Te Rangatiratanga O Ngati Rangitihi Incorporated v Bay of Plenty Regional Council HC Tauranga CIV 2010-470-000936

[2011] NZHC 98

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2010-470-000936

UNDER  of the Resource Management Act 1991

IN THE MATTER OF     of an appeal under s 299 of the Act against

Decision Number ENV-2009-AKI-00462

BETWEEN  TE RANGATIRATANGA O NGATI RANGITIHI INCORPORATED Appellant

ANDBAY OF PLENTY REGIONAL COUNCIL Respondent

ANDNORSKE SKOG TASMAN LIMITED CARTER HOLT HARVEY PULP & PAPER LIMITED  WATER AND WASTE SERVICES

Applicants

Hearing:         9 December 2010

Appearances: D J Fletcher, M S King and B L Bailey for the Appellant

P H Cooney for the Respondent
P F Majurey and T L Hovell for the Applicants

Judgment:      17 February 2011

COSTS JUDGMENT OF WYLIE J

Distribution:

Matthew King, Sharp Tudhope Lawyers, 35 Grey Street, Tauranga (Tel: [phone])
Paul F Majurey & Mr Taylor L Hovell, Atkins Holm, Joseph Majurey, Shortland Street, Auckland
(Tel: [phone])

P H Cooney, Cooney Lees Morgan, 87 First Avenue, P O Box 143, Tauranga  (Tel: [phone])

TE RANGATIRATANGA O NGATI RANGITIHI INCORPORATED V BAY OF PLENTY REGIONAL COUNCIL HC TAU CIV 2010-470-000936 17 February 2011

[2]      The proceedings comprised an appeal by the appellant society under s 299 of the Resource Management Act against a decision given by the Environment Court dismissing an appeal from hearings commissioners appointed by the respondent, the Bay of Plenty Regional Council, and the Whakatane District Council.  I dismissed the appeal, and held at [98] that the applicants, Norske Skog Tasman Limited, Carter Holt Harvey Pulp & Paper Limited, and Water and Waste Services, were entitled to their reasonable costs and disbursements.

[3]      I  have  received  memoranda  from  the  applicants,  the  respondent  and  the appellant in regard to costs.   They have been unable to resolve matters between them.

Liability for Costs

[4]      The appellant asked me to reopen the issue of whether or not they should be liable for costs.   It noted that in the submissions advanced on its behalf at the hearing, it advised that it wished to be heard on the issue of costs.

[5]      I did not afford the appellant the opportunity to be heard in relation to costs. Rather, I followed the general principle that the party who fails in a proceeding should pay costs to the party who succeeds.   It is not appropriate for me to now re-open my decision.   It has been delivered in terms of r 11.5 of the High Court Rules.  There was no slip or accidental omission.  There has been no application for me to recall the judgment.  It can only be upset on appeal and insofar as I am aware, there has been no appeal.

[6]      Further, and in any event, the grounds advanced by the appellant in support of its request that I should reopen the matter do not persuade me that it would have been appropriate to do so.

[7]      It was argued that the appeal was brought in the public interest, on behalf of local iwi.  The appeal had its genesis in an opposed consent to discharge wastewater

into the Tarawera River.   I accept that the discharge is something that affects the community as a whole, including local iwi.  Where an appeal raises a genuine matter of public interest, the Court may decline to award costs or it may reduce the costs award it might otherwise have made — r 14.7.  However, as was noted by Simon France J: [1]

…the liability for  costs remains  a  legitimate  incentive  for  ensuring that challenges have a sound basis...

[1] Titahi Bay Residents Association Inc v Porirua City Council HC Wellington, CIV 2007-485-1933 18 October 2007.

[8]      Here, the application for the resource consent in question was heard by independent commissioners.   They issued a fully reasoned and comprehensive decision.  The matter was then taken to the Environment Court.  The Court sat with an additional Judge, the Deputy Chief Māori Land Court Judge, to recognise the Māori dimension involved in the resource consent application.   It dealt with the matter by way of a re-hearing, and issued a very full decision.

[9]      Moreover, it was not local iwi who appealed the decision to this Court.  The appellant Society appealed to the Environment Court from the joint decision of the hearings commissioners.  It did not however appeal to the High Court following the Environment Court’s decision.   Rather, the appeal was brought by a Mr Patterson, who is a member of the Society.  The Society belatedly determined that it wished to pursue the appeal, and Mr Patterson applied for an order substituting the Society as the appellant in the proceedings.   I dealt with this matter in [4] to [12] of my judgment.    There  is  no  material  before  me  sufficient  to  persuade  me  that  the appellant Society was acting for or on behalf of the local iwi.  Even if it were, that would not insulate it from an award of costs.

[10]     Notwithstanding the public interest factor, in the circumstances of this case I am not persuaded that it would have been appropriate to decline awards of costs to the  applicants  and  the  respondent.    In  the  respondents’ case,  were  costs  to  be declined, they would simply fall on the general body of ratepayers. To my mind, that

would hardly be fair.

[11]     Costs are, of course, at the discretion of the Court.   However, the costs regime imposed in the High Court Rules is of a regulatory character, and any departure from the principles set out must be done in a particularised and principled way.[2]

[2] Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606.

[12]     Costs generally fall to be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application.

[13]     Here, all counsel agree that the appropriate costs and time category for the proceedings is 2B.  It follows that the appropriate daily rate is $1880, and that the time allowed should be calculated by reference to band B in schedule 3 to the High Court Rules.  Calculation of the appropriate costs should be a simple exercise. However, here counsel disagree as to the applicable item numbers in the schedule. This affects the time allowance and thus the costs which can be recovered.

[14]     Pursuant to r 14.5, a reasonable time for a step in proceedings is the time specified for that step in schedule 3 to the High Court Rules, or a time determined by analogy with that schedule if schedule 3 does not apply, or the time assessed as likely to be required for the particular step, if no analogy can usefully be made.

[15]     The applicants and the respondent rely on schedule 3, item numbers 4.11, 8 and 9.1, in calculating the time required in appearing at a case management conference, in preparing for the hearing, and for their appearance at the hearing. They claim .03 of a day (or $564 for band a B proceeding) for appearing at the case management conference under item 4.11, two days for preparation under item 8, and one day for their appearance under item 9.1.

[16]     The appellants assert that item numbers 4.11, 8 and 9 have no application, and that the appropriate item numbers for an appeal are item numbers 14, 15 and 16

in schedule 3.  The time allocated for appearance at a case management conference

by item number 14 is 0.2 (or $376). The time allocated for preparation for the appeal and for the appearance at the hearing is fixed by reference to the time occupied by the hearing measured in quarter days.  The appellants say that the hearing took .75 of a day.

[17]     Item numbers 4.11, 8 and 9 in schedule 3 appear under the heading ―General Civil Proceedings‖.  Item numbers 14, 15 and 16 appear under the heading ―Appeals and Reviews of Associate Judges‖.

[18]     The applicants argue that the heading ―Appeals and Reviews‖ relates only to the review of decisions of Associate Judges, and that item numbers 14 to 16 do not relate to appeals under part 20 of the High Court Rules.  They base that argument on the fact that the allocated times in items 14 to 16 are significantly less than those allocated for general civil proceedings.  They assert that this reflects the nature of reviews from decisions of Associate Judges, and submit that general appeals under part 20 are usually more complex.

[19]     I am unable to accept these submissions.  In my view, the appellant is correct, and the word ―Appeals‖ in the heading to item numbers 14, 15 and 16 and the use of the word in item number 15, does refer to appeals under part 20 of the High Court Rules.

[20]     Under s 26P(1) of the Judicature Act 1908, a challenge to a decision of an Associate Judge comes before the High Court by way of interlocutory application.  It is termed an application for review.  Rule 2.3 provides that this is the only procedure for  reviewing  decisions  made  by  an  Associate  Judge  in  chambers.     If  the Associate Judge was sitting in Court, then the correct procedure is an appeal to the Court of Appeal under s 26P(2) of the Judicature Act and the Court of Appeal (Civil) Rules 2005 apply.  Those rules contain their own provisions as to costs — see rr 53 to  53J,  including  appropriate  time  allocations  —  see  schedule  2.    There  is  no

―appeal‖ as such from an Associate Judge to a High Court Judge.

[21]     It follows that the word ―Appeals‖ contained in the heading which appears before items 14 to 16 in schedule 3 to the High Court Rules would be otiose, if it

does not apply to general appeals to the High Court.  Moreover, in a broad sense, it is sensible to group the time allocations for general appeals to the High Court with the time allocations applicable to reviews of Associate Judges’ decisions in chambers. Similar steps are to be required, and generally one would expect that the timeframes taken by case management or pre-trial conferences would be broadly similar. Moreover, the time allowed under item number 15 and 16 falls to be assessed by reference to the actual time taken.

[22]     There was also disagreement about whether or not the applicants and the respondent should be entitled to costs in respect of a successful interlocutory application which was filed.   Here, there was an interlocutory application by the applicants for an urgent fixture.   The then appellant, Mr Patterson, did not have counsel.   Nor did he appear.   Mr King appeared as a matter of courtesy and the application was opposed.

[23]     The  High  Court  costs  regime  extends  to  interlocutory  applications  — r 14.2(a) — and I can see no principled reason why the applicants and the respondent should not be entitled to costs in respect of the application made in this case.  There is  no  time  specified  for  interlocutory  applications  in  the  context  of  appeals  in schedule 3, no doubt because such applications are unusual.  The time allowances under item numbers 3.5, 4.12 and 4.10 for General Civil Proceedings is analogous, and it is appropriate to apply those allowances in the present case.

[24]     It follows in my judgment, that the appropriate costs award in favour of the applicants should be calculated as follows:

Schedule 3 item reference	Attendance	Schedule 3 time allocation (days)	Cost (days @ $1,880)
4.12	Preparing and filing interlocutory application and supporting affidavit	0.6	$1,128
4.10	Filing memorandum for case management conference	0.4	$752

14	Appearance at case management conference	0.2	$376
15	Preparation for appeal	.75	$1,410
16	Appearance at hearing	.75	$1,410
Total                   $5,076

[25]     The respondent costs can be calculated as follows:

Item no.	Item	Days – Category B	Cost (Days @ $1880)
3.5	Notice of Appearance	0.2	$376
4.10	Filing     Memorandum     in     support     of application for urgent fixture	0.4	$752
14	Appearance at case management conference	0.2	$376
15	Preparation for hearing	.75	$1,410
16	Appearance	.75	$1,410
Total            $4,324

[26]     The applicants sought the costs of second counsel.  I do not consider that any allowance in this regard is appropriate.   While junior counsel was present at the hearing, he took no active role.   All arguments on behalf of the applicants was advanced by lead counsel.   I accept that junior counsel may have assisted in preparation for the appeal, but any preparation assistance is already provided for under item number 15. Moreover, I am not satisfied that the case was of sufficient complexity to necessarily require the services of junior counsel.

[27]     The  applicants  also  sought  additional  cost,  under  item  11  in  the  third schedule, given that one point on appeal — broadly what was the ―existing environment‖  — was withdrawn by the appellant on the morning of the hearing. The applicants argue that they had prepared for the argument, and that they were ready to address the same.   Such claim falls under r 14.6.   I am not, however, persuaded that an award of increased costs is appropriate in this regard.  The appeal was brought on for hearing on an urgent basis, at the applicants’ request.   The appellant prepared detailed submissions on the point.   It was abandoned on the morning  of  the  hearing.    I  am  advised  that  it  was  only  after  considering  the applicants’ submissions that the point was given away.  The appellant had only two working days prior to the hearing to consider the submissions made by the applicants and the respondent.   The hearing was held shortly before the Christmas vacation. The decision to abandon the point was made, and counsel for the applicants and the respondent were notified, as soon as  was practicable given the time constraints involved.    Further,  I had considered  the point  in  advance  of the hearing.   The arguments advanced by the appellant did not lack merit.   Indeed, they involved matters of some considerable difficulty, which have vexed the Environment Court, the High Court, and the Court of Appeal.   In the particular circumstances of this case, where the appeal was heard within a very short timeframe, in my judgment, the appellant acted responsibly in abandoning the ground of appeal, and it should not be penalised in costs for its responsible and understandably belated decision in that regard.

Disbursements

[28]     The parties also disagree over disbursements.

[29]     The applicants claim a filing fee on the interlocutory application, and the actual  costs  for  travel  and  accommodation  for  counsel  in  attending  the  appeal hearing. The respondent claims office disbursements and expenses.

[30]     I have been given little or no detail of the disbursements claimed, and I am unable to verify the same.  Nevertheless, it is my view that both the applicants, and the respondents are entitled to their reasonable disbursements.  Clearly filing fees are a disbursement.  Office costs and expenses may be a disbursement.  The description is too vague to provide any meaningful assistance.  In the circumstances of this case, disbursements  should  extend  to  the  recovery  of  reasonable  accommodation  and travel expenses for lead counsel, but not for junior counsel.   They were expenses which were paid for the purpose of the proceeding, and which would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs — see r 14.12(1)(a).

[31]     The disbursements claimed need to be verified.   In this regard, I direct the

Registrar to exercise the powers of the Court under rr 14.12(2) & (3).

Costs Award

[32]     I award costs in the sum of $5,076 in favour of the applicants, and costs in the sum of $4,324 in favour of the respondent.  Both parties are also entitled to their

disbursements as shall be fixed by the Registrar.

Wylie J