Vipassana Foundation Charitable Trust Board v Auckland Council

[2019] NZHC 2540

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-3290

[2019] NZHC 2540

BETWEEN

VIPASSANA FOUNDATION CHARITABLE TRUST BOARD
Plaintiff

AND

AUCKLAND COUNCIL

First Defendant

RAYMOND MYLES O’BRIEN AND VICTORIA MEI SIEN PICHLER
Second Defendants

AUCKLAND SHOOTING CLUB INCORPORATED

Third Defendant

Hearing:

On the papers

Counsel:

S J Ryan for Plaintiff

N Whittingham and P Comrie-Thomson for First Defendant J M Savage for Second and Third Defendants

Judgment:

8 October 2019

JUDGMENT OF WHATA J

This judgment was delivered by me on 8 October 2019 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Pidgeon Law, Auckland

Meredith Connell, Auckland Blackwells, Auckland

VIPASSANA FOUNDATION CHARITABLE TRUST BOARD v AUCKLAND COUNCIL [2019] NZHC 2540
[8 October 2019]

[1]    I have an application for costs in this matter. The Court of Appeal, in a decision dated 10 April 2019, allowed an appeal against my decision refusing to set aside a certificate of compliance. The Court of Appeal directed that the costs in the High Court be determined by me. The plaintiff seeks costs against the defendants jointly and/or severally on the basis of its success.

[2]The second and third defendants submit:

(a)The Council should meet the award of costs in full because:

(i)This Court acknowledged that the second defendants had diligently assessed the viability of the site for the activity and had invested in establishing a shooting range in good faith;

(ii)Having made the request and supplied the Council with the further information requested of them, there was nothing more they could reasonably have been expected to do;

(iii)Once the plaintiff had commenced judicial review proceedings in the High Court, they found themselves disadvantaged by the Council changing its position in relation to the interpretation of the discharge rules and Air, Land and Water plan; and

(iv)The interpretation of the noise rules and discharge rules had a degree of public importance, notwithstanding the notification of the proposed Auckland Unitary Plan and the interpretation of those rules had a bearing on other shooting clubs within the Auckland region operating without discharge permits and in reliance on compliance with the noise rules.

(b)They should not be jointly or severally liable for those costs because they provided all information requested by the Council and there is nothing more they could do except wait for the Council’s decision on the request; and

(c)They also say that they face difficulty because the Council’s position, in relation to the interpretation of its own District Plan in relation to the discharge of contaminants, wavered.

[3]The Council submits:

(a)It should not be responsible for the full costs incurred by the plaintiff because it did not defend the grant of the certificate;

(b)It should not be responsible for discrete parts of the proceedings for which it was not responsible and in which it took no part, specifically those costs associated with the plaintiff’s:

(i)application for interim orders prohibiting the gun club from taking action consequential on the grant of the certificate of compliance;

(ii)opposition to the gun club’s interlocutory applications for security for costs; and

(iii)opposition to the gun club’s applications for costs, following the first High Court decision, when applications had been expressly discouraged by the Court.

Assessment

[4]    Costs normally follow the event. The plaintiff succeeded insofar as it obtained an order setting aside the certificate of compliance. It should therefore have its costs on a 2B basis and disbursements as fixed by the registrar, against all defendants subject to the following (per r 14.7(g)):

(a)The award against the second and third defendants should be reduced by 25 per cent to reflect the fact that the plaintiff effectively established only one of multiple grounds for review;1 and

(b)The award against the Council should be reduced by 75 per cent to account for the fact it did not oppose the application (or the interlocutory applications) noted at [3] above.

[5]    I reject the claims by the second and third defendants in respect of the Council. They chose to defend the plaintiff’s claim. It does not matter that the Council failed to discharge its duty particularly given that, in the end, it materially erred only insofar as concerned earthworks, a matter upon which the second and third defendants should have been able to provide adequate information.2

[6]Quantum should be agreed but, if not, will be fixed by the registrar.

1      See Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379 at [21] and [26].

2      Beach Road Preservation Society Inc v Whangarei District Council (2002) 16 PRNZ 13 at [21].