Wislang v Attorney-General

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.