Vipassana Foundation Charitable Trust Board v Auckland Council
[2017] NZHC 2116
•1 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-3290 [2017] NZHC 2116
BETWEEN VIPASSANA FOUNDATION
CHARITABLE TRUST BOARD Plaintiff
AND
AUCKLAND COUNCIL First Defendant
RAYMOND MYLES OʼBRIEN AND VICTORIA MEI SIEN PICHLER Second Defendants
AUCKLAND SHOOTING CLUB INCORPORATED
Third Defendant
Hearing: On the papers Counsel:
S J Ryan and S Cates for Plaintiff
N Whittington for First Defendants
J M Savage for Second and Third DefendantsJudgment:
1 September 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 1 September 2017 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Cullen – The Employment Law Firm, Wellington
Meredith Connell, Auckland
Blackwells, Auckland
VIPASSANA FOUNDATION CHARITABLE TRUST BOARD v AUCKLAND COUNCIL [2017] NZHC 2116 [1 September 2017]
[1] This is a costs judgment. The second defendants seek costs against the plaintiff, in short, on the basis that their position was meritorious overall, and the plaintiff succeeded only in relation to two relatively minor technical points. It is also noted that the plaintiff did not identify any material adverse effect on them. In those circumstances, the second defendants submit, having been largely successful, they are entitled to costs.
[2] The plaintiff, by contrast, submits it was successful in identifying deficiencies in the Auckland Council (the Council) process, which have required the Council to reconsider its decision. The plaintiff also says this Court’s decision not to grant interim relief or otherwise set aside the certificate of compliance was exceptional. Furthermore, the plaintiff does not accept it failed to identify effects on it, referring to the evidence of Ms McKay. The Court’s decision in this respect is also described as exceptional. Finally, the plaintiff emphasises it had a proper motive to bring the proceedings, namely, to establish an environmental/acoustic baseline. Again, reference is made to Ms McKay’s evidence and wider community of interest in the application.
[3] The parties’ costs submissions also reveal alternative chronologies of the events leading up to the commencement of the proceeding. The certificate of compliance was granted on 20 June 2016. The second defendants say that despite being aware of this, the plaintiff made no attempt to discuss any of the issues with them before issuing proceedings and serving them on 24 December 2016. The plaintiff says it did not learn of the certificate of compliance until September 2016, and that there were attempts to engage with Mr O’Brien (one of the second defendants) in early December. It says his response did not indicate any serious attempt to engage with the issues raised.
[4] Finally, the second defendants say the plaintiff withdrew or abandoned particular claims during the course of hearing. The plaintiff submits the lateness of the withdrawal of certain claims arose from delayed discovery by the Council.
[5] The plaintiff also brings to the Court’s attention that subsequent to my judgment of 28 June 2017,1 it received a report prepared by a senior enforcement officer at the Council, following a site inspection on 3 May 2017. This inspection report was not discovered. I interpolate this report is offered as evidence to show further non-compliance in terms of continued use of “the clubhouse” and an assessment that the area of earthworks exceeded 3,000m2.
Assessment
[6] An award of costs is a discretionary matter.2 The rules, however, provide a frame within which to make an award. Ordinarily, the successful party will obtain costs.3 But, in this case, as I endeavoured to make clear in my two judgments, I consider costs should lie where they fall.4 The reason for this is that the merits are evenly shared.5 The reasons dealing with relief in the two judgments apply with equal force in this context.6 It is unnecessary to repeat them.
[7] Additional reasons said to support a costs award do not cause me to change my view about this:
(a) The late withdrawal of claims by the plaintiff was a responsible step.
(b)I am not satisfied the plaintiff’s pre-trial conduct was such as to attract costs in favour of the second respondents.
(c) The so-called “exceptional” result corresponds to the substantive merits – to illustrate (in addition to the matters already mentioned in my two previous judgments) there was no probative evidence at the
hearing that the shooting range would cause even a minor adverse
1 Vipassana Foundation Charitable Trust Board v Auckland Council [2017] NZHC 1457.
2 High Court Rules 2016, r 14.1.
3 Rule 14.2(a).
4 Vipassana Foundation Charitable Trust Board v Auckland Council, above n 1, at [81], and
Vipassana Foundation Charitable Trust Board v Auckland Council [2017] NZHC 1492 at [12].
5 Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5]. See also Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZCA 544, (2007) 18 PRNZ 743 at [21]-[27], and Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2016] NZHC 2436 at [7](c).
6 Vipassana Foundation Charitable Trust Board v Auckland Council, above n 1, at [73]-[78] and
Vipassana Foundation Charitable Trust Board v Auckland Council, above n 4, at [6]-[11].
noise effect on the plaintiff’s members, with the Trust’s facility
located 1.2 km from the shooting range.7
(d)The alleged non-compliance with the conditions of the certificate of compliance cannot sensibly be resolved in a costs context and are, in any event, not directly relevant to the conduct of the parties in the proceedings.
Outcome
[8] Costs shall lie where they fall.
7 Notably Mr Hegley offered no evidence about the likely effect on the plaintiff ’s members.
Meanwhile, Mrs McKay’s unscientific opinion evidence about potential noise effects is
inadmissible opinion evidence: see Evidence Act 2006, s 23.
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