BARTLE GROUP LIMITED trading as ACE TOWING AND HEAVY HAULAGE v THE NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 1828

BARTLE GROUP LIMITED trading as ACE TOWING AND HEAVY HAULAGE v THE NEW ZEALANDTRANSPORT AGENCY [2019] NZHC 1828 [27 September 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-378[2019] NZHC 1828BETWEEN BARTLE GROUP LIMITED trading asACE TOWING AND HEAVY HAULAGEPlaintiffOn the papersAND THE NEW ZEALAND TRANSPORTAGENCYDefendantCounsel: P A Morten for PlaintiffK Muirhead for DefendantT Mijatov for IntervenerJudgment: 27 September 2019JUDGMENT OF GRICE J(Costs)[1] The New Zealand Transport Agency (the Agency) has applied for costs inrelation to a successful interlocutory application allowing the police to intervene in thepresent proceedings.1[2] In an interlocutory matter costs should be fixed and they usually follow theevent.2 Nevertheless, the Court has a discretion.3[3] In this case Bartle Group argues that the discretion should be exercised torefuse or reduce any costs award for three main reasons:1 Bartle Group Ltd v The New Zealand Transport Agency [2019] NZHC 2168.2 High Court Rules 2016, r 14.2(1)(a).3 Rule 14.1.(a) The substantive declaratory matter, involving regulations in relation toheavy trucks, is a matter of public interest which has wide application.4(b) The application allowing the police to intervene was an indulgencefrom the Court. In such cases, a condition of the granting leave tointervene is often (as it was here) that the intervener cannot claim costs.Typically, it is the intervener themselves that apply to be joined to aproceeding. Here, the Agency applied. If the police had brought theapplication, as is normally the case, it would likely not be entitled tocosts.(c) As the proceedings were initiated in Wellington there was no reasonwhy counsel for the Agency could not have been local. That wouldtherefore exclude disbursements claimed associated with counseltravelling to Wellington for the hearing.[4] On the other hand, the Agency points to early notice being given that anapplication for intervention would be made. In particular, he points to the Minute ofDobson J who granted leave for such an application.5 It also says the application wasnecessary as the police may render assistance to the Court that it could not provide. Inaddition, it says the sensible and most cost effective way to proceed, given that Bartlewas seeking the matter be dealt with urgently, was for the Agency to deal withquestions of service and joinder in one application. It says Bartle could have agreedto the joinder in any event.[5] I do not attach much weight to the argument that this is a "public interest"matter. While other parties may always benefit from any declaration that the Courtmight make each case here is likely to be fact specific. I do not consider there is ahigh degree of public interest involved. It is primarily the parties involved who willbenefit from any declaration although there may be some wider application.4 Rule 14.7(e) and (g).5 Bartle Group Ltd v the New Zealand Transport Agency HC Wellington CIV-2019-485-378, 16July 2019 (Minute).[6] I am of the view costs should be awarded to the Agency. An application forjoinder is, to a certain extent, an indulgence but the application was signalled earlyand I have found that police submissions may well assist the Court. The interlocutoryapplication was therefore successful. I consider the Agency should not be denied costsbecause it, and not the police, took carriage of the application. It was an efficient wayto approach it for the reasons put forward by the Agency.[7] I also accept the Agency's submissions that it was more cost effective forcounsel to travel from Auckland for the hearing than to brief local counsel. They alsoneeded to travel the night before to avoid possible delays to the hearing due to travelproblems.[8] Taking a holistic approach, and recognising a discount is appropriate torecognise the application is an indulgence, I consider a 30 per cent discount on 2Bcosts is appropriate.[9] Accordingly, costs in favour of the Agency are awarded:(a) Assessed on the basis of 2B costs discounted by 30 per cent.(b) Disbursements for travel and accommodation are allowed._________________Grice J