Wislang v Attorney-General - [2020] NZHC 3172

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-006

[2020] NZHC 3172

UNDER the Judicial Review Procedure Act 2016; and the Territorial Sea, Contiguous Zone and
Exclusive Economic Zone Act 1977; and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012

IN THE MATTER OF

an application for judicial review

BETWEEN

MILES ROGER WISLANG

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

AND

WHITE ISLAND TOURS LTD

Second Respondent

AND

WORKSAFE NEW ZEALAND

Third Respondent

Hearing: On the papers

Judgment:

2 December 2020

JUDGMENT OF GRICE J

(Costs)

[1] Applications for costs in this matter have been made by each of the first, second and third respondents. They have each filed memoranda in support of their applications.

WISLANG v THE ATTORNEY-GENERAL [2020] NZHC 3172 [2 December 2020]

Background

[2] This was an application by Dr Wislang for judicial review based on alleged failures of relevant ministers (the Attorney-General for those ministers was the first respondent), WorkSafe, the regulator of adventure activity operators (the third respondent) and White Island Tours Limited (WITL), the adventure activity operator involved in the expedition to Whakaari/White Island on 9 December 2019. Of the 47 people visiting the island, 221 died and 25 were injured in an eruption of the volcano on the island that day.

[3] Dr Wislang sought judicial review against WorkSafe and the named ministers, claiming that the tragedy would not have occurred had the adventure activity operator been regulated in the manner he suggested in his application. He also sought orders prohibiting visits to the island.2

[4] Dr Wislang abandoned his claim against WITL in the course of his submissions at the hearing on 31 August 2020. I noted the proceedings were discontinued and, to the extent necessary, any obligations by WITL based on its voluntary undertaking to the Court made at the time interim relief was sought, were discharged.3

[5]The application for judicial review was dismissed in its entirety.4

Principles applicable to costs applications

[6] The Court has an overriding discretion in relation to costs. The discretion must be exercised in a principled manner and consistently with the costs regime in the High Court Rules 2016.

[7] The primary purpose of a costs award is to compensate a successful party for the costs they have expended in having their legal rights recognised and enforced by the Court.

1 Since the delivery of the substantive judgment, another victim of the disaster has passed away.
2 Wislang v Attorney-General [2020] NZHC 2588 at [1].
3 At [17].
4 At [129].

[8]The principles are set out at r 14.2 which, as relevant, provides:

14.2 Principles applying to determination of costs

(1)The following general principles apply to the determination of costs:

(a)the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

…

(g) so far as possible the determination of costs should be predictable and expeditious.

[9] The principle in r 14.2(1)(a) that costs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 3172
Decision Date: 2 December 2020

CaseChat Overview and Summary

In Wislang v Attorney-General [2020] NZHC 3172, Dr Miles Wislang applied for judicial review against the government ministers, Worksafe and White Island Tours Limited in relation to the Whakaari/White Island eruption. The application was dismissed and the court was required to decide on costs. The respondents each filed memoranda in support of their applications for costs. Dr Wislang filed a response, accepting the calculations of costs provided by the three respondents but submitted that the respondents were responsible for the unnecessary complications and protraction of the proceedings. The court found that there was no merit in Dr Wislang’s submission that the quantum of any costs award should be adjusted because the respondents should have applied to strike out the proceedings. The court also found that there was no public interest element in Dr Wislang’s claim against White Island Tours Limited. White Island Tours Limited sought indemnity or increased costs on the basis that Dr Wislang had acted unnecessarily in commencing or continuing the proceedings. The court found that an increased costs of 50 per cent to recognise unnecessarily prolonging the proceedings, as well as recognition of the Calderbank offer, was appropriate to recognise the fact that White Island Tours Limited had to incur significant costs participating in the proceeding and defending itself. Costs were awarded to all three respondents. In relation to the first respondent and the third respondent costs were awarded on the basis of a category 2B award. In the case of White Island Tours Limited, an award was made on the basis of 2B costs categorisation together with a 50 per cent uplift, together with costs for preparation of the costs submissions, is awarded.

Orders