Remarkables Park Limited v Queenstown Airport Corporation Limited
[2018] NZHC 1959
•2 August 2018
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2017-425-000035
[2018] NZHC 1959
BETWEEN REMARKABLES PARK LIMITED
Appellant
AND
QUEENSTOWN AIRPORT CORPORATION LIMITED
Respondent
Hearing: On the papers Counsel:
R J Somerville QC and B Milo for the Appellant
M Casey QC and C Somerville-Frost for the Respondent
Judgment:
2 August 2018
JUDGMENT OF NATION J AS TO COSTS
[1] In a judgment of 1 March 2018, the appellant (RPL) was unsuccessful in appealing decisions of the Environment Court. The respondent (QAC) seeks costs.
[2] As recorded in a minute of 2 June 2017, the parties agreed the appeal should be categorised as a category 3 proceeding.
[3] QAC seeks costs for all steps of the proceedings on a band C basis. It submits a large amount of time was required for all the steps for which they seek costs. RPL submits QAC had taken a blanket approach in asking for a band C classification for all steps and had not met the onus on it to show why more than a normal amount time was required for each step.
REMARKABLES PARK LIMITED v QUEENSTOWN AIRPORT CORPORATION LIMITED [2018] NZHC 1959 [2 August 2018]
[4] In response, QAC submits that more time than normal was directed at each step of the proceedings. It refers to the way RPL’s notice of appeal had listed 18 alleged errors, resulting in 14 “questions of law” and challenged three substantive decisions dating back to November 2014. It also refers to the concerns it had raised as to the scope of the appeal, as recorded in Mander J’s minute after the first case management conference.
[5] In my judgment, I referred to a number of claimed errors or questions of law as being essentially challenges to factual and evaluative determinations made by the Environment Court. I also referred to a number of respects in which RPL was seeking to challenge determinations and decisions that were not amenable to appeal.
[6] Before the first case management conference, QAC raised a concern that RPL was seeking to challenge factual and evaluative findings made by the Environment Court which were not amenable to appeal. Also, it was raised that there appeared to be a challenge to issues that had been determined by earlier decisions of the Environment Court which had not been the subject of an appeal. As was demonstrated by the judgment ultimately issued, there was merit to QAC’s concerns discussed at the first case management conference.
[7] The errors referred to in the notice of appeal and the claimed questions of law had to be considered against all the decisions that had been made by the Environment Court, as referred to in my judgment. There were six decisions between 25 September 2012 and 31 March 2017. The 18 errors and ultimate 13 questions of law referred to in the notice of appeal were wide-ranging. It took me considerable time to narrow them down to the six areas I dealt with in my judgment.
[8] As a consequence, I accept QAC’s legal advisers would have needed to spend more time than normal for nearly all the steps for which QAC seeks costs. It was unnecessary for QAC, in its submissions on costs (limited, as I directed, to six pages), to identify why that was necessary, given the detailed way in which I had referred to the earlier decisions of the Environment Court in dealing with the questions I had to consider with the grounds of appeal framed as they were.
[9] The time which QAC would reasonably have taken in dealing with the appeal as it was presented would have broadly been consistent with the time that was required of the Court to deal with the appeal.
[10] I consider an allowance of two days for commencement of response to appeal and memorandum for case management conference on a band C basis is reasonable in the circumstances of this appeal.
[11] QAC seeks costs for second counsel in relation to her attendance at the hearing which proceeded by way of telephone conference over the application for leave to adduce further evidence and for an adjournment of the appeal. RPL objects to an allowance for second counsel with regard to that hearing on the basis the applications were relatively straightforward.
[12] I reject that submission. The application had the potential to impact significantly on the future course of the proceedings and the way, if at all, the new evidence might have to be dealt with on the hearing of the appeal. The hearing over whether or not this new evidence was going to be material in a way that justified its admission, potentially, was going to require consideration of various factual matters that had been dealt with in the earlier decisions of the Environment Court. Given the scope of those decisions and the complexity of the factual matters they dealt with, it was reasonable for both counsel to be available to deal with the issues that had to be discussed.
[13] RPL submits there should be no allowance for QAC’s costs in connection with the preparation of the case on appeal because it was RPL who had primary responsibility for that.
[14] I accept the submission for QAC that it was required to review the very extensive documentation included in the case on appeal to consider whether all the material was relevant to the grounds as pleaded. I accept also that the common bundle could have reasonably been much reduced if the grounds of appeal had been limited just to questions of law, as they should have been, and if documents relevant to factual and evaluative determinations of the Environment Court had not been included.
[15] With my knowledge of how the appeal proceeded, of the issues that were raised and the way it had to be addressed, I have been satisfied that more than a normal amount of time would have been required to deal with the particular steps for which costs are sought, with one exception. QAC has sought costs for two days with regard to its opposition to applications seeking adjournment and to adduce further evidence, and three days for preparation of written submissions opposing adjournment and adducing further evidence. On a 3B basis, the allowance for those two steps would be a total of 2.1 days. QAC had a detailed knowledge of the earlier decisions. By the time QAC had to deal with the adjournment/further evidence issues, it would have had a good understanding of the issues being raised on appeal and how it was dealing with them through its initial consideration of the appeal and through its preparation of submissions for the appeal. Costs for those steps are being awarded on a 3C basis. With the benefit of that work, QAC would have been able to respond on these new issues more economically from a time point of view. I consider the costs for steps 23 and 24 should be on just a scale B basis.
[16] I am otherwise satisfied that band C is appropriate for all other steps in the proceedings for which QAC seeks costs.
[17] QAC has also claimed increased costs on the grounds RPL had not heeded Mander J’s direction in a minute to identify the discrete issues of law which were amenable to appeal, had pursued the appeal in relation to findings of fact/matters of evaluation or determinations made in earlier decisions which were not amenable to appeal and had therefore caused QAC to have to commit an unusual amount of time to the preparation of its submissions. Essentially, QAC submit RPL pursued an appeal without merit.
[18] Although there is justification for the criticisms which QAC makes, the consequences for QAC and the work required of it in responding to the appeal because of the way it was advanced by RPL has been recognised through the band C time allocation for nearly all steps in the proceedings and the allowance for second counsel. In these circumstances, I am not making an award for increased costs.
Conclusion
[19] QAC is entitled to costs on a category 3 band C basis for all steps in the proceedings as set out in attachment A to counsel’s memorandum of 29 March 2018 except for items 23 and 24. For those steps, QAC is entitled to costs on a category 3 band B basis. QAC is also entitled to disbursements as approved by the registrar.
Solicitors:
R J Somerville QC, Barrister, Dunedin Brookfields Lawyers, Auckland
Chapman Tripp, Auckland.
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