Te Whare o te Kaitiaki Ngahere Incorporated v West Coast Regional Council

[2017] NZHC 2335

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-418 [2017] NZHC 2335

UNDER THE

Resource Management Act 1991

IN THE MATTER OF

An Appeal

BETWEEN

TE WHARE O TE KAITIAKI NGAHERE INCORPORATED Appellant

AND

WEST COAST REGIONAL COUNCIL First Respondent

AND

TBFREE NZ LIMITED Second Respondent

AND

DIRECTOR-GENERAL OF CONSERVATION

Third Respondent

Hearing:	(On the papers)
Appearances:	A S P Tobeck for Appellant A J Logan for First Respondent B Williams for Second Respondent N Anderson for Third Respondent
Judgment:	26 September 2017

JUDGMENT OF NICHOLAS DAVIDSON J (COSTS)

[1]      The substantive judgment was delivered in this case on 14 February 2017.1

This judgment addresses costs.

1      Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2017] NZHC 150.

TE WHARE O TE KAITIAKI NGAHERE INCORPORATED v WEST COAST REGIONAL COUNCIL [2017] NZHC 2335 [26 September 2017]

[2]      The background is the concern of the appellant about 1080 poison being unlawfully applied, or otherwise entering the environment of the West Coast of New Zealand,  contrary  to  resource  consent  and  other  lawful  requirements,  and contrary to the public interest in health and the environment.

[3]      The breaches alleged by Te Whare were serious in themselves and in the number of occasions when various parties were alleged to have acted unlawfully. Unfortunately, the litigation path taken by Te Whare ran into difficulties recorded in the judgment.

[4]      In the end deficiencies of the pleading stood in Te Whare’s way.  This Court recognised  the sincerity of Te Whare’s  position,  but  even  with  amendment,  the pleadings fell outside the scope of declaratory relief in the Environment Court, the proceedings were struck out.  Along the way Te Whare also ran into difficulty with security for costs.

[5]      The judgment of this Court recorded that behind Te Whare are well-meaning persons whose concerns are genuine and in the public interest, but the proceedings have not been advanced in an orderly and manageable way.

[6]      Now the first respondent, West Coast Regional Council, seeks costs under the usual principle that costs follow the event.  Mr Logan submits that costs should be ordered  on  a  2B  basis  and  I  agree.    Those  costs  come  to  $13,157  under  the High Court Rules, and costs being two-thirds of the actual costs incurred on the interlocutory application associated with the requirement for security of costs are sought in the sum of $5,673 (two-thirds of actual costs incurred of $8,510 GST inclusive).   Disbursements of $557.95 are sought.   Other disbursements for taxi fares, airport parking and other expenses have not been sought.

[7]      The third respondent, Director-General of Conservation seeks costs on a 2B

basis with disbursements set out in the schedule provided to the Court.  The total is

$13,855.21.

[8]      The second respondent has not sought costs.

[9]      Mr Tobeck submits that costs should lie where they fall, given the high public interest.   The Court really has little option but to order the costs as sought notwithstanding some sympathy for Te Whare which has not had the day in Court which it sought.

[10]     Costs are ordered in favour of the first respondent in the sum of $18,714.95. Costs are ordered in favour of the third respondent in the sum of $13,855.21.

Solicitors:

Menzies Marshal Law, Winton

Ross Dowling Marquet Griffin, Dunedin

Chapman Tripp, Christchurch

Crown Law, Wellington