BURGOYNE v NORTHLAND REGIONAL COUNCIL [2020] NZHC 1424

BURGOYNE v NORTHLAND REGIONAL COUNCIL [2020] NZHC 1424 [23 June 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2019-488-23[2020] NZHC 1424BETWEEN A BURGOYNE/TE TAUMATA NGATIKURI RESEARCH UNITAppellantAND NORTHLAND REGIONAL COUNCILRespondentAND MOTUTANGI WAIHARARA WATERUSERS GROUPConsent HolderHearing: On the papersCounsel: Appellant in personG J Mathias for RespondentA M B Green for Consent HolderJudgment: 23 June 2020JUDGMENT OF PAUL DAVISON J[Re Costs]This judgment was delivered by me on 23 June 2020 at 3:00 PMpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Thomson Wilson, WhangareiBrookfields, AucklandBackground[1] On 17 February 2020, I dismissed the appellant's appeal against a decision ofthe Environment Court concerning the granting of a consent to the MotutangiWaiharara Water Users Group (the Consent Holder).1[2] Mr Burgoyne (the appellant) had previously paid the sum of $2,230 as securityfor costs for his appeal to the Registrar on 24 May 2019.[3] On 9 March 2020, Northland Regional Council (the respondent) filed anapplication seeking an order for costs on a 2B basis against Mr Burgoyne. Therespondent says however, that as scale 2B costs calculation would yield a sum greaterthan the actual costs the respondent incurred, their application is limited to the lessersum of actual costs, which total $4,950. The reason that the respondent's costs aresignificantly less than those claimed by the Consent Holder is because the preparatorywork to respond to the appeal was mainly undertaken by counsel for the ConsentHolder.[4] On 9 March 2020, the Consent Holder also filed a costs application. TheConsent Holder seeks an order for indemnity costs against the appellant. In thealternative, it seeks scale 2B costs with increased costs by means of a 50 per cent uplifttogether with disbursements, totalling $23,757.23; or scale 2B costs anddisbursements being the sum of $16,527.48.[5] The Consent Holder seeks an order for indemnity costs on the grounds that theappellant acted vexatiously, frivolously, improperly, or unnecessarily in commencingand conducting the appeal.[6] The appellant was served with the Consent Holder's application for costs bypost on 10 March 2020. On 28 April, he had still not filed a response. In a Minutedated 30 April 2020, I directed the appellant to file his submissions on costs by 5 pmon 15 May 2020.1 Burgoyne v Northland Regional Council [2020] NZHC 189; Burgoyne v Northland RegionalCouncil [2019] NZEnvC 28.[7] On 8 May, the appellant sent a letter to the Registrar of the High Courtexplaining that he had not been able to file any written submissions due to the closureof post offices during the COVID-19 lockdown, his age (83 years), his lack of acomputer or email, the Health Act 1956, and the Bill of Rights Act 1990.[8] The appellant's 8 May letter was not sent to or served on the Consent Holderwhich, by memorandum dated 2 June 2020, requested the Court to proceed todetermine the costs applications on the papers.Northland Regional Council's application for actual costs[9] The party who fails with respect to a proceeding should pay costs to the partywho succeeds.2 As a successful party, the respondent is entitled to costs on a 2B scalebasis. However, as their actual costs ($4,950) were less than a calculation of the 2Bscale costs, it is appropriate that the appellant only pay the respondent's actual costs.All matters relating to costs are at the discretion of the Court.3 It is inconsistent withthe principles applicable to costs for a party to derive a benefit by recovering in costsmore than they have actually incurred by way of costs. I accordingly find that therespondent is entitled to an award of costs in the sum of $4,950 being the amount ofcosts actually incurred.Motutangi Waiharara Water Users Group (Consent Holder) application forindemnity costs[10] Pursuant to r 14.6 of the High Court Rules 2016, the Court has the power tomake an order for increased costs4 and indemnity costs.5 Rule 14.6(4)(a) relevantlyprovides that:The court may order a party to pay indemnity costs if—(a) the party has acted vexatiously, frivolously, improperly, orunnecessarily in commencing, continuing, or defending aproceeding or a step in a proceeding; or2 High Court Rules 2016, r 14.2(1)(a).3 High Court Rules 2016, r 14.1.4 Rule 14.6(3).5 Rule 14.6(4).[11] The Court of Appeal in Bradbury v Westpac Banking Corp said as regards thecosts provisions in the High Court Rules that:6The distinction among our three broad approaches: standard scale costs;increased costs; and indemnity costs may be summarised broadly:(a) standard scale applies by default where cause is not shown to departfrom it;(b) increased costs may be ordered where there is failure by the payingparty to act reasonably; and(c) indemnity costs may be ordered where that party has behaved eitherbadly or very unreasonably.Indemnity costs, which depart from the predictability of the RulesCommittee's regime, are exceptional and require exceptionally bad behaviour.That is why to justify an order for such costs the misconduct must be"flagrant": Prebble v Awatere Huata (No 2) [2005] 2 NZLR 467 at [6] (SC).[12] In N-Tech Ltd v Abooth Ltd, Kós J observed, as regards increased andindemnity costs:7It follows from these authorities that increased or indemnity costs may beawarded on the basis of lack of merit, in a case where the trial is not completed,only where the lack of merit is both obvious and incontrovertible. So clearlyso that there is no reasonable possibility that the Court might form a differentview with the benefit of all the evidence and closing submissions. No difficultor detailed speculation is involved. The claim is and was so flawed thatnothing in the evidence and submissions to follow could save it – and theplaintiff has acted unreasonably in bringing or continuing the claim. It is, thusstated, a double hurdle. The first assesses the claim; the second, the claimant'sconduct.[13] Here the Consent Holder submits that the appellant:(a) Made irrelevant allegations, including allegations of fraud andbreaches of the Overseas Investment Act 2005 and the Heritage NewZealand Pouhere Taonga Act 2014, for which he ought to have knownthere was no proper basis.(b) Failed to attend the first scheduled hearing of the appeal on 3 October2019, despite being sent prior notice a number of times by the court6 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] NZLR 400 at [27] and [28].7 N-Tech Ltd v Abooth Ltd [2012] NZHC 1167 at [108].registry informing him of the hearing date. His failure to attend on thatoccasion wasted the time of the Court and other parties.(c) Proceeded in wilful disregard of known facts and clearly establishedlaw; Palmer J's Minute of 3 October 2019 warned the appellant that thematters relating to the Overseas Investment Act 2005 appearedirrelevant to the appeal, and also noted the appellant's request toinclude this irrelevant material in the common bundle.(d) Pursued an appeal which was hopeless and ought never to have beenbrought.[14] In my decision of 17 February, I summarised the merits of the appellants'appeal and his presentation of the appeal as follows:8I shared the Environment Court Judge's difficulty in following the argumentspresented in support of Mr Burgoyne's appeal. However as I understand it heessentially raises two points.Nothing advanced or submitted by Mr Burgoyne, or on his behalf, hasidentified any error of law made by the Environment Court Judge that thisCourt should correct on appeal.[15] It was clear that the appellant's appeal lacked merit and that his discursivepresentation made it difficult for the other parties to address in reply. However, in myview the reason for the absence of any cogent grounds of appeal and for theshortcomings of the appellant's presentation of his arguments in support of his appealwas his lack of familiarity with the law and legal process, rather than any deliberateintention to introduce extraneous information. The appellant presents as an elderlyand committed litigant-in-person who, despite his appeal lacking merit, is neverthelesswell-intentioned, and motivated by a desire to protect a valuable water resource ofcultural significance to him. In these circumstances, it would be quite unjust andinappropriate to construe his conduct as being very unreasonable, or even justunreasonable, such as to warrant making an order for either indemnity or increased8 At [14] and [27].costs. However, as a successful party the Consent Holder is entitled to costs and Iconsider the appropriate measure of costs to be pursuant to scale 2B. I accordinglyapprove the schedule of 2B costs as submitted by the Consent Holder with theexception of the three days claimed for the preparation of written submissions. I allowand substitute two days as being reasonable for that step.Result[16] I make an order for costs against the appellant in favour of the NorthlandRegional Council for the sum of $4,950.[17] I make an order for costs against the appellant in favour of the MotutangiWaiharara Water Users Group as set out in their schedule of costs calculated pursuantto scale 2B, with an adjustment for the step relating to preparation, which shall becalculated on the basis of two days._________________________Paul Davison J