Tuna v Te Urewera Board

[2024] NZHC 2268

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-000105

[2024] NZHC 2268

UNDER

the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

WHARENUI CLYDE TUNA

Applicant

AND

TE UREWERA BOARD

First Respondent

TRUSTEES OF TUHOE – TE URU TAUMATUA

Second Respondent

DIRECTOR-GENERAL OF CONSERVATION

Third Respondent

Hearing:	On the papers
Judgment:	13 August 2024

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Tuesday, 13 August 2024 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Izard Weston, Wellington. Buddle Findlay, Wellington. Crown Law, Wellington.

MG Colson KC, Wellington. WL Aldred KC, Wellington. TC Stephens KC, Wellington. BR Arapere, Whanganui.

TUNA v TE UREWERA BOARD [2024] NZHC 2268 [13 August 2024]

[1]                 Mr Tuna seeks costs against the respondents following his successful judicial review claim.1 Typically, costs follow the event.

[2]                 The first and second respondents contest costs on the bases (a) all three respondents offered to settle over a month before trial,2 and (b) Mr Tuna failed on one of his causes of action (which alleged a breach of a duty to consult).3 Consequently, the first and second respondents say costs should lie where they fall.

[3]                 I disagree for two reasons. First, the settlement offer was confined. That offer did not encompass what was probably the most significant aspect of Mr Tuna’s claim, namely that the first and second respondents breached ss 5(1)(b),  (c) and 5(2) of    Te Urewera Act 2014. Second, Mr Tuna’s lack of success on one cause of action is better addressed by a reduction in costs rather than their refusal; while significant, the unsuccessful cause of action was only one limb of a multi-limb claim. I reduce costs by 25 percent on the basis that cause of action comprised approximately one-quarter of the case.

[4]                 The third respondent contends her costs liability should be no more than a third of the costs awarded:

... Although the default position under r 14.14 is that liability for costs is joint and several, that is “subject to the Court’s overriding discretion” and can “give way in appropriate cases” (see Hong v Deliu [2016] NZCA 75, [2016] NZAR 667 and Ware v Reid [2019] NZHC 1706 at [56]). As McGechan on Procedure explains, “the court tends not to order one unsuccessful defendant to contribute to the costs of another successful defendant”. The learned author cites, in support, this Court’s decision in Morton v Douglas Homes Ltd (No 2) [1984] 2 NZLR 620 at 633.

[5]                 The first and second respondents do not appear to contest such an approach, and there is little risk those respondents will not meet, or be able to meet, their obligations. I, therefore, adopt the third respondent’s suggestion.

1      Tuna v Te Urewera Board [2023] NZHC 3680 and Tuna v Te Urewera Board [2024] NZHC 1526.

2      High Court Rules 2016, r 14.7(f)(v).

3      Rule 14.7(d).

Result

[6]Mr Tuna is awarded costs of $28,948.88.4

[7]The third respondent is (only) liable for costs amounting to $9,649.63.

……………………………..

Downs J

4      I certify for second counsel given the nature and complexity of the claim.