BELGIORNO-NETTIS v AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL [2020] NZHC [183]

BELGIORNO-NETTIS v AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL [2020] NZHC[183] [17 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-002333CIV-2016-404-002335[2020] NZHC 183UNDER The Local Government (AucklandTransitional Provisions) Act 2010 and theResource Management Act 1991IN THE MATTER of an appeal under section 158 of the LocalGovernment (Auckland TransitionalProvisions) Act 2010ANDIN THE MATTER OF an application for judicial review under theJudicature Amendment Act 1972BETWEEN FRANCO BELGIORNO-NETTISPlaintiff/AppellantAND AUCKLAND UNITARY PLANINDEPENDENT HEARINGS PANELFirst DefendantAND AUCKLAND COUNCILSecond Defendant/RespondentHearing: On the papersCounsel: S J Ryan Plaintiff/AppellantM C Allan & L M Wansbrough R S Ward for SecondDefendant/RespondentDr C E Kirman and A K Devine for Housing New ZealandCorporation (Intervenor)Judgment: 17 February 2020COSTS JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 17 March 2020 at 11:00ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarIntroduction[1] In 2017, Mr Belgiorno-Nettis (the plaintiff) appealed from and sought judicialreview of a decision of the Auckland Council (the Council) in relation to an aspect ofthe Auckland Unitary Plan in the High Court.1 Both the appeal and the judicial reviewwere primarily founded on the proposition that the Independent Hearings Panel (thePanel) and the Council had failed to provide reasons (or adequate reasons) for theirrecommendations and decisions affecting the properties in respect of which MrBelgiorno-Nettis had made submissions to the Panel. Housing New ZealandCorporation (the Corporation) was a party to the appeal under s 301 of the ResourceManagement Act 1991 and was granted leave to intervene in the application forjudicial review. I dismissed the appeal and the application for judicial review.2[2] In 2018, the plaintiff applied for leave to appeal a point of law arising from theHigh Court 2017 substantive judgment pursuant to s 67 of the Judicature Act 1908.3 Idismissed the application for leave to appeal.4 In my costs judgment, I found theCouncil and the Corporation entitled to Category 2B costs and disbursements inrespect of both the High Court 2017 substantive judgment and the High Court 2018application for leave to appeal.5[3] In 2019, the plaintiff's appeal against the refusal to grant judicial review, andan application for leave to appeal the determination of a point of law was heard in theCourt of Appeal.6 The Court of Appeal allowed the appeal against the refusal to grantjudicial review, granted the application for judicial review, and declined theapplication for leave to appeal.7 In relation to costs, the Court said:8[118] Mr Belgiorno-Nettis, although he has not got the orders he sought, haslargely succeeded on his substantive arguments. The appeal has been allowedand a report of reasons ordered. This was the respondents' preferred option1 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2017] NZHC 2387,[2018] NZRMA 1 [High Court Judgment].2 At [135].3 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2018] NZHC 459 [LeaveJudgment].4 At [63].5 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2018] NZHC 926 at [35].6 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175.7 At [114]-[117].8 Emphasis added.should the appellant succeed but argument on the point did not occupy muchtime. The Council's general position was to seek to have the appeal dismissed.[119] We regard Mr Belgiorno-Nettis as the successful party. He is entitledto costs in this Court for a standard application on a band A basis and usualdisbursements, certified for two counsel, and payable by the respondents. Weexclude the Corporation as it played only a small part in the proceeding, andfocused on relief, where it was to a degree successful, although not to theextent in all the circumstances that entitles it to costs.[120] The cost orders made by the High Court in favour of therespondents and the Corporation are quashed. Costs are to be determinedafresh in the High Court, in the light of this judgment.[121] Dr Kirman for the Corporation submitted that even if the appeal wasallowed, the costs order in her client's favour in the High Court should stand,as in the High Court hearing the appeal still related to some land in which theCorporation had an interest, and so the Corporation was obliged to take steps.We are not sufficiently familiar with what transpired in the High Courtto rule on that. So the Corporation costs order is quashed, and it is to bereconsidered by the High Court in the light of this judgment with theother costs orders.[4] Mr Belgiorno-Nettis, as the successful plaintiff and appellant, now applies forcosts in relation to the High Court proceedings (substantive and leave to appeal)against the Council and the Corporation.[5] The plaintiff seeks costs on a 2B basis at a daily recovery rate of $2,230.00,and has filed a schedule calculating his costs as $70,366.00. He seeks costs in termsof the High Court scale, including for the preparation of a "substantial" Statement ofAgreed Facts by way of an additional step (step 36 of schedule 3, High Court Rules2016). He argues that the Council should contribute at least two thirds of the awardof scale costs, and that the Corporation should contribute the balance.[6] With two exceptions the Council agrees with the plaintiff's schedule in relationto the steps pertaining to the judicial review proceedings. The Council disagrees withthe costs sought by the plaintiff under steps 24 and 36. The Council also disagreeswith the claim for disbursements and costs in relation to the appeal and the applicationfor leave to appeal. It argues that costs in relation to the appeal should lie where theyfall given that the Court of Appeal declined the plaintiff's leave to appeal. It agreesthat costs should be apportioned on a two thirds:one third basis between it and theCorporation.[7] The Corporation (respondent in the appeal, and intervener in the applicationfor judicial review) disagrees that it should contribute to an award of costs. Rather, itseeks an order for costs in its favour, on similar terms to those set out in the High Court2018 costs judgment.DiscussionIs the plaintiff entitled to an award of costs for both the judicial review proceedingsand the proceedings in relation to the appeal?[8] The Council submits that costs in relation to the appeal should lie where theyfall given that the Court of Appeal declined to grant leave. The plaintiff disagrees,noting that: the appeal was dismissed for reasons unrelated to the merits; and the Courtof Appeal decision to quash the High Court costs orders was not limited to the judicialreview proceedings.[9] Giving its reasons for dismissing the plaintiff's appeal, the Court of Appealsaid:9Before us the respondents, who had submitted there was no jurisdiction togrant leave in the High Court, did not pursue that submission and focusedargument on the merits of the appeal. Therefore the jurisdiction issue (onwhich we express no view), was not argued. In the circumstances it isunnecessary for us to determine the issue of leave to appeal. If there wasjurisdiction and leave was granted, the considerations and decision wouldhave been in substance the same as in relation to judicial review. For thesereasons, not connected to the merits, we will dismiss the application for leaveto appeal.[10] The costs regime is founded on the principle that the party who fails withrespect to a proceeding should generally pay costs to the party who succeeds.10 Thereare no specific statutory guidelines on the determination of costs by the initial courtwhere the initial court's ruling has been overturned by an appellate court. However,caselaw suggests that the party who successfully appealed should be viewed as if theyhad also been successful in the lower court.11 Where a party enjoys limited success,it is still considered to be the successful party.12 However, this Court must "recognise9 At [113].10 High Court Rules 2016, s 14.2(1)(a).11 LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2015] NZHC 685 at [30].12 Weaver v Auckland Council [2017] NZCA 330 at [26].that limitation, where appropriate, by applying a reduction in costs or letting costs liewhere they fall".13[11] The costs regime also follows the general principle that an award of costsshould reflect the complexity and significance of the proceeding.14 It is predicated onthe concept of reasonable recovery, aiming to "encourage efficiency in the conduct ofa proceeding by allowing costs only on the basis of what is considered appropriate interms of skill (and thus daily rate), and in terms of time".15[12] Applying these principles, I agree with the plaintiff that it would be amischaracterisation of the Court of Appeal's decision to say that he failed with respectto the appeal. Nevertheless, the success he enjoyed was clearly limited. Further, asthe plaintiff has recognised, the appeal and review proceedings concerned the sameinterpretive issues. It would in my view amount to "double-dipping", and be contraryto the principle of reasonable recovery, for the plaintiff to be awarded costs in relationto the appeal as well as the review proceedings. I accordingly agree with therespondent that in relation to the appeal, costs should lie where they fall.Should the Corporation contribute to an award of costs to the plaintiff?[13] I agree with the plaintiff that the Corporation should contribute to the award ofscale costs.[14] In Rochdale Precinct Society Inc v Christchurch City Council the Court said:16 unsuccessful parties are prima facie jointly and severally liable. That rulemay be varied because the ultimate task of the Court is to make an assessmentof overall justice as between the particular parties, in the particularcircumstances. Relevant considerations include whether and in what mannerthe parties participated in the proceedings, the extent to which one party wasin error, and what measure of reliance was placed on the error by the otherparty.13 Rochdale Precinct Society Inc v Christchurch City Council [2018] NZHC 1708 at [7], citing WaterGuard NZ Ltd v Midgen Enterprises Ltd [2017] NZCA 36 at [13].14 High Court Rules 2016, s 14.2(1)(b).15 Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [HRPt14.02].16 Rochdale, above n 13, at [22].[15] I find that a contribution of one third of the scale costs award from theCorporation will reflect the active and material role the Corporation played in resistingthe plaintiff's appeal.Allocations for Steps 24 and 36[16] The Council seeks a discount in relation to two steps identified by the plaintiff.The plaintiff seeks: a time allocation of 1.5 days for the preparation of submissions ofcounsel in support of the interlocutory application for waiver of security for costs (step24); and 2.5 days for the preparation of a "substantial", 28-page, Statement of AgreedFacts (step 36).[17] In relation to step 24, I consider that an allocation of 1.0 days under step 22 forfiling the application is sufficient to encompass the work done for the submissionsunder step 24. The interlocutory application for waiver of security for costs consistedof a notice of application and a four-page memorandum.[18] In relation to step 36, an allocation of one day, consistent with the earlier costsorder in favour of the Council, is appropriate.Result[19] Mr Belgiorno-Nettis is entitled to costs and disbursements in respect of thejudicial review proceedings. These are to be calculated on a 2B basis at a dailyrecovery rate of $2,230.00 for the steps set out in Auckland Council's agreed tables ofcosts and disbursements. These tables reflect the adjustment to step 36 in respect ofthe judicial review proceedings, and that costs should lie where they fall in respect ofthe appeal. However, the table of costs needs to be amended to reflect the removal ofstep 24 in the judicial review proceedings and the corresponding increase in timeallocation for step 22 from 0.6 days to 1.0 day.[20] Auckland Council is to pay two thirds of the award. The Corporation is to payone third.[21] In summary, the plaintiff is entitled to $43,485.00 for costs and $3,880.00 fordisbursements (sum $47, 365.00). Auckland Council is to contribute $31,576.67, andthe Corporation is to contribute $15,788.33._____________Paul Davison JSolicitors:Daniel Overton & Goulding, AucklandBrookfields, AucklandBurton Partners, AucklandEllis Gould, Auckland