Yardley v Minister for Workplace Relations and Safety

[2022] NZHC 975

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-000001

[2022] NZHC 975

UNDER

the Judicial Review Procedure Act 2016 and the Declaratory Judgments Act 1908

IN THE MATTER

of an application for judicial review for the Covid-19 Public Health Response (Specified Work Vaccinations) Order 2021

BETWEEN

RYAN YARDLEY

First Applicant

JOSHUA WALLACE
Second Applicant

DEFENCE FORCE WORKER

Third Applicant

AND

MINISTER FOR WORKPLACE RELATIONS AND SAFETY

First Respondent

COMMISSIONER OF POLICE
Second Respondent

CHIEF OF DEFENCE FORCE
Third Respondent

ATTORNEY-GENERAL

Fourth Respondent

Hearing:	On the papers
Appearances:	M I Hague and A P Miller for the Applicants V McCall and E Cameron for the Respondents
Judgment:	9 May 2022

JUDGMENT (NO 2) OF COOKE J

(Costs)

YARDLEY v MINISTER FOR WORKPLACE RELATIONS AND SAFETY [2022] NZHC 975 [9 May 2022]

[1]    By judgment dated 25 February 2022 I upheld the applicants’ claims for judicial review and set aside the COVID-19 Public Health Response (Specified Work Vaccination Order) 2021.1

[2]    The applicants now seek costs. There is a large measure of agreement between the parties in relation to the award, including that the proceeding should be categorised as a category 2 proceeding, and that most of the steps should be awarded under time band B. But there are particular matters upon which the parties disagree.

Preparation of affidavits

[3]    First the applicants seek the costs of preparing affidavits under step 30 on a time band C basis claiming four rather than two days. This is opposed by the respondents on the basis that time band B was sufficient for preparing the affidavits from the applicants themselves, and that there was no need for affidavits from others affected by the challenged order.

[4]    I accept, however, that a comparatively large amount of time for this particular step is reasonably claimed in accordance with r 14.5(2)(c). This case turned on factual matters relating to the justification for the limit upon fundamental rights. A number of people were affected by the order and it was understandable that the applicants filed evidence from some of them. It is not unreasonable for the applicants to claim four days for preparing their affidavits. I accordingly allow the applicants’ claim under time band C for this step.

Uplift

[5]    The main difference between the parties relates to the applicants’ claim for an uplift of the costs award under r 14.6(3)(c). This provides that the Court can order a party to pay increased costs if:

The proceedings is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interest of those affected.

1      Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291.

[6]    The applicants seek a 50 per cent uplift of the costs award on this basis. Two reasons are advanced. First, that there was an error in the formulation of the purpose of the order that was only identified immediately before the hearing, and this required counsel for the applicants to undertake late and urgent work to address the reformulated purpose. Secondly, that the proceedings were of considerable importance for more than 100 workers throughout New Zealand, and that the case involved a limitation on their fundamental rights, subsequently held to be an unjustified and unlawful.

[7]    The respondents accept that the proceedings concerned matters of genuine public interest and importance, but do not accept that an uplift of as much as 50 per cent should be made. That is because the decision was limited to its own facts, it only affected a limited number of persons, and that the affected workers could still be dismissed from their employment in accordance with internal policies. The respondents suggest that an uplift of only 10 per cent is appropriate by analogy with the uplift allowed in Lindsay v Commissioner of Inland Revenue.2

[8]    I agree that an uplift is appropriate in the present case. The applicants brought these proceedings on behalf of a number of other persons such that r 14.6(3)(c) applies. There is a closely related provision in r 14.7(e) which contemplates reduced costs awards against unsuccessful applicants when the proceedings are in the public interest and the applicants have conducted them reasonably. When proceedings involve fundamental rights, including those under the New Zealand Bill of Rights Act 1990, a basis exists to increase a costs award in favour of a successful party, or to reduce the award against an unsuccessful party. Such alterations to the costs otherwise payable can be appropriate to ensure that the protection of fundamental rights is not weakened, and that costs consequences do not inhibit the bringing of proceedings or the proper recognition of fundamental rights. For example in Attorney-General v Udompun the Court of Appeal upheld an award of indemnity costs on this basis when a plaintiff successfully brought proceedings for Bill  of Rights  compensation.3  Similarly in New Zealand Council of Licensed Firearms Owners Inc v Minister of Police the Court

2      Lindsay v Commissioner of Inland Revenue [2021] NZHC 830, [2021] NZFLR 351 at [69]–[72].

3      Attorney-General v Udompun [2005] 3 NZLR 204 at [186]–[187] and [219]–[225].

reduced a costs award against an unsuccessful applicant for review by 20 per cent because of factors of this kind.4

[9]    I have not been provided information explaining the basis of the funding of the present proceedings, or the extent to which the applicants received financial assistance from other affected personnel, or more broadly. Applications for increased costs because an applicant is bringing proceedings on behalf of others may well be assisted by information or brief evidence on the extent to which the applicants have (or have not) been assisted in meeting the costs of the proceedings by others. Certainly if a significant uplift is sought it may be appropriate to provide such information or evidence.

[10]   I accept Ms McCall’s submission that the error in relation to the purpose of the order would not normally justify a percentage uplift for the whole proceeding, as the further work the error required would more accurately be accommodated by an uplift for trial preparation under step 32. But this is not a fixed approach. In the present case the fact that there will be an uplift under r 14.6(3)(c) means that this factor can be addressed as part of the overall assessment on the extent of the uplift. That is how I will proceed.

[11]   When deciding upon the extent of the uplift one of the relevant considerations is that the claim for costs is calculated on the basis that this is a category 2 proceeding as a consequence of the agreement between the parties when the proceedings were commenced. Without going behind that agreement it can be said that there may have been a basis for treating this as a category 3 proceeding given its importance and complexity. It is perhaps surprising that none of the three vaccine mandate cases that I have heard were argued by senior counsel for any of the applicants.5 But the importance and complexity of the issues arising in these cases could be said to have justified counsel having special skill and experience as contemplated by r 14.3(1). Had costs been assessed under category 3 the award would have been close to that claimed by the applicants under category 2 with the 50 per cent uplift.  This suggests

4      New Zealand Council of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 2110.

5      Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC 4012; Yardley v Minister for Workplace Relations and Safety, above n 1; and NZDSOS Inc v Minister for COVID-19 Response [2022] NZHC 716.

that the figure of the percentage uplift in itself may not necessarily reflect the significance of the increase in the costs award that is sought. The Court can also look at the increase in the monetary figure claimed. Here the applicants’ calculation involves a claim for $27,126.50. I agree that that is a low amount for a case that involved an issue affecting fundamental rights for a significant number of people with complex issues. In the circumstances I have decided that there should be a 50 per cent uplift which results in an award around $40,000 plus disbursements which is similar to the award had it been calculated under category 3.

Other issues

[12]   The costs of interlocutory applications that were not addressed by the Court should lie where they fall.

[13]   There should be no award of costs on the costs application. Such awards are not usual and there is no reason for it here.6 There is also no basis to uplift the costs award because of the offer made without prejudice except as to costs in relation to the costs award.

[14]   Costs are awarded on the basis determined above to be calculated and fixed by the Registrar if necessary.

Cooke J

Solicitors:

Frontline Law Ltd, Wellington for the Applicants Crown Law, Wellington for the Respondents

6      Tyre Collection Services Ltd v Le Roy [2016] NZHC 898 at [20]; Moda Systems NZ Ltd v McLaren Smart Processing Ltd [2022] NZHC 397 at [9].