Waimea Nurseries Limited v Director-General for Primary Industries
[2018] NZHC 2518
•26 September 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-577
[2018] NZHC 2518
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for review
BETWEEN
WAIMEA NURSERIES LIMITED
Applicant
AND
DIRECTOR-GENERAL FOR PRIMARY INDUSTRIES
First Respondent
LAURA WILLIAMSON, INSPECTOR
Second Respondent
VERONICA HERRERA, CHIEF TECHNICAL OFFICER
Third Respondent
Hearing: On the papers Counsel:
G D Pearson, E M Greig and J K Scragg for the Applicant J Catran and N Fong for the Respondents
Judgment:
26 September 2018
JUDGMENT OF COOKE J
(Costs)
[1] In my judgment of 23 August 2018 I expressed a provisional view on the appropriate award of costs in this proceeding. The parties are largely agreed on all issues in relation to costs. The parties in the Johnny Appleseed proceeding have reached complete agreement, but there are two outstanding issues between Waimea Nurseries Ltd and the respondents. Memoranda dated 10 and 24 September 2018 have been filed, and I now proceed to resolve the two outstanding issues.
WAIMEA NURSERIES v DIRECTOR-GENERAL FOR PRIMARY INDUSTRIES [2018] NZHC 2518 [26
September 2018]
Inspection
[2] First Waimea seeks an allowance under step 21 for 1.5 days for inspection of documents, totalling $4,950. The respondents oppose on the basis that there was no order for discovery in the proceeding, and accordingly no inspection under the discovery regime.
[3] In my minute of 6 August 2018 the proceedings were given an urgent fixture. I concluded at that time that it was not necessary to make discovery orders on the basis that the truly relevant documents would be provided in the respondents’ evidence. In part that was due to the need to urgently hear the applications for judicial review. In the normal course some discovery orders may otherwise have been appropriate. Any such orders would have been for tailored discovery, including because of the appropriately confined nature of Waimea’s challenge.
[4] I agree that in these circumstances giving an allowance for inspection under step 21 is not appropriate. On the other hand I also accept that there was a large quantity of material appended to the affidavits filed by the respondents in the Waimea proceeding, and that those documents needed to be considered. Such consideration cannot fairly be assumed to be included within the other allowed steps in the costs award. Put another way there was a legal cost incurred by Waimea that should be accommodated for in the costs award.
[5] In the circumstances, and by analogy to step 21, I award the applicants an allowance under category A, being 0.5 days, which by my calculation involves an award of $1,650.
Extension application
[6] The second disputed item involves claims by the applicants under steps 13 and 24, totalling 1.8 days, for the memorandum filed by the applicants in response to that filed by the respondents seeking an extension of the interim orders. That extension decision was addressed in my minute of 31 August 2018. In that minute I indicated that the applicants were entitled to costs on the extension application, and this should be included within the ultimate costs award.
[7] Again an allowance is appropriate. The respondents accept this, and say that the allowance should be under step 11 totalling 0.4 days at $1,320, but that the claim under the other steps for $4,950 is excessive.
[8] I largely agree with the respondents on this issue. Preparing the memorandum is analogous with preparing a memorandum for a case management conference, and an allowance of 0.4 days under step 11 is appropriate. To this should be added, however, an allowance under step 13 for the actual appearance at the telephone conference being 0.3 days, with the total allowance being 0.7 days, or $2,310.
[9]The parties are otherwise agreed on the costs award.
Cooke J
Solicitors:
Duncan Cotterill for the Applicant Crown Law for the Respondents
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