Raikes v Hastings District Council

[2023] NZHC 794

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-000061

[2023] NZHC 794

Under

Section 299 of the Resource Management Act 1991

In the matter of

An appeal against a decision of the

Environment Court of an appeal under clause 14(1) of the first schedule to the Resource Management Act 1991

BETWEEN

PETER AND CAROLINE RAIKES

Appellant

AND

HASTINGS DISTRICT COUNCIL

Defendant

AND

MAUNGAHARURU- TANGITŪ TRUST

Interested Party

Hearing:

On the papers

Appearances:

L J Blomfield for Appellant A J Davidson for Respondent

K M Anderson and M J Dicken for Interested Party

Judgment:

14 April 2023

JUDGMENT OF GRICE J

(Costs of Second Counsel)

[1]    The substantive judgment in this matter dealt with an appeal from an Environment Court decision relating to the classification in the Proposed Hastings District Plan of an area of land as a wāhi taonga or “site of significance”.1 The site

1      Raikes v Hastings District Council [2022] NZHC 3075.

RAIKES v HASTINGS DISTRICT COUNCIL [2023] NZHC 794 [14 April 2023]

had been identified by the interested party (MTT), which is the representative body for a collective of hāpu in northern Hawke’s Bay. That party was therefore actively involved in the proceedings supporting the inclusion of the site as a site of significance.

[2]    The appeal from the Environment Court involved issues relating to the Court’s approach to cultural evidence, application of relevant law and case law in its assessment of the cultural evidence, the extent of the site, the Raikes’ own religious beliefs and the adequacy of reasons given by the Environment Court.

[3]    This is a matter in which counsel sensibly agreed to the level of costs which should follow the event. In my judgment of 23 November 2022, I concluded in relation to costs as follows:

Costs

[159] Counsel agreed at the end of the hearing that costs should follow the event on a 2B basis. I make directions accordingly. Orders for costs together with reasonable disbursements on that basis are made in favour of the respondent and interested party against the appellants. If any matters are outstanding, leave is reserved to any party to make submissions by way of memorandum on or before seven days from the date of this decision, with any response to be within a further three days.

[4]    Counsel for the appellant and interested party have recently filed memoranda as an issue has arisen in relation to the sealing of the costs orders. The issue in contention is whether or not the interested party is entitled to certification for second counsel in the sum of $1,195.

[5]    The appellants oppose the certification for second counsel on the basis that this was not a case where the complexity of the proceeding, the length of the hearing, the number of witnesses or the volume of documentation required the involvement of second counsel. The appellants submitted that as they did not require second counsel, neither should the interested party. They submitted that the nature of the particular appeal did not justify requiring the appellants to contribute to the costs of second counsel.

[6]In response, the interested party, MTT, submits:

5.1        The complexity of the proceeding, and importance of the outcome to MTT required second counsel. This appeal is part of a lengthy group of proceedings relating to the recognition of sites of special significance to the Hapū represented by MTT. The site to which this appeal related had been subject to two Environment Court decisions, and another High Court decision prior to the decision to which this order for costs relates. Therefore, the volume of material relevant to this appeal was significant.

5.2        This is heightened by the significance and importance of the matter to MTT as tangata whenua. It is submitted that it was reasonable for MTT to have two counsel appear.

5.3        Preparation for the hearing of this appeal was undertaken twice due to the significantly late request for rescheduling by the appellants 1 working day out from the initial hearing date in May 2022 (it was rescheduled to August). Whilst there is no provision in the High Court Rules 2016 for preparation, the expenditure for MTT of having their counsel prepare twice for a hearing is relevant.

5.4        The second counsel for MTT did not merely attend the hearing, but prepared and presented submissions to an extent which warrants costs for their involvement in the hearing.

5.5        Whilst only one counsel attended the hearing for the Appellants, MTT submit that was at their own choice and counsel did have support from her clients at the hearing. While only one counsel appeared, the Appellants sat with counsel throughout the hearing and participated through instructing counsel throughout the hearing, and by Mr Raikes’ answering questions put to him by Her Honour Justice Grice.

5.6        MTT submit that the nature of this particular appeal does in fact justify requiring the appellants to contribute to the costs of second counsel …

[7]    This appeal occupied a full day of hearing time and involved further written submissions, including submissions filed by the appellants following the hearing seeking to adduce further evidence for my consideration, which required a response by the other parties.

[8]    The issues involved were not straightforward and involved consideration of a reasonable amount of evidence from the Environment Court hearing, particularly in relation to the cultural issues. I accept there was a lot at stake for all parties, including for the interested party, given its role in protecting its cultural position. It took the carriage of the cultural arguments, which occupied the greater part of the hearing. While the respondent participated, it confined itself largely to the process and the planning documents.

[9]    Costs for second counsel must specifically be allowed by the Court. In Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd, Chambers J explained the key question was:2

… whether the nature of this proceeding, given the way the trial was conducted, was such as to justify requiring the losing party to contribute to the winning party’s cost in having a junior counsel present.

[10]   As Woolford J said in Body Corporate S73368 v Otway (No 2), there will normally need to be some unusual feature to the litigation to warrant allowance for second counsel.3

[11]   Each case however must be considered on its own merits. The application for certification for second counsel must be considered in the context of the proceeding. Certification for second counsel is not routine. However, this was not a straightforward or routine matter. That the appellants chose not to brief second counsel does not mean that other parties are unable to have second counsel involved. The question for the purpose of an award of costs is whether it was justified.

[12]   The argument here was focussed and in the hearing there was a concentrated attention on the real issues involved. The time taken in hearing meant it was important that counsel were well-versed in the subject matter and legal arguments as well as being able to quickly locate any relevant material in the case on appeal. The assistance of second counsel in those circumstances was justified and in my view was of assistance to the Court. I consider that a certificate for second counsel is justified. The amount claimed is reasonable in the circumstances.

[13]   Accordingly, I certify for second counsel in the amount claimed for the interested party.

Grice J

2      Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 14 PRNZ 155 (HC) at [21].

3      Body Corporate S73368 v Otway (No 2) [2018] NZHC 1761 at [4].