Trans Tasman Resources Limited v Environmental Protection Authority
[2015] NZHC 867
•29 April 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2014-485-8741 [2015] NZHC 867
UNDER the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 IN THE MATTER
of an appeal under s 105 of the Act
BETWEEN
TRANS TASMAN RESOURCES LIMITED
Appellant
AND
ENVIRONMENTAL PROTECTION AUTHORITY
Respondent
AND
KIWIS AGAINST SEABED MINING INC, ENVIRONMENT DEFENCE SOCIETY, ORIGIN ENERGY RESOURCES (KUPE) LTD ON BEHALF OF KUPE JOINT VENTURE PARTIES, TE RUNGANGA O NGATI KUANUI TRUST, TE OHU KAI MOANA TRUSTEES LTD, FISHERIES INSHORE NZ LTD, NZ FEDERATION OF COMMERCIAL FISHERMEN INC, McDONALD AND BROWN LTD, EGMONT SEAFOODS LTD, TALLEY'S GROUP LTD, SOUTHERN INSHORE FISHERIES MANAGEMENT CO LTD and SEAFORD LTD
Parties
Hearing: On Papers Counsel:
H Rennie QC and A Beatson (with Mr Crossley) for Appellant
V Casey and C Haden for Respondent
D Currie and M Heard for Kiwis Against Seabed Mining Inc
N De Wit for the Environment Defence Society
JDK Gardner-Hopkins for Origin Energy Resources (Kupe) Ltd
J Inns for Te Runanga o Ngati Ruanui Trust
H Irwin-Easthope for Te Ohu Kai Moana Trustee LtdJ Appleyard for Fisheries Inshore Inc, McDonald and Brown Ltd, Egmont Seafoods Ltd, Talley's Group Ltd, Southern Inshore Fisheries Management Co Ltd and Sanford Ltd
TRANS TASMAN RESOURCES LTD v ENVIRONMENTAL PROTECTION AUTHORITY [2015] NZHC 867 [29 April 2015]
Judgment: 29 April 2015
COST JUDGMENT OF BROWN J
[1] Notice of abandonment of this appeal was filed by the appellant on
12 December 2014. The appellant and the respondent reached agreement on costs.
[2] However applications for costs were made by a number of those who had been joined as parties to the appeal. The appellant has resolved the claims of the Environmental Defence Society and Te Rūnanga o Ngāti Ruanui Trust. Origin Energy Resources (Kupe) Ltd did not seek costs. The costs claims by Te Ohu Kai Moana Trustees Ltd (Te Ohu) and Kiwis Against Seabed Mining Inc (KASM) remain to be determined.
[3] The proceeding is in costs category 3.1 Te Ohu and KASM seek scale costs of $6,872 and $11,780.30 respectively.
The applicable provision
[4] Because HCR 20.1 provides that Part 20 of the High Court Rules apply to appeals to the Court under any enactment (other than certain specified enactments) the appellant submits that the relevant specific rule is r 20.12(2) relating to inter alia abandonment of appeals which states:
The appeal is taken to have been dismissed, subject to the respondent’s right to apply for an order as to costs, if the appellant signs, files, and serves on every other party a statement to the effect that the appellant abandons the appeal.
1 Minute of Clifford J dated 26 September 2014.
[5] Te Ohu agrees that r 20.12 is the operative rule. However KASM submits that the appeal is a proceeding to which r 15.23 applies. It provides:
Unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.
[6] I agree with the appellant and Te Ohu. However the fact that r 20.12(2) refers to a respondent’s right to apply for costs and does not contain an equivalent reference to parties joined in the appeal does not mean that such parties are precluded from applying for costs.
The parties’ contentions
[7] The appellant submits that Te Ohu and KASM voluntarily became parties to the appeal under ss 107 and 108(c) of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act) and that those provisions do not provide for them to become either liable for or entitled to costs. It appears to accept however that such parties may be granted costs at common law in the Court’s discretion.
[8] The appellant contends that it cannot be that submitters who wish to appear on appeal to the High Court under the EEZ Act will be granted costs simply because they become a party. It makes the point that there were 4,850 submitters on the appellant’s application for consent who were all entitled to become parties to the appeal. The appellant says it cannot have been the intention of Parliament that the EEZ Act would have the unreasonable and unfair outcome that an appellant should pay costs to all submitters who may choose to join an appeal under their own volition.
[9] The appellant makes the further point that all the parties who chose to join this appeal had a commonality of interest in wanting the appeal to be dismissed. It argues that there were no separate issues between the appellant and those parties but that the sole issue was between the appellant and the EPA as respondent. It makes the point that it was not necessary for all of the parties to prepare separate cases but
rather they could have participated in the proceeding jointly or relied on the memoranda of others for case management matters.
[10] Te Ohu draws attention to the fact that there is provision for “existing interests” in the EEZ Act, which interests are afforded a distinct and alleviated status. It notes that at first instance the Decision Making Committee confirmed that Te Ohu had existing interests pursuant to the EEZ Act that were potentially affected by the appellant’s proposal.
[11] It further draws attention to the fact that the appellant took the position that the EPA’s role on appeal was a limited one and that the EPA itself likened its position in the appeal to being analogous to that of the Commerce Commission in appeals under the Commerce Act 1986. It argues that the joining parties had an important role to play in the appeal given the scope of the EPA’s role.
[12] It takes issue with the portrayal by the appellant of Te Ohu as a “voluntary party” which it says misunderstands Te Ohu’s role and the broader context and enduring importance of the Maori Fisheries Settlement.
[13] On the commonality of interests proposition, it notes that counsel had begun preparations to ensure that there was as minimal overlap as possible but argues that there was not such a degree of commonality that all of the joining parties’ cases could have been prepared completely together. It submits that its role in the appeal was unique and was being developed with respect to its statutory purpose and functions.
[14] KASM makes a similar point noting that the joining parties were directed to and intended to reduce duplication as far as possible at the hearing of the appeal. However it submits, given the early stage of the appeal, the appellant’s wavering positions on what aspects of the appeal it intended to pursue, whether any party other than the EPA should have an active role in the appeal and whether the appeal should proceed at all, that all steps taken by the joining parties at the early point were reasonably taken.
[15] So far as its own status is concerned, KASM argues that it was the only “submitter” party to the appeal that was present (through counsel or a lay representative) on every day of the hearing of the appellant’s application. It presented evidence, cross-examined witnesses and make submissions on all aspects of the appellant’s application.
[16] KASM and Te Ohu submit that Air New Zealand v Commerce Commission2 is particularly useful on the issue of costs to joining parties whereas the appellant submits that the decision is not applicable given that it was a decision on costs following an appeal. It questions the application of the authority to a situation where an appeal under the EEZ Act has been abandoned.
Decision
[17] Notwithstanding the appellant’s point of distinction, I consider that Air New Zealand is a helpful illustration of the approach of the Court to awarding costs to joining parties. Rodney Hansen J noted:3
In the past costs have been awarded to parties joined as additional respondents (to the Commission). Examples are Power NZ (above), Auckland Bulk Gas Users Group (above), where the Commission was not awarded costs but the Natural Gas Corporation of New Zealand as second respondent was awarded costs and Air NZ v Commerce Commission (1993) 4
NZBLC 102,230 where the Commission was one of three successful respondents. The Commission did not seek costs but Air NZ was ordered to
pay costs to the other respondents.
[18] While there would certainly be an expectation of a significant degree of collaboration among joining parties as the appeal progressed and in particular in the context of a hearing, I consider that it was reasonable for Te Ohu and KASM to each play a role at the formative stages, in particular having regard to the points made by KASM referred to above at[14].
[19] I allow both Te Ohu and KASM scale costs of $6,762 on the basis of the
attendances recorded in Te Ohu’s analysis at para 3 of its memorandum of
23 December 2014 together with a filing fee of $110.
2 Air New Zealand v Commerce Commission (2005) 17 PRNZ 786.
3 At [45].
[20] I do not allow KASM’s claim for costs in respect of its memoranda of 4 and
8 December 2014. The matters which the appellant had raised in its memoranda were able to be adequately addressed by the EPA. Nor do I consider it is appropriate to award costs on the exchange of memoranda concerning costs or to make allowance for travel expenses.
[21] Consequently both Te Ohu and KASM is each entitled to a total award of
$6,872.
Brown J