Rongotai Investments Limited v Land Valuation Tribunal

[2020] NZHC 730

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-662

[2020] NZHC 730

IN THE MATTER

of the application for judicial review of a Land Valuation Tribunal hearing in respect of objections under the Rating Valuations Act 1998 and the Land Valuation Proceedings Act 1948

UNDER THE

Judicial Review Procedure Act 2016

BETWEEN

RONGOTAI INVESTMENTS LIMITED AND RONGOTAI ESTATES LIMITED

Applicants

AND

LAND VALUATION TRIBUNAL

First Respondent

AND

2468 LIMITED

Second Respondent

AND

BUNNINGS LIMITED

Third Respondent

AND

LYALL BAY PROPERTIES LIMITED

Fourth Respondent

AND

WELLINGTON INTERNATIONAL AIRPORT LTD

Fifth Respondent

AND

WELLINGTON CITY COUNCIL

Sixth Respondent

AND

ATTORNEY-GENERAL

Seventh Respondent

AND

NZ CASH FLOW CONTROL LIMITED

Eighth Respondent

Hearing: On the papers

RONGOTAI INVESTMENTS LIMITED v LAND VALUATION TRIBUNAL [2020] NZHC 730 [8 April 2020]

Appearances:

S Mills QC and M R Wolff for Applicants No appearance for the First Respondent

K P Sullivan for the Second, Fifth and Eighth Respondents S V McKechnie and J R Meager for the Third Respondent No appearance for the Fourth Respondent

No appearance for the Sixth Respondent D Jones for the Seventh Respondent

Date:

8 April 2020

JUDGMENT OF COOKE J

(Costs)

[1]    The respondents who successfully opposed the applicants’ application for interim orders now seek costs. In my judgment dismissing that application I set out a preliminary view that the opposing respondents were entitled to costs on a 2B basis, but whether that should be two costs awards, or a single costs award to be shared was a matter to be addressed.1

[2]    The third respondent (“Bunnings”) and the parties represented by Mr Sullivan (the second, fifth and eighth respondents) each now seeks costs on a 2B basis. The applicants (“Rongotai”) oppose arguing that there should either be no costs award, or that more limited costs should be awarded. It is accepted that any costs awarded should be calculated on a 2B basis.

[3]    The memorandum of counsel for Rongotai raises questions of principle concerning the award of costs in relation to judicial review claims. In the circumstances I will address those principles first, and then determine the appropriate outcome in this case.

Costs in judicial review

[4]    Claims for judicial review can raise distinct costs issues that may not be expressly addressed by the detailed costs rules in Part 14 of the High Court Rules

1      Rongotai Investments Ltd v Land Valuation Tribunal [2019] NZHC 3040 at [36].

2016. Given that there is potentially a greater need for the application of the discretion under r 14.1 when determining the appropriate costs outcome. The principles set out in r 14.2, and the balance of the rules set out in Subpart 1 of Part 14, nevertheless provide the starting point for the assessment.

[5]    In a classical judicial review challenge to the exercise of a statutory power of decision by a governmental body, the active respondent will normally be the decision- maker.2 But other parties may wish to participate in the proceedings because the challenge affects their interests. They can be involved as named respondents, or participate in other ways such as interested parties. Precisely how they are involved, and whether they are involved as a named respondent, is a matter for judicial determination.3 Often such parties will be supporting the decision of the decision- maker, although that is not always the case. The Court is often assisted by the participation of such parties, and in any event such parties may have distinct interests that warrant their participation.

[6]    An issue can emerge for such cases if the judicial review claim is not successful, and all named respondents seek costs. That can be seen as potentially unjust, particularly if an applicant for review faces multiple costs claims, yet would only be entitled to a single award if successful. The right of access to the court to pursue judicial review is a fundamental one, recognised by s 27(2) of the New Zealand Bill of Rights Act 1990. It is features of this kind that have resulted in the practice in England and Wales that usually only one award of costs will be awarded in an unsuccessful claim for judicial review.4 In New Zealand there is no such well- established practice — it is a matter of applying the discretion in r 14.1. Additional respondents who support a decision-maker can be awarded costs, or receive a partial award of costs, depending on the circumstances.

2      The appropriate parties are applicants and respondents, not plaintiffs and defendants – see s 8(2) and s 9 (1) of the Judicial Review Procedure Act 2016.

3      See the authorities summarised in Stakeholders in Methyl Bromide Reduction Inc v Environmental Protection Authority [2019] NZHC 3842 at [32].

4      See Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note) [1995] 1 WLR 1176 (HL) at 1178 per Lord Lloyd; and R (Smeaton) v Secretary of State for Health (No 2) [2002] EWHC 886 (QB), [2002] 2 FLR 146 at [34]-[35].

[7]    Not all judicial review claims are of this character, however. Some claims may involve challenges to decisions made by bodies exercising judicial, or quasi-judicial functions in underlying proceedings.5 A judicial review challenge advanced in this context will not usually involve the decision-maker actively defending the decision. The position is analogous to a subsequent appeal of decisions of such tribunals or other bodies to the High Court.6 The decision-maker does not usually actively defend the decision as this would involve it entering the fray.7 The parties to the underlying proceedings will be the active respondents for such appeals and judicial review claims. This is reflected in s 9 of the Judicial Review Procedure Act 2016, as all parties to an underlying proceeding are required to be named as respondents.8 Decision making bodies can nevertheless be permitted to appear and make submissions in such cases when there are issues of principle, such as the interpretation of that body’s statute, in issue. These cases are closer in kind to the normal civil proceedings regulated by the detailed rules in Part 14. These principles generally apply notwithstanding the different provisions that regulate the involvement of parties.9

[8]    There are various other potential contexts in which judicial review claims are advanced which do not fit neatly into either the categories described above. That is a further reason why the discretion contemplated by r 14.1 may be of greater relevance in determining costs in judicial review claims. The points made above involve generalisations, but they are nevertheless important underlying principles.

Application in the present case

[9]    Rongotai’s first argument here is that costs should not be awarded at all as the true respondent to the claim was the Land Valuation Tribunal itself which does not seek costs.

5      One way of thinking of the difference is that the first category involves decisions made by the executive branch of government, and the second the judicial branch.

6      See New Zealand Paper Mills Ltd v Otago Acclimatisation Society [1992] 1 NZLR 400 (CA) at 403; Fonterra Co-operative Group Ltd v Grate Kiwi Cheese Co Ltd (2009) 19 PRNZ 824 (HC).

7      See New Zealand Engineering Industrial Union of Workers v Court of Arbitration [1976] 2 NZLR 283 at 284 (CA); and Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27].

8      That sub-section does not apply when there are no formal “proceedings” – see Rabson v Judicial Conduct Commissioner [2019] NZHC 2279 at [21].

9      See Environment Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZSC 41 at [12]–[13].

[10] The Tribunal itself did not participate in the application because it would not likely have been appropriate for it to do so. When the Attorney-General appeared to advance submissions I asked counsel to explain his role. Counsel said that this was done because the application involved allegations relating to a judicial officer. His participation was on that basis. But the Attorney-General does not fulfil the role of defending the substantive decisions of the Tribunal. As described at [7] above, it is the parties to the underlying proceedings that are the active respondents. And it was the opposing respondents who took on that role here, and they are entitled to seek costs accordingly. For that reason, I reject Rongotai’s first submission.

[11]   Counsel for Rongotai makes the related point that the criticisms that were the subject matter of the application involved criticisms of the Tribunal rather than claims against any of the other respondents. That may be true, but the Court only awards costs against judicial officers in rare circumstances.10 And in any event costs are awarded for the costs of the proceedings, and here the respondents who seek costs do so in relation to their expenditure in actively opposing the orders sought.

[12]   Rongotai further argue that their application raised issues relevant to the public interest, and accordingly no costs should be awarded against them, or any such costs award should be reduced. Such an argument is properly assessed in accordance with the principles referred to in r 14.7(e). I do not accept that costs should be eliminated, or reduced on that basis. The underlying proceedings concern the value of land, and whilst the judicial review challenge, and the application for interim relief focus on allegations of bias and pre-determination, the underlying subject matter involves distinctly commercial matters. I accept that the matters raised in the challenge suggest that the Tribunal acted in an unorthodox way in a number of respects, and that for this reason Rongotai has an arguable case that the Tribunal has acted unfairly or with apparent bias/pre-determination. But notwithstanding its respectable arguments, the application for interim orders was unsuccessful, and a key principle of the costs rules is that the unsuccessful party should pay the costs of the successful party.

10     See N v District Court of New Zealand [2020] NZHC 252, citing Coroner’s Court v Newton [2006] NZAR 312 (CA).

[13]   The most difficult question is whether Rongotai should meet more than one award of costs. The award of costs in the circumstances here is analogous to the costs awards that might be expected on an appeal of the Tribunal to this Court. There may remain potential differences given there may be more than one appeal, and distinct issues may arise in such appeals for appellants and respondents. But the position is nevertheless analogous.

[14]The relevant rule to apply is r 14.15 which provides:

14.15   Defendants defending separately

The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—

(a)several defendants defended a proceeding separately; and

(b)it appears to the court that all or some of them could have joined in their defence.

[15]   Here the second, sixth and eighth respondents were represented by one counsel, but Bunnings was separately represented. Both groups seek costs. In Independent Māori Statutory Board v Auckland City Council Wylie J said of this rule when awarding one set of costs to be shared between two respondents to an appeal:11

[8] As the Court has previously noted, the policy behind the rule is to minimise costs by shortening hearings where a joint defence can reasonably be expected. The rule suggests a policy which requires the Court to exercise some caution in awarding costs, without more, in favour of multiple parties, particularly when there is some overlap or community interest in the litigation position of the parties seeking costs.12

[16]   Here Bunnings had much the same interest as the three respondents who were jointly represented. It may well have wished to be separately represented, in part because some of the unorthodox steps taken by the Tribunal were associated with the stance taken by Bunnings before the Tribunal. But that does not mean that Bunnings should necessarily be entitled to an additional costs award.

11     Independent Māori Statutory Board v Auckland City Council [2017] NZHC 678 at [8].

12     Norfolk Trustee Co v Tattersfield Securities Ltd HC Auckland CIV-2004-404-3668, 30 March 2005 at [51].

[17]   I have nevertheless decided that two awards of costs should be made. The respondents who opposed the interim orders sought by Rongotai had significant interests at stake. The orders sought were to prevent the Tribunal continuing with the scheduled hearings which would have involved significant disruption to them. Each respondent also needed to carefully consider their position given that the unorthodox ways in which the Tribunal had proceeded. That gave rise, and continues to gives rise, to a risk that this Court may order that the Tribunal’s decisions need to be set aside because of the grounds of apparent bias and pre-determination raised. It is also relevant that the application for interim orders was made with some urgency, thereby reducing the prospect of the respondents being able to organise themselves to present a single opposition, even if they could agree on a joint stance on the underlying points that Rongotai was advancing. Given those circumstances, therefore, it was not unreasonable for there to be some separate representation. I also take into account the costs claims are for relatively modest amounts.

[18]   I therefore conclude that each of the claims for costs should be allowed as claimed.13

Cooke J

Solicitors:

Morrison Kent, Wellington for Applicants

Port Nicholson Chambers, Wellington for Second, Fifth and Eighth Respondents Simpson Grierson, Wellington for Third Respondent

Crown Law, Wellington for Seventh Respondent

13     The exception is the third respondent’s claim for sealing the order, and for the filing fee for sealing the order. That is only allowed if that step has been taken, which may not have been necessary.