ENVIRONS HOLDINGS LIMITED V THE ENVIRONMENT COURT AT AUCKLAND HC AK CIV 2009-404-3310

ENVIRONS HOLDINGS LIMITED V THE ENVIRONMENT COURT AT AUCKLAND HC AK CIV 2009- 404-3310 16 July 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-3310UNDER the Judicature Amendment Act 1972 IN THE MATTER OF the Resource Management Act 1991 BETWEEN ENVIRONS HOLDINGS LIMITED Plaintiff AND THE ENVIRONMENT COURT AT AUCKLAND Defendant Hearing: 16 July 2009 Counsel: J Mason and P Agius for Plaintiff No appearance by or on behalf of Defendant S Simons for Crest Energy Kaipara Ltd R M Bell for Northland Regional Council No appearance by or on behalf of Attorney-General Judgment: 16 July 2009(ORAL) JUDGMENT (NO. 2) OF HEATH JSolicitors: Pacific Law Ltd, PO Box 27400, Wellington Ellis Gould, PO Box 1509, Auckland Webb Ross, Private Bag 9012, Whangarei Crown Law, PO Box 2858, Wellington Meredith Connell, PO Box 2213, Auckland[1] On 4 June 2009, I heard an urgent application for interim relief brought in judicial review proceedings. Environs Holdings Ltd sought to review a decision of the Environment Court refusing an adjournment of an appeal that was scheduled to begin on 8 June 2009, with an estimated duration of two weeks. The appeal was against the grant of resource consents and recommendations in respect of restricted coastal activities. [2] The application for interim relief was refused, for reasons set out in a judgment given orally on the evening of 4 June 2009. The substantive proceeding was adjourned for a case management conference even though it was clear that the purpose of the proceeding was spent. While reserving costs on the interlocutory application, I gave a provisional view, in these terms:[42] Leave to apply is reserved, if any party wishes to seek costs. Any application of that type shall be referred to me when filed and I will convene a telephone conference to make appropriate timetabling directions. However, I hope that the following observations will assist the parties to reach an agreed resolution. [44] On questions of costs, both Crest Energy and the Northland Regional Council have been put to considerable cost in meeting a late application to delay the hearing of the appeals for a significant period of time. As the application has failed it seems to me that there is no principled reason why costs should not be ordered in favour of both of those parties. [45] My present inclination would be to order costs on a 2B basis, together with reasonable disbursements, with an uplift of 25% to recognise the urgency involved. Any disbursements would include reasonable travel and any accommodation expenses of counsel. [3] Two of the parties who appeared in opposition to the application, Crest Energy Kaipara Ltd and Northland Regional Council seek costs on the basis that I indicated in para [45] of my earlier judgment. The Attorney-General, for whom Mr Irwin appeared to assist the Court on issues relating to the Foreshore and Seabed Act 2004, and the Environment Court did not seek costs. Counsel for those parties were excused attendance at today's hearing.[4] Environs opposes any order for costs, relying primarily on the public interest nature of the application. [5] The background to the application was set out in my judgment of 4 June 2009, as follows:[5] Environs Holdings Ltd is an operating company controlled by the trustees of the Te Uri o Hau Settlement Trust. The Trust was settled to promote the general welfare of people living within the Te Uri o Hau rohe, who represent a Northland hapu of Ngati Whatua. [6] The Trust has issued proceedings in this Court seeking a "finding" of territorial customary rights under s 33 of the Foreshore and Seabed Act. That proceeding is being managed by the Chief High Court Judge. The scope of the proceeding was outlined in a Minute issued by Randerson J, on 21 May 2009: [2] The applicant confirms that it wishes to proceed with its application for territorial customary rights on a staged basis. It intends to proceed first with the portion of the application limited to the area along the West coast of the rohe of the hapu, including the area subject to the Crest Energy Kaipara Ltd proceedings, being the area of foreshore and seabed from Karaka Point generally along the coastline following the northern reaches of the Kaipara Harbour. The applicant accepts that the Foreshore and Seabed Act 2004 limits the area of the application to the outer edge of the territorial sea but continues to assert that it has customary rights extending to the outer limit of the 200 nautical mile Exclusive Economic Zone. [3] The applicant intends to proceed with the remainder of the claim (relating to the East coast area) at a later stage. [7] The Crest Energy proceedings, to which Randerson J refers, are those brought in the Environment Court to which the present application relates. [8] Crest Energy sought a resource consent and recommendations in relation to restricted coastal activities to install and operate electricity generating turbines in the Kaipara Harbour. That application was granted, following a hearing before a Hearings Committee established by the Northland Regional Council, the relevant consent authority. [9] A number of parties, including Environs, have appealed against that decision. Indeed, Crest Energy has also appealed against certain conditions imposed. The appeals have been set down for hearing over the next two weeks. Environs is concerned that the resource consent grants and the recommendations may prejudice the Trust's application for recognition of territorial customary rights. The consent relates to an area in the Kaipara Harbour, to which the High Court claim in part relates.[6] Ms Mason, for Environs, submits that costs should not be ordered in favour of Northland Regional Council because:a) Northland Regional Council did not need to become involved in the judicial review proceedings; b) Northland Regional Council would not have been materially prejudiced by the outcome of a stay/adjournment; c) the more appropriate position would have been for Northland Regional Council to remain neutral and to abide the Court's decision on the judicial review application; d) the public interest nature of the proceedings; e) Environs acted reasonably during the proceedings; and f) Environs ought not to be inhibited by the fear that they might suffer in costs if their sincere view as to the interests of the people they represent prove not to be vindicated. [7] The costs sought by Crest Energy are opposed on the grounds that: a) the public interest nature of the proceedings; b) Environs acted reasonably during the proceedings; and c) Environs ought not to be inhibited by the fear that they might suffer in costs if their sincere view as to the interests of the people they represent prove not to be vindicated. [8] Ms Mason calls in aid the Court's general discretion as to costs (r 14.1 of the High Court Rules) and the public interest nature of the application which, she submits, justifies no order as to costs (r 14.7(e)). She refers to authorities in which applications for costs have been refused on public interest grounds, including Re Society for the Protection of Community Standards Inc [2007] NZAR 897 and Lewis v Whangarei District Council (1991) 1 NZRMA 114.[9] Both Ms Simons, for Crest Energy, and Mr Bell, for Northland Regional Council, submitted that Environs chose to apply urgently for orders and that was done primarily to advance private interests of those who are beneficiaries of the Te Uri o Hau Settlement Trust. [10] It is trite that the costs' rules must be interpreted having regard to their primary purpose, namely, to promote predictability of outcome in relation to costs: see Glaister v Amalgamated Dairies Ltd (2003) PRNZ 536 (CA) at para [27]. In those circumstances, there needs to be a clear reason to justify departure from the prescribed approach, including the general rule that costs follow the event (r 14.02(a)). [11] In Commerce Commission v Southern Cross Medical Care Society [2004] 1 NZLR 491 (CA), the Court of Appeal considered whether the Commission should be required to pay costs on a successful appeal against its decision that it had sought actively to maintain. In reversing the High Court order for costs, Fisher J, delivering the judgment of the Court of Appeal, said:[21] As a general principle we think that the Commerce Commission ought not to be exposed to an adverse costs order for unsuccessfully opposing an appeal against one of its own determinations under Part V of the Commerce Act 1986 if all the commission has done is to assist the High Court by presenting necessary evidence and argument in opposition to the appeal in the public interest. Although we think that that is the right starting point, it is important not to overlook the inherently broad nature of a Court's discretion over costs. Some flexibility must therefore be preserved to meet the requirements of each individual case. And we do not think that the starting point we have mentioned has any application to further appeals by the commission to the Court of Appeal. (my emphasis)[12] This proceeding does not fall into the same category as Southern Cross. The application to the Environment Court for an adjournment was refused on 21 April 2009. Yet, notwithstanding the proposed commencement of the hearing on 8 June 2009, a judicial review of that decision was not sought until 3 June 2009. That application had to be dealt with urgently. [13] Counsel for the parties who opposed the application were not only required to prepare urgently but were also distracted from preparation for the substantive appeal, set down for hearing the following week.[14] As Mr Bell pointed out at the hearing before me in June, there were 13 parties to the appeal including four appellants. Some 31 expert witnesses were scheduled to give evidence on topics as diverse as engineering, coastal processes, effects on marine life, cultural and planning principles. The upheaval caused by this application was significant. [15] The application was unsuccessful and it seems to me, in those circumstances that there can be no basis to refuse an order of costs. Ultimately, the application was brought to benefit the private interests of those whom the appellant represented in an endeavour to stall the appeal process to allow the Foreshore and Seabed Act application to keep pace with it. This was not public interest litigation. [16] Having reflected on the submissions, I am not prepared to deviate from my original view as to quantum. It seems to me that the need to respond urgently to the present application justified an increased costs order. [17] I make an order that Environs pay costs of both Crest Energy and Northland Regional Council on a 2B basis, with an uplift of 25%, together with reasonable disbursements. The uplift is justified by the dual considerations of the urgency of the appeal and distraction from preparation for the substantive appeal. Both costs and disbursements shall be fixed by the Registrar. As indicated in my original judgment, disbursements are to include any reasonable travel expenses by counsel. [18] While counsel have supplied calculations to me, I prefer that the actual quantum be confirmed by the Registrar. The Registrar is directed to fix costs and disbursements on the basis of the memoranda that have been filed by Ms Simons and Mr Bell for today's hearing. [19] Ms Simons' sought certification for second counsel. While urgency was required, I do not think it is appropriate to require Environs to pay costs for second counsel, particularly in light of the increased costs order I have made. I therefore decline to certify for second counsel.[20] As all parties agree there is no utility in the substantive proceeding remaining on foot, it is dismissed. __________________________ P R Heath J