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 successful to the extent that the Tribunal decision in question was quashed. However, Raukawa had to return to the Tribunal to seek leave to participate and establish its special interest. Therefore, Raukawa was only partially successful in this court.

(b)This is public interest litigation and for that reason Wairarapa Moana should not have to bear the full costs.

(c)The matter was initially set down to take half a day but in fact took two days.

(d)Wairarapa Moana was the only contradictor in the proceedings. Without its involvement in that role the Court may have had to appoint an amicus curiae to ensure the issues were properly aired.

(e)Wairarapa Moana acted reasonably and appropriately tested the case based on the statutory wording which had a potential ambiguity. In addition, it raised no additional issues beyond that traversed in the Tribunal.

[9]    Wairarapa Moana therefore submits costs should lie where they fall or alternatively, if an award is to be made, it should be reduced to costs based on a half day hearing.

Relevant principles

[10]   The general rule is that costs are granted to the successful party.4 The Court may refuse or reduce an order for costs where the party claiming costs has failed in relation to a cause of action or an issue which significantly increased the costs of the party opposing.5

[11]   In some cases where costs are sought in matters which have involved important public interest issues, costs have either not been granted to the successful party or have been discounted. That is a matter for the Court’s discretion.6

Analysis

[12]   The applicant seeks no uplift in costs but merely seeks costs based on a straightforward 2B scale basis for one counsel.

[13]   It is clear there was a commercial advantage in Wairarapa Moana excluding Raukawa from the Tribunal hearing. It was a significant benefit to Wairarapa Moana in not having to contend with Raukawa being actively involved, even merely as an interested party with no ability to claim the land in question. The exclusion also extended to other parties who might wish actively participate, including Rangitāne.

[14]   As is the usual position the Waitangi Tribunal did not actively participate. Therefore, the submission that without it there would be no contradictor carries a measure of weight. An amicus curiae might have been appointed to assist the Court without Wairarapa Moana, particularly given that the Attorney-General not only supported Raukawa’s submissions but raised additional matters.

[15]   Accordingly, while Wairarapa Moana did stand to benefit from the decision and it was in its commercial interests to oppose the judicial review, I do consider some recognition should be made for the lack of any other possible contradictors.

4      High Court Rules 2016, r 14.2(1)(a).

5      Rule 14.7(d).

6      See for example New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC).

[16]   Wairarapa Moana raised appropriate points. It did not unduly lengthen the proceedings beyond what would probably have been the case if an amicus had been involved.

[17]   Mr Ferguson for Wairarapa Moana also cooperated with ensuring the matter could be brought on in a timely manner, as well as ensuring what material was required was before the Court in a useful form. He also was able to comment on aspects of the Tribunal procedure and past issues in relation to the matters before the Tribunal, due to his close involvement in these matters. I am therefore of the view that cost decision should recognise this factor as well.

[18]   I do not put much weight on Wairarapa Moana’s submission that Raukawa was only partially successful. The hearing was entirely focused on whether or not Raukawa were entitled to seek to participate as an interested party. The hearing time was taken up with that issue. It was only at the end of the hearing that there was some discussion as to whether it was necessary to remit the issue to the decision to the Waitangi Tribunal to consider Raukawa’s particular special interest. Therefore, it is not a case where the applicant failed in relation to a cause of action or issue which had significantly increased the costs of the opposing party.

[19]   Finally, I turn to Wairarapa Moana’s argument that costs should only be calculated on the basis of a half day hearing, because there was an initial estimate that it would take only half a day but it in fact took something over two days. It became clear shortly into the first day of hearing that the matter would take longer than it had been set down for. The reason was the complexity of the issues and some additional matters which were raised by the parties. The inaccurate estimate cannot be laid solely at Raukawa’s feet. All  parties  were  responsible  for  fixing  the  estimate. Wairarapa Moana’s submissions took the best part of a day alone.

[20]   Nevertheless, as I have noted all parties cooperated in ensuring the matter was dealt with in an efficient manner. It was concluded therefore in a timely manner which enabled the Waitangi Tribunal to continue its hearings.

[21]   Therefore, I consider that a costs award is appropriate. Wairarapa Moana should pay costs. It was acting to its own advantage, albeit the decision involved an element of public interest.

[22]   Nevertheless, I recognise Wairarapa Moana’s involvement as the sole contradictor. This likely avoided the necessity of appointing an amicus in the matter to assist the Court. That would have added to the cost and might have delayed the hearing. Therefore, in my view, there should be some discount for Wairarapa Moana’s involvement, first, in recognition of the public interest element and, secondly, as it was the sole contraindicator. In my view that discount should be 40 per cent. The application recognised that Waiarapa Moana’s involvement both in the public interest and the avoidance of the appointment of an amicus might attract a discount. It suggested 20 per cent. However, in response of the real benefit and contribution to the efficient disposition of these proceedings I consider the higher discount of 40 per cent is a more appropriate figure.

[23]   I see no reason why costs should not be based on the two days of hearing. The schedule 2B costs claimed have not been otherwise contested. Accordingly, I make an order for costs in favour of Raukawa to be based on a two-day hearing to be calculated on a category 2B basis with a discount of 40 per cent for the reasons set out above.

Grice J