Waipapa Bay Protection Society Incorporated v Ariki Tahi Sugarloaf Wharf Ltd
[2024] NZHC 192
•15 February 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2022-419-306
[2024] NZHC 192
UNDER COVID-19 Recovery (Fast-track Consenting) Act 2020 IN THE MATTER OF
an appeal under clause 44 of Schedule 6 of the Act against the final decision of an
Expert Consenting Panel appointed under the Act
BETWEEN
WAIPAPA BAY PROTECTION SOCIETY INCORPORATED
Appellant
AND
ARIKI TAHI SUGARLOAF WHARF LTD
Respondent
Hearing: On the papers Appearances:
B S Carruthers KC for Appellant
B J Matheson and J Inns for Respondent R H Ashton for Third Interested Party
Judgment:
15 February 2024
COSTS JUDGMENT OF ANDERSON J
This judgment was delivered by me on 15 February 2024 at 3.30 pm pursuant to r 11.5 of the High Court Rules 2016.
……………………………… Registrar/Deputy Registrar
Solicitors:Oceanlaw New Zealand, Nelson McCaw Lewis, Hamilton Brookfields, Auckland
WAIPAPA BAY PROTECTION SOCIETY INCORPORATED v ARIKI TAHI SUGARLOAF WHARF LTD [2024] NZHC 192 [15 February 2024]
AND COROMANDEL MARINE FARMERS ASSOCIATION INCORPORATED
First Interested PartyNGATI WHANAUNGA INCORPORATED SOCIETY
Second Interested Party
THAMES COROMANDEL DISTRICT COUNCIL
Third Interested Party
Introduction
[1] By judgment dated 29 November 2023 I dismissed the Waipapa Bay Protection Society Inc’s1 appeal of an Expert Consenting Panel decision under the COVID-19 Recovery (Fast-track Consenting) Act 2020.2 The parties have been unable to agree costs.
[2] The respondent, and successful party, Ariki Tahi Sugarloaf Wharf Ltd3 seeks costs on a 2B basis against the Society. It also seeks to recover accommodation and mileage costs as disbursements. The Thames-Coromandel District Council as interested party also seeks costs on a 2B basis plus its disbursements.
[3] The Society submits that only one set of reduced costs should be awarded and that disbursements be limited to mileage, not accommodation.
The issues
[4] Costs are at the discretion of the court.4 This discretion is qualified by rr 14.2-14.17 of the High Court Rules 2016. Generally, the party who fails with respect to a proceeding should pay costs to the party who succeeds.5 It is not in dispute that ATSWL as successful party is entitled to costs. Nor is it disputed that costs calculated on a 2B basis are $12,667.
[5]However, the Society submits that:
(a)Costs in favour of ATSWL should be reduced by 50 per cent on account of the public interest nature of the proceeding and because ATSWL failed on its main claim.
(b)Only one set of costs is appropriate, not in favour of both ATSWL and the Council.
1 The Society.
2 Waipapa Bay Protection Society Inc v Ariki Tahi Sugarloaf Wharf Ltd [2023] NZHC 3379.
3 ATSWL.
4 High Court Rules 2016, r 14.1.
5 Rule 14.2(1)(a).
(c)Disbursements should be allowed for mileage only, not accommodation, given the hearing was one-day and commenced at 10 am.
Should scale costs be reduced to reflect public interest or degree of success?
Public interest?
[6] Rule 14.7(e) of the High Court Rules permits the court to reduce costs payable if the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding. Both limbs must be satisfied for a reduction in costs. It is not suggested that the Society acted unreasonably. At issue is whether the proceeding concerned a matter of public interest and if so whether scale costs should be reduced on that basis.
[7]In Movement v Waka Kotahi Grice J held:6
While costs will usually follow the event, where there is a matter of genuine public interest beyond the interests of the immediate litigants, the case has merit, and the litigant has acted reasonably, the Court will take into account the principle that awards of costs should not be such as to act as a deterrent to public interest groups in the bringing of cases.
[8] A party will not advance a matter that is in the public interest simply because a small number of people support that party’s position in challenging a public decision,7 although representation of the interests of an identifiable subsection of the community beyond the party can suffice.8 It is not sufficient that a party that is pursuing its own private interests happens to participate in a proceeding that has the qualities of some general importance beyond the dispute.9
[9] The Society submits that scale costs should be reduced on account of the proceeding “concern[ing] a matter of public interest, and the party opposing costs act[ing] reasonably in the conduct of the proceeding”. The Society submits that to invoke the public interest exception the proceeding must concern a matter of genuine
6 Movement v Waka Kotahi [2023] NZHC 809 at [44].
7 Evans v Clutha District Council [2019] NZHC 549 at [8].
8 Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2021] NZHC 944 at [22].
9 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167, (2014) 25 PRNZ 637 at [41].
public interest, have merit and be of general importance beyond the interests of the particular unsuccessful litigant. It submits that all three factors are present here:
(a)There is genuine interest in the rigorous and correct assessment of any proposals for further reclamation of the coastal marine area.
(b)The Expert Consenting Panel erred in that regard.
(c)While the members of the Society are all directly affected by the environmental effects of the project, they are not the only persons with an interest – Ngaati Whanaunga Inc Society, representing mana whenua, were similarly interested and became involved in the proceeding.
(d)While a hyper-critical analysis or dissection of the Panel’s decision is not appropriate, it is of general importance that the relatively new (but since repealed) functions of the Panel are appropriately exercised given the speed with which important decisions regarding common resources are being made.
[10] The Society submits that the fact its members own property that will be affected by the works is not determinative of whether the public interest exception can apply.
[11] I accept ATSWL’s submission that the public interest exception does not justify reduction in costs here. The members of the Society own property in the vicinity of the proposed wharf and the issues it raised around visual and noise affects were matters that would affect the members of the Society personally. Like Mr Belgiorno-Nettis in Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, the Society has a vested interest in the proceedings and accordingly this is not a case where the litigant has no personal interest at stake.10 Further, I agree that this case cannot be characterised as sufficiently raising novel or untested points of law of general importance. While it is correct that other persons had an interest, the position being
10 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2018] NZHC 926 at [17].
advanced was that of the Society and its primary concern being the effects impacting on them.
Degree of success?
[12] Although ATSWL succeeded overall, the Society says it failed in relation to an issue which significantly increased the costs to the appellant and ATSWL contributed unnecessarily to the time or expense of the proceeding by either taking an argument that lacks merit or failing, without reasonable justification, to admit facts or accept a legal argument. It submits that by strongly contesting the Panel had failed to apply a bundled approach (which was a main point in the appellant’s submissions and on which they succeeded), ATSWL contributed unnecessarily to costs and should not therefore be entitled to full recovery.
[13] I do not consider any reduction is appropriate on account of ATSWL’s submissions on the bundling issue. This is not a case where it is difficult to ascertain the successful party. Nor is it a case where any party acted unreasonably. While the Society was successful on the issue of bundling, it was ultimately unsuccessful in seeking the relief it sought. Moreover, there were other arguments on which the Society was unsuccessful relating to effects, that took up considerable argument. It is not appropriate to engage in a minutiae break down of success/failure — that is not the exercise contemplated by the High Court Rules.
One set of costs or two
[14]Rule 14.15 of the High Court Rules provides that:
The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—
(a)several defendants defended a proceeding separately; and
(b)it appears to the court that all or some of them could have joined in their defence.
[15] A “defendant” is a person served or intended to be served with a proceeding.11 The notice of appeal was served on those entitled to comment on ATSWL’s application including the Council.
[16]Priestley J described the purpose of the predecessor provision to r 14.15 as:12
… requiring courts to exercise some caution before awarding costs, without more, in favour of multiple parties, particularly when there is some overlap or community of interest in the litigation position of those parties.
[17]The Society submits that:
(a)As shareholder of one-third of the shares in ATSWL the Council could have joined ATSWL in its defence. It says there was no need for the Council to be separately represented, particularly given the clear overlap and community of interest in the litigation position of the applicant company and its shareholder.
(b)The Council in its separate position did not materially contribute to the proceeding and that all matters advanced by the Council could have been argued by ATSWL (and presumably would have been had the interested party not argued the matters separately).
(c)Neither the Council’s notice of intention to appear nor the legal submissions for the Council implied that its involvement was limited to its regulatory role. In these circumstances, the Society submits there is no justification for an award of two sets of costs.
[18] Ultimately r 14.15 is intended to minimise costs by shortening hearings where a joint defence can reasonably be expected.13 The Court should look in a realistic way at whether the parties have common or overlapping interests. Another key issue is whether one party could or did rely upon the evidence or submissions on the other.14
11 High Court Rules, r 1.3(1).
12 Norfolk Trustee Co Ltd v Tattersfield Securities Ltd HC Auckland CIV 2004-404-3668, 30 March 2005 at [51].
13 Independent Māori Statutory Board v Auckland Council [2017] NZHC 678 at [8].
14 At [9].
[19] In Kaikoura and Hurunui Landowners Association Inc v Minister of Fisheries the High Court said that the threshold in r 14.15 was not met because the Crown would not have agreed to joint representation with a private party in public law litigation in light of its particular responsibilities in such litigation (and that it would not have been appropriate for it to do so).15
[20] Here, I accept the Council submission that it would not have been appropriate for it to have joined with ATSWL due to the role and responsibilities of Council as the local authority. Rule 14.15 is not engaged. The Council correctly says that it has a statutory responsibility for the administration and enforcement of the Resource Management Act 1991. Whether or not this was express, that was the basis on which it participated in the litigation. Its interest is distinct from that of ATSWL. It is true that the Council has a minority shareholding in ATSWL, but this is held in its corporate capacity as distinct from its regulatory role.
[21] The Council adopted the legal submissions of ATSWL on several of the alleged errors of law. However the Council did assist the Court with submissions on issues of particular relevance and concern to the Council as the responsible local authority – those being: the context of the social and economic benefits of the wharf upgrade; the correct approach to interpretation of policy 10 of the New Zealand Coastal Policy Statement 2010; and on the suitability of the Kōpū Marine Precinct. I agree that an award of costs to the Council is appropriate in this case, particularly given the Council’s costs are otherwise borne by the ratepayers in the district.
[22] While two sets of costs are appropriate, I do not agree with two full 2B awards. A discount to the 2B costs sought by Council is appropriate given the relative greater and primary role of ATSWL in the appeal. Rather than making a simple percentage adjustment to the total 2B costs16 I have taken a more granular approach:
15 Kaikoura and Hurunui Landowners Association Inc v Minister of Fisheries [2022] NZHC 3425 at [11].
16 Compare Opua Coastal Preservation Inc v Far North District Council [2020] NZHC 1499 at [18]– [24]; Financial Markets Authority v Hotchin [2013] NZHC 2082 at [10]–[12]; and Re Blue Chip New Zealand Ltd (in liq) HC Auckland CIV-2009-404-1511, 3 May 2011 at [18]–[19].
(a)I observe that the Council has claimed band B allocations for commencement of response to the appeal (0.5 days), preparation for the first case management conference (0.4 days), and for filing a memorandum for this (0.4 days). A band A allocation is appropriate given the Council’s more limited role and what I observe from my review of the file as to the scope of steps in fact taken. Accordingly, the costs should be reduced for those steps to allocations of 0.3, 0.2 and
0.2 (0.7 rather than 1.3). That means an award of $1,673 not $3,107 for those steps.
(b)As well, I do not consider it appropriate to order the Society to pay two full sets of 2B costs for submissions. There should be some reduction in the costs awarded to the Council to reflect that its submissions were directed to discrete aspects and it otherwise supported and adopted the legal submissions for ATSWL. For this purpose, I make a reduction for the 2B allocation for that step from three days to two (recognising that more than an A allocation of one day is justified for this step). That means an award of $4,780 not $7,170 for this step).
[23] For the above reasons, two sets of costs are appropriate, one in favour of ATSWL and one for the Council. However, I reduce the costs award in favour of the Council to $8,843. Checked against a broad brush, this is about 70 per cent of 2B costs, which seems at the right level.
Disbursements
[24] ATSWL seeks disbursements of $579.59 for travel and accommodation. The Society submits that only mileage of $250 should be recoverable.
[25] Whether accommodation and travel costs are reasonable (and therefore recoverable as disbursements) will depend on the circumstances.17 It was reasonable for the parties to engage Auckland-based counsel and therefore incur travel costs. However, I do not accept that any accommodation expense was reasonably necessary
17 Buis v Accident Compensation Corporation (2010) 19 PRNZ 585 (HC) at [25].
for the conduct of the proceeding. The hearing commenced at 10 am and was one day. I disallow ATSWL’s accommodation costs but allow the travel costs.
Conclusion
[26]I award:
(a)Costs in favour of ATSWL of $12,667.
(b)Costs in favour of the Council of $8,843.
[27] The disbursement claims are accepted excluding ATSWL’s accommodation cost (I allow $250 for Council’s travel costs).
Anderson J
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