Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council
[2023] NZHC 862
•20 April 2023
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2021-425-73
[2023] NZHC 862
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for review
BETWEEN
ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INC
Applicant
AND
SOUTHLAND DISTRICT COUNCIL
First Respondent
AND
NEW BRIGHTON COLLIERIES LIMITED
Second Respondent
Appearances: A W McDonald and Y Downing for Applicant
M G Conway and H P Harwood for First Respondent
R J Gordon and K R Walker-Clements for Second RespondentJudgment:
20 April 2023
(Determined on the papers)
JUDGMENT OF OSBORNE J
(Costs)
This judgment was delivered by me on 20 April 2023 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INC v SOUTHLAND DISTRICT COUNCIL [2023] NZHC 862 [20 April 2023]
Introduction
[1] Forest & Bird unsuccessfully challenged a decision of Southland District Council (SDC), under the Crown Minerals Act 1991, to grant an exploration permit to New Brighton Collieries Ltd (New Brighton).1 Costs were reserved, with written submissions ordered should counsel be unable to agree. In the absence of memoranda, Forest & Bird was to pay each of the respondent’s costs on a 2B basis, together with reasonable disbursements.2
[2]The parties have filed memoranda in relation to costs.
SDC’s position
[3] SDC applies for costs on a 2B basis with a 25 per cent uplift plus disbursements and verification for second counsel. SDC submits the applicant’s claim was unmeritorious3 and unfocused on the actual decision that was made — an access arrangement for exploration purposes. This was not a climate change decision. SDC further states that Forest & Bird unreasonably rejected an offer of settlement in the form of a letter dated 22 December 2021 from SDC’s solicitors to Forest & Bird’s solicitors (Letter).4
[4] SDC states Forest & Bird cannot claim to be representing the wider public interest as opposed to the views of some members of the public. The fact that SDC’s ratepayers bear the burden of such litigation would indicate it is in the public interest that SDC recover ratepayer funds.5 Where the applicant is an experienced litigant, as Forest & Bird is, they should be aware of the costs regime provided for in the High Court Rules 2016 and the possible consequences of substantial costs being ordered if unsuccessful.6
1 Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council [Royal Forest & Bird] [2023] NZHC 399.
2 At [179]. High Court Rules 2016, Category 2 under r 14.3(1) and band B under r 14.5(2).
3 Invoking the High Court Rules 2016, r 14.6(3)(b)(ii).
4 Invoking r 14.6(3)(b)(v).
5 Coro Mainstreet v Thames-Coromandel District Council [2013] NZHC 1527.
6 Aotearoa Water Action Incorporated v Canterbury Regional Council [2021] NZHC 48 at [44], [58].
[5] SDC refers to Friends of Houghton Valley Inc v Wellington City Council (Houghton), where this Court imposed a 25 per cent uplift following unsuccessful judicial review proceedings where a settlement offer was made.7
New Brighton’s position
[6] New Brighton cites the principle that costs follow the event, unless there are exceptional reasons to the contrary.8 Because Forest & Bird’s case failed completely, costs must follow in favour of the respondents.
[7] New Brighton stresses the agreement Forest & Bird opposed was for exploration purposes, entered in strict accordance with the Crown Minerals Act 1991 regime (CMA). Additionally:
(a)Forest & Bird knew exploration had concluded by August 2021, with the term of the agreement itself expiring in June 2022;
(b)Forest & Bird knew that no access agreement for mining purposes was ever concluded, with only an agreement in principle (subject to negotiation) being in place; and
(c)Forest & Bird knew that, if any mining were to take place in future, New Brighton would need a resource consent for this, with that process occurring on a publicly notified basis.
[8] New Brighton submits Forest & Bird should have waited for a “real” outcome from the long-concluded exploration activity (if such eventuated, before Forest & Bird exercised its rights to oppose.
[9] New Brighton submits that Forest & Bird is a seasoned applicant, having been party to 83 court judgments in 37 separate proceedings. New Brighton contends such parties should not repeatedly be able to use the courts for their own purposes without
7 Friends of Houghton Valley Inc v Wellington City Council [2016] NZHC 880.
8 See High Court Rules, r 14.2 and Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].
being subject to normal costs consequences. New Brighton alleges that Forest & Bird has already funded the litigation by third-party donations and should not shrink from subsequent costs obligations.
[10] New Brighton submits Forest & Bird acted unreasonably in not accepting the offer in the Letter.
[11] Forest & Bird did not oppose New Brighton’s participation in the proceeding having served documents on New Brighton and consented to the service orders under r 1.8 High Court Rules.
[12] New Brighton challenges Forest & Bird’s request for costs on the strike-out application on the basis that this Court has previously ruled that costs should lie where they fall in relation to that application.
[13]New Brighton applies for costs to be fixed on a scale 2B basis.
Forest & Bird’s position
[14] Forest & Bird invokes r 14.7(e) High Court Rules, submitting that (despite their lack of success) the proceeding was in the public interest so that costs should not be awarded. Forest & Bird also seeks costs from New Brighton on its interlocutory application for strike out.
[15]Forest & Bird submits the following:
(a)access to the courts for a genuine party is not to be denied lightly;9
(b)discretion as to costs is to be exercised in the interests of justice, with public interest considerations accounted for;10
9 Te Whare O Te Kaitiaka Ngahere Inc Society v West Coast Regional Council [Te Whare] [2015] NZCA 356 at [26].
10 Te Whare, above n 9 at [27].
(c)there is a reluctance to make an order against a public interest litigant because the risk of costs may impede access to justice and the representation of the public interest;11 and
(d)the absence of legal aid for non-criminal environmental cases and the potential for adverse cost consequences can have a significant “chilling effect” on public interest environment cases making it to Court.12
[16] Forest & Bird asserts it operates as a watchdog of the public interest, with no private or pecuniary interest in this proceeding. The role of such entities is recognised by the Court.13 Forest & Bird notes that the Court did not find any of its arguments to be fundamentally unmeritorious. New Brighton decided to abandon its initial strike out application.
[17] Forest & Bird viewed SDC’s Letter as an invitation to walk away, not an offer, and incorrect as a matter of law regarding its offer to not execute the access agreement until proper resource consents were obtained by New Brighton. The Court of Appeal has confirmed that increased costs will not be awarded where “walk away” propositions with nothing more are rejected prior to trial.14
[18] Forest & Bird submits costs should not be awarded against it, or, alternatively, two sets of costs would be inappropriate. Rule 14.15 High Court Rules is invoked: if several defendants defend a proceeding separately and all or some of them may have joined their defence, only one set of costs should be awarded unless there is good reason to award more. Courts should exercise caution before awarding costs, without more, in favour of multiple parties, particularly where there is overlap in interests in the litigation positions of the parties.15 SDC and New Brighton have failed to show why multiple costs should be awarded. The respondents could and should have joined their proceedings. Forest & Bird urged SDC to take no active steps in the proceeding
11 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167 at [18].
12 Pain & Pepper “Legal Costs Considerations in Public Interest Climate Change Litigation” (2019) 30 King’s Law Journal 211.
13 Ratepayers & Residents Association Inc v Auckland City Council [1986] 1 NZLR 746 (CA) at 750.
14 Hira Bhana & Co Ltd v PGG Wrightson Ltd [2007] NZCA 342 at [26].
15 Norfolk Trustee Co Ltd v Tattersfield Securities Ltd HC Auckland CIV-2004-404-3668, 30 March 2005 at [51].
(instead simply putting the record before the Court) following New Brighton’s entry as a contradictor. SDC insisted on taking active steps. It is well-established that public decision-makers should not become protagonists in proceedings challenging their own decisions.16 Decision makers should abide the Court’s decision, unless exceptional circumstances present themselves.17 These circumstances are not exceptional.
[19] Forest & Bird submits that, in any event, any award of costs in favour of SDC should be discounted by $7,767.50 and in favour of New Brighton by $7,289.50.
[20] On New Brighton’s withdrawn strike-out application, Forest & Bird seeks 2B costs and disbursements of $8,178.
Analysis
[21] The starting point for determination of costs is that all matters are at the discretion of the court if they relate to costs of a proceeding.18 Costs will generally follow the event, absent any differentiating factors.19
[22] This is not an appropriate case to apply r 14.6(3)(b)(ii) High Court Rules as argued by SDC in favour of a 25 per cent uplift. The rule should not be invoked lightly.20 It is reserved for cases where the plaintiff’s arguments may be described as “hopeless” and “fundamentally misconceived”.21 This Court made no such finding on Forest & Bird’s case. Forest & Bird was entirely unsuccessful, but such a lack of success is not of itself sufficient reason to justify an uplift.
[23] Rule 14.6(3)(b)(v) is also not on point here. Houghton is distinguishable as a case involving a Calderbank letter that offered a cash payment and an undertaking to not pursue costs. The Letter in this case made no such offer and is appropriately viewed as an invitation to walk away.
16 Secretary for Internal Affairs v Pub Charity [2013] NZCA 627 at [27].
17 Fraser v Central Hawke’s Bay District Council [2021] NZHC 2981 at [16]–[25].
18 High Court Rules, r 14.1
19 Rule 14.2(1)(a).
20 Corrick v Silich [2018] NZCA 221, [2018] NZCCLR 1 at [61].
21 Oxygen Air Ltd v LG Electronics Australia Pty Ltd [2020] NZHC 1863 at [22]–[23].
[24] Parties who act in a responsible way as watchdogs of the public interest serve a valuable purpose, and the Court is careful not to discourage such groups when considering costs.22 However, Forest & Bird is an experienced court participant with an understanding of the High Court Rules in relation to costs and the risks associated with a lack of success. The presence of a germane public interest factor in Forest & Bird’s case relating to the impugned decision is debatable. The impugned decision was narrow in scope.23 Ratepayers should not, through the SDC, have to bear the full solicitor/client costs of SDC’S response to this litigation. The purpose of the scale approach to costs is to achieve a reasonable contribution to a party’s full costs.
[25] SDC and New Brighton were justified in advancing their defences separately as respectively a local government and a private entity. Each had distinct reasons for defending the appropriateness of the impugned decision. Forest & Bird did not oppose New Brighton’s participation and in fact consented to it. Rule 14.15 does not apply.
[26] This Court has previously dealt with the costs of New Brighton’s interlocutory application by ruling that those costs lie where they fall. That ruling will not be revisited here.
[27] The discounts suggested by Forest & Bird (above at [19]) are arbitrary and unjustified.
Calculation of scale costs
[28] Counsel for SDC and New Brighton each provided a schedule setting out a calculation of costs uniformly on a 2B basis. Some of those items ought to have been calculated on a 2A basis (under r 14.5(2)(a)). Some claimed items relate to the interlocutory hearing on 29 March 2021 for which there is no order for costs. I do not allow New Brighton’s claim for costs in relation to its costs memorandum. Some items relate to the appearance of second counsel, which I do not certify.
22 Te Whare O te Kaitiaka Ngahere Inc Society v West Coast Regional Council [2015] NZCA 356 at [27], citing Ratepayers and Residents Association Inc v Auckland City Council [1986] 1 NZLR 746 (CA).
23 Royal Forest & Bird, above n 1, at [78]–[79].
[29] These various adjustments result in amended costs calculations — $28,441.00 for SDC and $27,693.00 for New Brighton. Details of the calculations are contained in Schedule A.
Fixing of disbursements
[30] The defendants are entitled to their reasonable disbursements. I will be directing the Registrar to fix those as it is not clear from the information provided whether the claimed disbursements include costs relating to second counsel — those are not to be included in the fixed disbursements as I have not certified for second counsel.
Conclusion
[31] An award of costs in favour of each of SDC and New Brighton is appropriate on a 2B basis, together with disbursements.
Order
[32]I order:
(a)the plaintiff shall pay to the first defendant costs fixed in the sum of
$28,441.00 together with its reasonable disbursements to be fixed by the Registrar; and
(b)the plaintiff shall pay to the second defendant its costs fixed in the sum of $27,693.00, together with its reasonable disbursements to be fixed by the Registrar.
Osborne J
Solicitors:
Lee Salmon Long, Auckland Simpson Grierson, Auckland
Minter Ellison Rudd Watts, Wellington
SCHEDULE A
Costs for Southland District Council
Item
Description
Date
Daily Rate
Time Allocation
Amended Costs
2
Commencement of defence
2/09/2021
$2,390.00
2.0
$4,780.00
10
Preparation for first case
management conference
$2,390.00
0.4
$956.00
11
Filing
memorandum for first case management conference
9/09/2021
$2,390.00
0.4
$956.00
13
Appearance at first case
management conference
13/09/2021
$2,390.00
0.3
$717.00
11
Filing
memorandum for second case management
conference
21/09/2021
$2,390.00
0.4
$956.00[costs
disallowed]
13
Appearance at second case management conference
23/09/2021
$2,390.00
0.3
$717.00[costs
disallowed]
11
Filing
memorandum on costs
20/03/2023
$2,390.00
0.4
$956.00[costs
disallowed]
29
Sealing order for costs
$2,390.00
0.2
$478.00
30 Preparation of affidavits,
agreeing
common bundle, preparation of
chronology, list of authorities
$2,390.00
3.0
$7,170.00
32
Preparation for hearing
$2,390.00
3.0
$7,170.00
36 (refer
r 24)
Preparation of supplementary written
submissions
$2,390.00
[0.5]
amended to 2A
instead of 2B by Court.
$1,195.00
36 (refer
to r 9)
Response to notice requiring further
particulars
25/02/2022
$2,390.00
0.6
$1,434.00
34
Appearance by counsel
$2,390.00
1.5
$3,585.00
35
Appearance by second counsel
$2,390.00
0.75
$1,792.50[costs
disallowed]
Costs Total:
$28,441.00 (no uplift)
Costs for New Brighton Collieries Ltd
Item
Description
Date
Daily Rate
Time Allocation
Amended Costs
11
Filing
memorandum re joinder
16/08/2021
$2,390.00
[0.2]
amended to 2A
instead of 2B by Court
$478.00
29
Sealing order re joinder
$2,390.00
0.2
$478.00
10
Preparation for first case
management conference
$2,390.00
0.4
$956.00
11
Filing
memorandum for first case management conference
09/09/2021
$2,390.00
0.4
$956.00
13
Appearance at first case
management conference
13/09/2021
$2,390.00
0.3
$717.00
11
Filing
memorandum for second case management
conference
16/09/2021
$2,390.00
0.4
$956.00[costs
disallowed]
13
Appearance at second case management conference
23/09/2021
$2,390.00
0.3
$717.00[costs
disallowed]
2
Commencement of defence by defendant
9/12/2021
$2,390.00
2.0
$4,780.00
30 Preparation of
affidavits, list of issues,
authorities, agreeing the
common bundle
$2,390.00
3.0
$7,170.00
32
Preparation for hearing
$2,390.00
3.0
$7,170.00
34
Appearance by counsel at
hearing
$2,390.00
1.5
$3,585.00
2535Appearance by second counsel
$2,390.00
0.75
$1,792.50[costs
disallowed]
36 (cf
24)
Preparation of supplementary written
submissions
8/09/2022
$2,390.00
[0.5]
amended to 2A
instead of 2B by Court
$1,195.00
11
Filing
memorandum on costs
20 May
2023
$2,390.00
0.4
$956.00[costs
disallowed]
29
Sealing order for costs
$2,390.00
0.2
$478.00
Costs total:
$27,693.00
12
0