Save Kapiti Inc v New Zealand Transport Agency

[2013] NZHC 3314

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-000724 [2013] NZHC 3314

BETWEEN  SAVE KAPITI INCORPORATED Appellant

ANDNEW ZEALAND TRANSPORT AGENCY

Respondent

THE BOARD OF INQUIRY INTO THE MACKAYS TO PEKAPEKA EXPRESSWAY PROPOSAL

Decision-maker

CIV-2013-485-000744

BETWEEN  ALLIANCE FOR A SUSTAINABLE KAPITI INCORPORATED

Appellant

ANDNEW ZEALAND TRANSPORT AGENCY

Respondent

Memoranda on Costs:

RJB Fowler QC for Appellant Save Kapiti Incorporated

Dr M O'Sullivan for Appellant Alliance for a Sustainable Kapiti
Incorporated

J Hassan for Respondent New Zealand Transport Agency

Judgment:                11 December 2013

COSTS JUDGMENT OF D GENDALL J

Background

[1]      In a judgment I gave in this proceeding on 19 August 2013 I dismissed appeals  brought  by  Save  Kapiti  Incorporated  (Save  Kapiti)  and Alliance  for  a

Sustainable Kapiti Incorporated (Alliance) against a decision of a Board of Inquiry

SAVE KAPITI INCORPORATED v NEW ZEALAND TRANSPORT AGENCY [2013] NZHC 3314 [11

December 2013]

appointed by the Minister for the Environment granting resource consents for a proposed   expressway   between   Mackays   Crossing   and   Peka   Peka   north   of Wellington.  In dismissing these appeals I reserved costs and indicated at paragraph [86] of my 19 August 2013 judgment that if counsel were unable to agree between themselves on the issue of costs they could file memoranda and in the absence of any party indicating they wished to be heard on the issue I would decide the question of costs based on all the material before the Court and the memoranda filed.

[2]      Counsel for the respondent in each appeal has filed a memorandum on costs dated 23 September 2013 which indicates that no agreement has been reached on costs.   The respondent New Zealand Transport Agency (NZTA), as the successful party in opposing the appeals, seeks costs in terms of that memorandum totalling

$11,542.

[3]      Counsel  for  Save  Kapiti  has  filed  a  memorandum  in  response  dated

6 November 2013 and Dr O’Sullivan for the Alliance has also filed a memorandum on costs dated 6 November 2013.  No memorandum on costs has been filed by the decision-maker, the Board of Inquiry into the Expressway Proposal.  Also, no party has indicated they wish to be heard before me on the question of costs.

[4]      I have had an opportunity to consider the memoranda filed on the costs question and now give my decision.

New Zealand Transport Agency’s position on costs

[5]      The respondent New Zealand Transport Agency as I have noted above, seeks an award of costs as the successful party here on a category 2B scale basis totalling

$11,542.

[6]      It  was  noted  by  counsel  for  NZTA  that  attempts  were  made  to  reach agreement with counsel for Save Kapiti and the Alliance in relation to costs but these were unsuccessful.   As the parties have been unable to reach agreement between themselves as to costs, the NZTA makes this application to the Court.

[7]      In accordance with r 14.3, the NZTA considered these proceedings to be a

“Category 2 proceeding” for which the average daily recovery rate is $1990.  I agree.

[8]      Essentially here no issue was taken by Save Kapiti or the Alliance with the

2B categorisation of this proceeding or the $11,542 quantum sought by NZTA.  On this aspect, counsel for the NZTA indicated that it considered that it should seek a contribution  to  its  costs from  Save Kapiti  and  the Alliance  as  the unsuccessful appellants, mindful of the fact that the NZTA’s participation in these High Court proceedings inevitably resulted in the expenditure of public funds.   It said it was therefore incumbent on the NZTA to seek to mitigate that expenditure.

Save Kapiti’s position on costs

[9]      In his 6 November 2013 memorandum on costs Mr Fowler QC for Save Kapiti indicated, as I have noted above, that Save Kapiti takes no issue with the costs quantum calculation outlined by counsel for NZTA in his costs memorandum.  The only issue that Save Kapiti appeared to raise related to the question of contribution towards any costs award which was made as between the two appellants, Save Kapiti and the Alliance.  Mr Fowler QC submitted that this was not a case for a joint and several award of costs but one for a proper apportionment between the appellants in defined shares.

[10]     On this, although Mr Fowler noted that the Save Kapiti case was different and related to a much more confined issue than that of the Alliance in its appeal, he said a pragmatic outcome would be that each appellant might meet one half of any costs award which was made.

Alliance for a Sustainable Kapiti Incorporated’s position on costs

[11]     Dr O’Sullivan’s submissions for the Alliance noted that they are not in a position to meet costs in this matter.

[12]     She submitted that they were a very small community group, they did not have a large support base and were not eligible for assistance from an environmental legal fund or elsewhere.  The decision to represent themselves in this matter they say

was based on their limited ability to raise funds and they were not able to pay for legal representation.   It was noted that even paying the required court fees was difficult.

[13]     Dr   O’Sullivan’s   6   November   2013   memorandum   raises   other   issues concerning the position of the Alliance with respect to the appeal and what she contended was an unfortunate focus on Save Kapiti as the larger body throughout this matter.  Notwithstanding this, the essential message from the Alliance was that they were a genuine community group with a real concern over issues raised by the expressway proposal and the Board of Inquiry decision.

Board of Inquiry

[14]     As noted above, the Board of Inquiry made no submissions on costs.  Costs were not being sought from the Board.

The approach/principles to be adopted

[15]     Under r 14.1 High Court Rules, costs are at the discretion of the Court.  The principles applying to costs are set out at r 14.2 including at r 14.2(a) where the clear starting point is that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.

[16]     There are also relevant rules in relation to refusing and/or reducing costs in r 14.7 as follows:

14.7     Refusal of, or reduction in, costs

Despite rules 14.2 to14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

(a)       the nature of the proceeding or the step in a proceeding is such that the time required by the party claiming costs would be substantially less than the time allocated under band A; or

(b)       the  property  or  interests  at  stake  in  the  proceeding  were  of exceptionally low value; or

(c)       the issues at stake were of little significance; or

(d)       although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or

(e)       the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or

(f)       the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i)       failing to comply with these rules or a direction of the court;

or

(ii)      taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)     failing, without reasonable justification, to admit facts, evidence, or documents, or accept a legal argument; or

(iv)      failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

(v)       failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or

(g)       some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.  (Emphasis added)

[17]     In my view this is a case where the factors identified at r 14.7(e) above apply. As I see the position, this proceeding concerned a matter of public interest and a legitimate challenge to the public decision made by the Board.

[18]     On this, McGechan on Procedure at paragraph HRPt14.17(4) addresses the question of refusing to award costs in cases of public interest challenge and states:

(4)      Public interest challenges

Where appropriate, Courts have declined to award costs, or awarded only  reduced  costs,  against  a  party  unsuccessful  with  a  genuine  and legitimate public law challenge, ie one raising public law issues of general importance, having merit and not brought for personal gain:   Gibbs v New Plymouth  District  Court  (No  2)  HC  New  Plymouth  CIV-2004-443-115,

5 October 2006 (where the principles are summarised and the authorities collected).

In   Titahi   Bay   Residents  Association   Inc   v   Porirua   CC   HC Wellington CIV-2007-485-1933, 18 October 2007 Simon France held at [8] that:

“The importance of public interest litigation is reflected in the fact it is a recognised basis for departure from the normal costs rules.  However, the liability for costs remains a legitimate incentive for ensuing that challenges have a sound basis, and do not reflect, for example, a blindness to the fact that people can legitimately take different positions.”

[19]     Although  Mr  Fowler  QC  in  his  formal  costs  submissions  may not  have directly opposed costs based on public interest grounds, in my view this is a situation where both Save Kapiti and Alliance, although unsuccessful, were genuine in bringing their appeals, and had a legitimate public law challenge on issues of general importance for the community and the region.  There seems to be no suggestion that the appeals were brought for personal gain of any type.  I say this given particularly that  the appellants  were  two  community groups,  with  the Alliance in particular suggesting it has entirely limited financial means.

Conclusion

[20]     I conclude therefore in terms of r 14.7(e) High Court Rules that this is a situation where the appeals concerned matters of public interest and both Save Kapiti and the Alliance, in acting reasonably in the conduct of the proceeding generally, are entitled to have the Court exercise its discretion under this rule to refuse an award of costs.

[21]     For these reasons costs are to lie where they fall.   There is to be no order made here as to costs.

...................................................

D Gendall J

Solicitors:

RJB Fowler QC, Wellington

Dr M O’Sullivan, Waikanae

Chapman Tripp, Wellington

Chancery Green, Auckland

Cowper Campbell, Auckland