Raukawa Settlement Trust v Waitangi Tribunal - [2019] NZHC 1438

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-903

[2019] NZHC 1438

BETWEEN
RAUKAWA SETTLEMENT TRUST

Applicant

AND

WAITANGI TRIBUNAL

First Respondent

AND

ATTORNEY-GENERAL

Second Respondent

AND

WAIRARAPA MOANA INCORPORATED

Third Respondent

AND

RANGITANE TU MAI RA TRUST

Fourth Respondent

AND

NGĀTI KAHUNGUNU KI WAIRARAPA TAMAKI NUI-A-RUA SETTLEMENT

TRUST
Fifth Respondent

On the papers

Counsel:
B J R Keith for Applicant

V Hardy and C Tyson for Second Respondent J Ferguson and N Milner for Third Respondent

R Siciliano and K Katipo for Fourth Respondent

Judgment:

21 June 2019

JUDGMENT OF GRICE J

(Costs)

[1] Raukawa Settlement Trust (Raukawa) seeks costs following a successful application for judicial review in relation to a decision of the Waitangi Tribunal.1

1 Raukawa Settlement Trust v Waitangi Tribunal [2019] NZHC 383.

RAUKAWA SETTLEMENT TRUST v WAITANGI TRIBUNAL [2019] NZHC 1438 [21 June 2019]

Raukawa was supported in its argument by the Attorney-General (second respondent) as well as Rangitāne Tū Mai Rā Trust (Rangitāne, fourth respondent). The Attorney-General took additional grounds in support of the judicial review.

[2] The Waitangi Tribunal (first respondent) did not participate in the argument. The only party opposing the application for judicial review was Wairarapa Moana Inc (Wairarapa Moana, third respondent) who was the only contradictor.

[3] These proceedings started life in November 2018 when Raukawa sought an urgent hearing immediately before Christmas for an interim injunction. In summary, these matters related to Raukawa having been excluded from participating Waitangi Tribunal proceedings as an interested party. Its exclusion was based on the interpretation of wording in its Settlement Act under consideration. That wording was also included in at least 50 other Settlement Acts. Therefore, this decision was likely to have implications in relation to other resumption applications.2

[4] As the Waitangi Tribunal needed to proceed with its hearing in a timely manner, the parties agreed it would be a more effective use of this Court’s time if the matter was treated as a final application for judicial review, rather than dealt with on an interim basis.

[5] The matter was therefore set down for hearing as a judicial review application.3 It became obvious at the outset of the hearing that further time beyond the original estimate of a half day would be required. As it happened, the matter took two days of hearing time. The Court process, was considerably truncated with the parties co- operating on the documentation required.

[6] The judicial review application was successful to the extent that the Waitangi Tribunal decision was quashed on the basis that the Tribunal had misinterpreted the relevant legislative provisions. The matter was remitted back to the Tribunal for further consideration.

2 At [10].
3 Raukawa Settlement Trust v Waitangi Tribunal HC Wellington CIV-2018-485-902, 26 November 2018 (Minute).

Costs application

[7] Following judgment Raukawa indicated it intended to seek costs against Wairarapa Moana. No other party sought costs.

[8]Wairarapa Moana resists the application for costs on the basis:

(a)Raukawa was only…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 1438
Decision Date: 21 June 2019

CaseChat Overview and Summary

The Raukawa Settlement Trust sought an order for costs following a successful judicial review application against the Waitangi Tribunal. The Trust had sought to participate in proceedings before the Tribunal as an interested party but had been excluded. The Trust sought to have the Tribunal's decision quashed and to be remitted back to the Tribunal for reconsideration. Wairarapa Moana opposed the application for costs on the basis that the Trust was only partially successful, that the matter involved public interest litigation, that the matter had taken longer than anticipated and that Wairarapa Moana had acted appropriately and had provided a useful service as the sole contradictor. Grice J rejected Wairarapa Moana's arguments and ordered that Wairarapa Moana pay costs on a two-day basis with a 40 per cent discount. The Court accepted that Wairarapa Moana's involvement in the case was beneficial as it avoided the need to appoint an amicus curiae, and that the decision had a public interest element. However, the Court found that Wairarapa Moana had acted to its own commercial advantage and that the Trust was successful in the proceeding.

The Court found that the Trust was entitled to costs on the basis of a two-day hearing. The Court noted that Wairarapa Moana's submissions had taken up the best part of a day. The Court also found that Wairarapa Moana had acted reasonably and appropriately in raising the points it did. However, the Court held that Wairarapa Moana's involvement in the case was not sufficient to warrant a complete waiver of costs. The Court found that a 40 per cent discount was appropriate to reflect Wairarapa Moana's involvement in the proceedings.

Orders