Taueki v Horowhenua District Council
[2017] NZHC 1742
•26 July 2017
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV-2013-454-441 [2017] NZHC 1742
UNDER the Declaratory Judgments Act 1098 BETWEEN
PHILIP DEAN TAUEKI First Plaintiff
AND
MARGARET TAUEKI Second Plaintiff
AND
PETER CHARLES HEREMAIA Third Plaintiff
AND
VIVIENNE TAUEKI Fourth Plaintiff
AND
MELANIE TUKAPUA Fifth Plaintiff
AND
JOSEPH HAPETA TAUEKI Sixth Plaintiff
AND
PRISCILLA NAHONA Seventh Plaintiff
AND
TE KEKE TAUEKI Eight Plaintiff
AND
PEGGYANNE GAMBLE Ninth Plaintiff
AND
CHARLES RUDD (SNR) Tenth Plaintiff
AND
EUGENE THOMAS HENARE Eleventh Plaintiff
AND
COLIN HANITA PAKI Twelfth Plaintiff
AND
FREDERICK PK HILL Thirteenth Plaintiff
AND
MACKIE NAHONA Fourteenth Plaintiff
TAUEKI v HOROWHENUA DISTRICT COUNCIL [2017] NZHC 1742 [26 July 2017]
AND BRADLEY TAUEKI
Fifteenth Plaintiff
AND
DELIA PAUL Sixteenth Plaintiff
AND
HOROWHENUA DISTRICT COUNCIL Defendant
On thepapers: Counsel:
P D Taueki (First Plaintiff)
H P Kynaston for DefendantJudgment:
26 July 2017
JUDGMENT OF CLARK J (COSTS)
[1] Mr Taueki applied for declarations broadly relating to the legality of a 1973 agreement entered into by the Horowhenua District Council’s predecessor, the Levin Borough Council (LBC). The agreement provided for the construction and use of a drain which runs from Queen Street in Levin, through land owned by Muaupoko iwi and into Lake Horowhenua (the Queen Street drain). The drain carries and discharges into the Lake the town’s stormwater.
[2] In my judgment delivered on 25 January 2017 I declined Mr Taueki’s application.1 I recorded the entitlement of the Council to costs. The parties were invited to file brief memoranda if they were unable to agree costs.
[3] The parties filed memoranda. The Council seeks an award in the sum of
$25,422.00 calculated on a 2B basis and in accordance with the schedules to the
High Court Rules. The amount claimed is less than the Council’s actual costs.
1 Taueki v Horowhenua District Council [2017] NZHC 34.
[4] Mr Taueki submits he has no financial resources to pay the Council’s costs. He opposes costs and seeks, in any event, the deferral of a costs award until his appeal has been heard. Mr Taueki filed his appeal on 20 February 2017.
Applicable Principles
[5] The principles governing the exercise of the court’s discretion are well established. Although costs are at the discretion of the court2 the discretion is not unfettered. In particular the court’s discretion is qualified by the specific rules at rr 14.2–14.17 of the High Court Rules. There is a strong implication that the court is to apply the costs regime in the absence of some reason to the contrary.3 Any departure must be a considered and particularised exercise of the court’s discretion.4
Assessment
Should costs be deferred until the appeal is determined?
[6] Mr Taueki asks for judgment on costs to be deferred until his appeal is heard. Mr Taueki has not applied to stay the effects of the judgment against him. The fundamental principle is that costs follow the event.5 The further principle is that a party is entitled to enjoy the fruits of a judgment in its favour. It presumably remains open to Mr Taueki to seek a stay of enforcement pending the outcome of his appeal. In the meantime I have been presented with no proper basis for deferring my determination of costs.6
Does the proceeding concern a matter of public interest?
[7] Although unsuccessful in his application for declarations Mr Taueki maintains in his submissions opposing costs the Council has made no provision to divert Levin’s stormwater away from Lake Horowhenua and therefore continues to create a nuisance on private land. Mr Taueki says “he should not be penalised for his
attempts to halt the ongoing pollution” of Lake Horowhenua by the Council.
2 High Court Rules 2016, r 14.1.
3 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7].
4 Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]–[24] and [28].
5 Manukau Golf Club Inc v Shoye Venture Ltd, above n 3, at [8].6 Duncan v Osbourne Buildings Ltd (1992) 6 PRNZ 85 (CA).
Mr Taueki claims it would be “mean-spirited” for the Council to seek costs in the order of $25,442.00 when the failures of the Council and its predecessor to comply with safeguards to protect the taonga which is Lake Horowhenua has created pollution of the Lake. The Muaupoko iwi relied on the water quality of the lake for their own kai and the revenue derived from its fisheries.
[8] I propose to consider Mr Taueki’s submissions in the context of r 14.7(e) which permits the court to refuse an order of costs or to reduce costs otherwise payable under the rules if “the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding”.
[9] It has been said that the requirements for an award of reduced costs under r 14.7(e) are that the proceeding has merit and involves a matter of genuine public interest and importance beyond the interests of the particular unsuccessful litigant who must (as r 14.7(e) expressly requires) also have acted reasonably in the conduct
of the proceeding.7 I address each of these three requirements.
[10] Mr Taueki’s application for declarations was in pursuit of legal solutions to a lamentably polluted Lake Horowhenua. I described Mr Taueki in my judgment as being “dutiful in his commitment to improving water quality and preventing further degradation of Lake Horowhenua”.8 Although the proceeding does not raise issues of such wide general importance as the state of the Māori language in New Zealand,9 fair trial rights under the New Zealand Bill of Rights Act 1990,10 or the legality of
fluoridation of town water supplies,11 Mr Taueki’s proceeding does concern a matter
of genuine public importance beyond Mr Taueki’s particular interests in the Lake.
[11] The Council accepts that the water quality in Lake Horowhenua is very poor and that the Queen Street drain has contributed to the problem. A report by the
7 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [HR14.7.01(c)(i)] citing New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 993, (2014) 21 PRNZ 766 at [8]–[10].
8 Taueki v Horowhenua District Council, above n 1, at [7].
9 New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC).
10 Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October
2010.
11 New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 933, (2014)
21 PRNZ 766.
National Institute of Water and Atmospheric Research (NIWA) was put before the Court through Mr Clapperton, the Chief Executive Officer of the Council. The report, prepared in May 2011, assessed water quality issues in Lake Horowhenua and how to address them. The report summarised the water quality of the Lake “as “currently very poor and … declining due to increasing nutrient and sediment loads from the catchment”. The report attributed some 80 per cent of the external phosphorous load on the Lake as coming from the Queen Street drain. The Queen Street drain was said to be the largest external source of phosphorous nutrient to the Lake.
[12] Mr Taueki referred also to a report prepared in December 2014 by Dr Chris Tanner, Principal Scientist at NIWA describing “significant potential health risks” from drain flows over the period during which data was collected.
[13] I reference the scientific reports because they show Mr Taueki’s concerns are not exaggerated. Of course, the Queen Street drain is not the sole contributor to the poor water quality. Equally obvious is that the Council has an action plan and restoration options have been identified and are being pursued.
Does the proceeding have merit?
[14] The inquiry into whether a proceeding has merit is not determined by the fact a party has been unsuccessful. That much is clear from the thrust of r 14.7(e) which only applies when a party has been unsuccessful and is prima facie liable to pay costs. There are three aspects to my consideration of the question whether the proceeding has merit.
(a) The legality of the agreement under which the Queen Street drain was constructed is arguably important from both the standpoint of environmental protection and protection of Māori beneficial ownership in land.
(b)On the face of the 1973 agreement there was a basis for Mr Taueki’s challenge to its validity. The copy which the Council produced bore only the signatures of the trustees. The Council was unable to locate a
copy of the original agreement with the signatures of the LBC.
(c) Because the proceeding was brought under the Declaratory Judgments Act 1908 the Court was precluded from engaging on some of the issues raised by the plaintiff (for example whether or not the drain amounted to a nuisance and whether or not, under the Te Ture Whenua Māori Act 1993, the drain amounted to a trespass or injury to Māori Land). That said the issues were not finely balanced nor were they particularly complex.
Reasonableness of conduct
[15] There is no suggestion Mr Taueki has acted unreasonably in the conduct of the proceeding. Mr Taueki applied for leave to cross-examine the Chief Executive Officer. I declined the application because the objective of a speedy and inexpensive judicial determination in declaratory judgment proceedings is ordinarily served by refusing or restraining cross-examination. Further, the matters on which Mr Taueki proposed to cross-examine Mr Clapperton had only indirect relevance to the issue for determination.
[16] Although Mr Taueki was unsuccessful in his application to cross-examine I
do not regard the application as having been unreasonably made.
[17] In bringing his application Mr Taueki was not motivated by personal gain but by his sense of duty as kaitiaki to improving water quality and to preventing further degradation of Lake Horowhenua. The proceeding definitely concerns a matter of public interest. But that does not automatically negate Mr Taueki’s liability to pay costs. There is a further factor which must be brought into the mix.
Countervailing considerations
[18] Mr Taueki has filed other proceedings to the same end. On 11 November
2011 Mr Taueki filed a claim in the Māori Land Court (originally A20090001234 now A20140009643). The Council was joined to the proceeding in 2012, when Mr Taueki expanded the scope of his application to include issues related to the
Queen Street drain, alleging trespass and nuisance and seeking an injunction. The Council relied on the 1973 agreement as a defence in the Māori Land Court proceeding. The validity of the agreement is therefore at issue in a separate proceeding.
[19] The latest development, of which I am aware, in the Māori Land Court proceeding is a reserved judgment of Judge Doogan as to standing.12 The Court declined the Council’s application to dismiss the proceeding on the grounds that Mr Taueki lacked standing. Judge Doogan confirmed that Mr Taueki, as the owner of a beneficial interest in Māori freehold land, had standing to bring conventional tort claims in trespass and nuisance.
[20] Mr Kynaston submitted at the hearing before me that the duplication of proceedings was an abuse of process and relief should be declined on that basis. Furthermore, the determination of this proceeding has not (and would not have) put an end to the litigation. Issues as to the legality of the Queen Street drain and whether it constitutes a nuisance are raised in Mr Taueki’s Maori Land Court proceeding and will be determined in that jurisdiction.
[21] To this extent Mr Taueki has put the Council to unnecessary costs in having to oppose this application. Concurrent proceedings on the same subject matter, between the same parties, run in the same or different courts are regarded as an abuse of process.
[22] While the subject matter of this litigation concerns a matter of genuine public interest this particular proceeding also represents an abuse of process. That tends to negate the public interest element. It is contrary to the public interest to abuse the process of the courts. For this reason there is no proper basis for reducing the costs to which the defendant, as the successful party, is otherwise entitled under the
High Court Rules.
12 Taueki v Horowhenua District Council – Horowhenua 11 (Lake) block (2016) 354 Aotea MB 21 (354 AOT 21).
Result
[23] I award to the Council costs in the sum of $25,422.00.
Karen Clark J
Solicitors:
Buddle Findlay, Wellington, for Defendant
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