Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council

[2014] NZHC 2969

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001554 [2014] NZHC 2969

BETWEEN

TE WHARE O TE KAITIAKI

NGAHERE INCORPORATED SOCIETY Appellant

AND

WEST COAST REGIONAL COUNCIL First Respondent

AND

TBFREE NEW ZEALAND LIMITED Second Respondent

AND

EPRO LIMITED Third Respondent

AND

DIRECTOR-GENERAL OF CONSERVATION

Fourth Respondent

AND

ROGER LORIGAN Fifth Respondent

AND

KANE STAFFORD Sixth Respondent

CIV-2014-409-000222

BETWEEN  TE WHARE O TE KAITIAKI

NGAHERE INCORPORATED SOCIETY Appellant

ANDWEST COAST REGIONAL COUNCIL First Respondent

ANDANIMAL HEALTH BOARD INCORPORATED

Second Respondent

ANDEPRO LIMITED Third Respondent

ANDDIRECTOR-GENERAL OF CONSERVATION

Fourth Respondent

TE WHARE O TE KAITIAKI NGAHERE INCORPORATED SOCIETY v WEST COAST REGIONAL COUNCIL AND ORS [2014] NZHC 2969 [26 November 2014]

AND

ROGER LORIGAN

Fifth Respondent

AND

KANE STAFFORD Sixth Respondent

AND

CHRISTOPHER COWAN Seventh Respondent

Hearing:	(On the papers)
Appearances:	Appellant in person N M Laws for First Respondent B G Williams for Second Respondent
Judgment:	26 November 2014

RESERVED COSTS DECISION OF DUNNINGHAM J

[1]      In my judgment of 13 August 2014, dismissing appeals by Te Whare O Te Kaitiaki Ngahere Incorporated Society (Te Whare) in these two proceedings, and one other,1 I reserved costs, but discouraged applications.

Application for costs

[2]      Costs  applications  have  now  been  received  from  West  Coast  Regional Council2  (the Council) and from TB Free New Zealand Limited3  (TBFree).   The Council seeks costs totalling $9,700.10 (comprising legal costs of $9,215 calculated on a 2B basis plus disbursements totalling $485.10).  TBFree seeks costs totalling

$8,951.15 (comprising legal costs of $8,855.50 calculated on a 2B basis plus disbursements of $95.65).

[3]      The applications were received on 13 October 2014 and 25 September 2014 respectively.  No submissions have been received from Te Whare.

1      CIV-2013-409-1548.

2      The first respondent in both these appeals.

3      The second respondent in CIV-2013-409-1554.

TBFree New Zealand’s claim for costs

[4]      In support of TBFree’s application for costs it submits:

(a)      there is no good reason to depart from the general principle that the party who fails with respect to a proceeding should pay the cost to the party who succeeds;

(b)in this case Te Whare pursued appeals that clearly lacked merit, its case was poorly pleaded and presented, and it failed to act reasonably (in taking unmeritorious points on appeal);

(c)      the fact Te Whare sees itself as a “public interest” organisation which is pursuing the litigation in the public interest does not, in this case, militate against an award of costs, particularly having regard to the matters addressed in (b) above;

(d)the fact Te Whare says it is impecunious should not stand in the way of costs being awarded, both on policy grounds (by encouraging litigants such as Te Whare to arrange their affairs to avoid orders for costs) and because awarding costs acts as an incentive for litigants to examine rigorously whether they have a seriously arguable case.

[5]      TBFree explained it had incurred substantial legal costs in analysing and appropriately responding to Te Whare’s appeals, and its actual costs were in the order of $30,000 as demonstrated by copies of legal fees invoices attached.

[6]      While TBFree submits it would be open to the Court to award an uplift of costs in this case it says that, at the very least, scale costs for a 2B proceeding should be awarded.

West Coast Regional Council

[7]      In support of the Council’s application for costs it submits:

(a)       applying High Court rr 14.1 and 14.2, costs should follow the event;

(b)      in  relation  to  the  appeal  against  a  refusal  to  state  a  case  to  the

High Court, the appeal was misguided and without merit;

(c)      in relation to the security for costs appeal, the appellant applied the wrong legal test when it argued the Environment Court had “struck out” Te Whare’s application when it was not “clearly untenable”;

(d)the conduct  of those  appeals  was  misguided,  by reference to  this Court’s  findings  including  that  Te  Whare’s  submissions  “lacked clarity and focus, confused legal and factual issues, introduced irrelevant legal consideration and were expressed in pejorative terms”.

Approach to costs award

[8]      The legal principles applying to an award of costs in the High Court are well understood.   Rule 14.1 is paramount.   Costs are at the discretion of the Court. However, the exercise of that general discretion is governed by the principles which are set out at r 14.2, which include:

(a)      that the party who fails with respect to a proceeding should pay costs to the party who succeeds;4

(b)costs should be assessed by applying the appropriate daily recovery rate  to  the  time  considered  reasonable  for  each  step  reasonably required in relation to the proceeding;5 and

(c)      so far as possible, the determination of costs should be predictable and expeditious.6

[9]      In other words, there is a strong implication that the Courts should apply the regime in the High Court Rules, unless there is a good reason to depart from that,

because otherwise the integrity of the costs regime would be undermined.

4      Rule 14.2(a).

5      Rule 14.2(c).

6      Rule 14.2(g).

[10]     I therefore start from the presumption that costs should follow the event, that is, Te Whare should pay costs, and in this case, where a 2B categorisation was agreed to be appropriate,7  there must be a sound reason for departing from that presumption.

Should this Court depart from the presumption that costs should follow the event?

[11]     While Te Whare has not formally responded to the applications for costs, I proceed on the assumption that its position remains as articulated in the Environment Court, being that:

(a)       it is acting in the public interest in filing these proceedings; (b)         it wishes to raise issues that are not “clearly untenable”;

(c)       any shortcomings in the presentation of the case are due to Te Whare’s

lack of finance to employ a lawyer.

[12]     Having heard from Te Whare’s representatives in the substantive appeals, I am satisfied that the applications for declaration were made genuinely and there may well be issues identified in the applications which should receive this scrutiny of the Courts.  However, neither of these factors negate a litigant’s responsibility to run its case responsibly and in a way that avoids unnecessary costs for the other parties.  It is important that the interests of all parties to the litigation are fairly considered and balanced.

[13]     In considering TBFee’s application for costs on the Case Stated appeal,8  I have  held  that  Te Whare’s  appeal  was  without  merit,  and  did  not  advance  the substantive issues that Te Whare wished to argue in any way.  As I explained in the substantive appeal decision, if the Environment Court proceeded to decide the applications on an erroneous understanding of the law, Te Whare retained the right to appeal that decision to the High Court.  It did not need to challenge the decision not to refer the so-called “questions of law” to the High Court in advance of the hearing

by way of case stated.  For this reason, I do not consider that Te Whare can argue the appeal  involving  TBFree  had  any  element  of  public  interest,  nor  should  it  be protected from a costs award in relation to that appeal.

[14]     Similarly, the Council was named as a respondent both in the Case Stated appeal, and the appeal of the decision requiring security for costs to be paid by Te Whare.9   While Te Whare’s decision to appeal the award of security for costs was perhaps more understandable, the Council still had to respond to two appeals, and where the manner in which the appeals were advanced made that a difficult task. Accordingly, again, I am not persuaded that any element of public interest Te Whare

says its appeals involved, outweigh the other considerations which would favour an award of costs.

[15]     Finally, in regard to Te Whare’s impecuniosity, Te Whare has accepted it cannot meet the existing costs award, nor the requirement to pay security for costs. It seems that whether I make an award of costs at a nominal level or at the level sought, it is unlikely to  make much difference to whether Te Whare can make payment.

[16]     I also accept, as submitted by TBFree, that impecuniosity is not “an answer” to a claim for a costs award.10   A costs award should be made at a meaningful level, even against an impecunious party, when that party has advanced a case which is poorly pleaded or lacking in merit, as I have found was the case in these appeals

[17]     As I have already noted, given Te Whare’s financial position, the quantum of the award is unlikely to matter. Accordingly, I consider the most principled approach to adopt is to award costs in accordance with the High Court Rules cost regime, on a

2B basis.

[18]     Accordingly, I order:

(a)      Te Whare O Te Kaitiaki Ngahere Incorporated Society is to pay costs to TBFree New Zealand Limited of $8,951.15 (comprising $8,855.50 in legal costs and $95.65 in disbursements);

(b)Te Whare O Te Kaitiaki Ngahere Incorporated Society is to pay costs to the West Coast Regional Council of $9,215 (comprising $8,729.90 in legal costs and $485.10 in disbursements).

Solicitors:

Chapman Tripp, Christchurch

Ross Dowling Marquet Griffin, Dunedin