LOU HUNAARA TANGAERE V THE WAITANGI TRIBUNAL AND ANOR HC WN CIV 2008-485-1177

LOU HUNAARA TANGAERE V THE WAITANGI TRIBUNAL AND ANOR HC WN CIV 2008-485-1177 14 May 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2008-485-1177UNDER the Judicature Amendment Act 1972 and Parts IV and VII of the High Court Rules IN THE MATTER OF Section 4A of the Commissions of Inquiry Act 1908 BETWEEN LOU HUNAARA TANGAERE Applicant AND THE WAITANGI TRIBUNAL First Respondent AND THE ATTORNEY-GENERAL Second Respondent Counsel: C B Hirschfeld for Applicant A K Irwin and M Cooke for Second Respondent First Respondent abides Judgment: 14 May 2009JUDGMENT OF SIMON FRANCE J (Costs Ruling)[1] Mr Tangaere unsuccessfully challenged the process followed by the Waitangi Tribunal when it ruled on his application that his claim be given urgency. The Tribunal had organised a phone conference for all affected parties, and called for written submissions, which were filed. A reasoned decision was issued. Mr Tangaere unsuccessfully argued before me that he was entitled to a hearing in person. [2] The Crown seeks costs of $10,370, being the application of 2B scale costs. Mr Tangaere seeks either a nil award, or reduced costs. No challenge is made to the calculation which produced the claimed sum.[3] The normal rule is costs follow the outcome. The bases advanced for an exception in Mr Tangaere's favour are: a) there was no element of personal gain involved; b) the procedure of the Waitangi Tribunal is a matter of general importance; c) Mr Tangaere's underlying claim involves a taonga, namely the foreshore and seabed of Ruawaipu (between the mouths of the Awatere and Maraehara Rivers). [4] Mr Tangaere is a senior kaumatua who first filed his Waitangi Tribunal claim in 1987. He acts on behalf of his hapu, and is not motivated by personal gain. [5] Public interest is said to lie in the various enactments considered in order to determine the correct procedure of the Tribunal – the Treaty of Waitangi Act 1975, the Commission of Inquiry Act 1908 and Amendment Act 1980, and the Tribunal's own Guide to Procedure. [6] Other points noted on behalf of Mr Tangaere are that the Attorney-General was not initially a party but was directed to be joined, and there is no appeal process by which to dispute matters of procedure. Finally an "interests of justice" submission is made based on Mr Tangaere's personal circumstances. He is a pensioner, recently widowed, aged seventy-seven years who was declined legal aid. The proceedings were conducted in an efficient manner, and counsel for Mr Tangaere took the case pro bono.Decision[7] I record first that I do not see Mr Tangaere's personal circumstances as impacting on the decision I make. The focus of the costs award must be on the litigation issues, and it is over to the Crown to decide whether it will seek to enforce any award it obtains.[8] Sometimes procedural issues can be of general importance, but with respect not here. The parties before the Tribunal were all given ample opportunity to advance their case. I understand Mr Tangaere's preference for an oral opportunity, but the Tribunal is much better placed than me to understand the importance of that in a particular case. From a general viewpoint, given the nature of the claims process, and the number of people involved, it would be very unlikely that the Tribunal was obligated to give an in personam hearing on an interlocutory issue concerning a change to the order in which claims would be heard. [9] There was no real basis, in my view, to suggest that what happened was not fair, or that it failed to give an adequate opportunity to advance submissions in support. The argument, therefore, was really a claim for one type of hearing over another. That claim was based on what I considered to be a misinterpretation of the Commissions of Inquiry Act 1908, and the relevant amendment. [10] This is nothing in the point that the Attorney-General was joined as a party. He is a party, carried the whole burden of the defence, and is entitled under the rules to recover costs. [11] It is difficult to see that the case really engages the public interest considerations that sometimes lead to a reduction in costs. It is important to recall the nature of the issue – a preliminary procedural matter that is not determinative of the claim. [12] Mr Hirshfeld relied on two cases – NZ Maori Council v Attorney-General[1994] 1 NZLR 513 (DC) and Nga Iwi Katoa v District Land Registrar, Nth. Auck. Registry & Ors [1992] M 2067/92; Smellie J. In those cases favourable costs treatment was given to unsuccessful parties, but in circumstances very different from the present. The former case involved matters of wide import, and achieved clarity in an important area of New Zealand law. The latter was very fact specific, and involved Crown delay. [13] The cited New Zealand Bill of Rights Act 1990 authorities concerning costs in Bill of Rights cases are inapplicable.[14] Concerned as I am for Mr Tangaere's position, I nevertheless see no basis in principle to depart from the basic rule. I accordingly award the second respondent its costs of $10,370. It is for the second respondent to decide whether it will seek to enforce the award. ___________________________ Simon France JSolicitors: C B Hirshfeld, Barrister, Auckland, email: charl@jamaicachambers.co.nz A Irwin, Crown Law, PO Box 2858, Wellington, email: andrew.irwin@crownlaw.govt.nz