique to each proceeding.
(f)The applicants are each to be severally liable to pay one-half of a single award of costs to each respondent for Step 34 (appearance at trial).
[22] I reserve leave to counsel to seek clarification of the costs payable on individual steps taken in both proceedings if the parties cannot reach agreement regarding the manner in which this judgment is to apply to those steps.
Deferment of payment
[23] Protect Our Gulf has appealed against my decision. It seeks an order deferring payment of costs until such time as the appeal has been determined. This is opposed by the respondents, who point out that the defence of the proceeding has been funded by taxpayers and ratepayers.
[24] I see no basis at this stage on which to make an order deferring payment of the costs that have been ordered. If Protect Our Gulf seeks to advance this issue it should be by written application on notice with supporting evidence.
[25] It is obviously a matter for the EPA and Ports to determine whether they should enforce payment of the costs before the appeal is heard.
Lang J
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