MAN O WAR STATION LTD v AUCKLAND COUNCIL [2015] NZHC 1409

MAN O WAR STATION LTD v AUCKLAND COUNCIL [2015] NZHC 1409 [22 June 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-002064[2015] NZHC 1409UNDER the Resource Management Act 1991IN THE MATTER of an appeal against a decision of theEnvironment Court under section 299 ofthe Resource Management Act 1991BETWEEN MAN O WAR STATION LIMITEDAppellantAND AUCKLAND COUNCILRespondentENVIRONMENTAL DEFENCESOCIETY INCORPORATEDFEDERATED FARMERS OF NEWZEALANDSection 301 PartiesOn the papersJudgment: 22 June 2015COSTS JUDGMENT OF ANDREWS JThis judgment is delivered by me on 22 June 2015 at 4 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarIntroduction[1] In my judgment delivered on 21 April 2015, I dismissed an appeal by Man O'War Station Limited ("MWS") from a decision of the Environment Court relating to mapping of outstanding natural landscapes (ONLs) on Waiheke Island and on Ponui Island.1 The parties to this proceeding have now filed submissions as to costs.[2] Auckland Council ("the Council") seeks an order for costs against MWS inthe sum of $23,283. The Environmental Defence Society Inc ("EDS") (whichappeared as a party to the appeal pursuant to ss 301 and 302 of the ResourceManagement Act 1991 ("the Act") seeks an order for costs against MWS in the sum of $16,119. MWS opposes both applications.[3] Federated Farmers of New Zealand (also a s 301 party) abides the decision of the Court, and did not file submissions. No costs are sought against it.Application by the Council[4] For the Council, Mr O'Callahan submitted that the complexity and significance of the issues justified an award of 2C costs for some steps (commencing response to the appeal (Item 53) and preparing written submissions (Item 56)) while costs for other steps should be awarded on a 2B basis.[5] Mr O'Callahan submitted that this Court had been required to consider, for the first time, the question as to the scale against which the "outstanding" quality ofa natural landscape should be judged, and to consider whether the judgment of the Supreme Court in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, ("King Salmon")2 would affect the Environment Court's body ofcase law as to the identification of ONLs. He submitted that MWS was, on bothpoints, putting forward "novel propositions" which, if accepted, would haveprofound consequences. He submitted that those consequences warranted thorough research and careful analysis and thus justified 2C costs.1 Man O War Station Ltd v Auckland Council [2015] NZHC 767.2 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593.[6] Mr O'Callahan also submitted that the Court should certify for second counsel, given the potential importance of the issues raised by MWS.[7] For MWS, Mr Williams submitted that the issues raised were no more complex or significant than those raised in the normal course of appeals from the Environment Court to the High Court, and that costs are normally awarded on a 2B basis in RMA appeals; including in cases of equivalent complexity. He said that, if anything, costs in this appeal could properly be considered on a 2A basis.[8] Mr Williams also submitted that the claim for preparation of submissions (six days) was excessive, that the claims for costs on interlocutory steps were overstated, and that there was no justification to certify for second counsel.[9] The Council succeeded, so is entitled to an order for costs in its favour.3[10] I am satisfied that it is appropriate to award costs for preparation ofsubmissions on a 2C basis. I accept Mr O'Callahan's submission that the issuesraised by MWS required careful consideration, and were both complex and of significance to the parties themselves, and in the more general context of the operation of the RMA.[11] I accept Mr Williams' submissions that band 2C is not appropriate for item53, and that there should be no award for items 18 and 23. That is, I accept that there is some duplication in the Council's claims in respect of the case managementhearing. In this respect, I note that EDS claims for items 10 and 13, but not for item 11. I have concluded that it is appropriate to allow costs for preparation for the conference, and appearance at the conference (items 10 and 13), but not for item 11.[12] I also accept Mr Williams' submission that as no notice of opposition was filed to MWS's application to adduce evidence on appeal, there should be no orderunder item 23.3 See r 14.2(a) of the High Court Rules.[13] I do not accept Mr Williams' submission that I should not certify for secondcounsel at the hearing. This proceeding was of considerable importance to the parties, and I am satisfied that it was reasonable for the Council to be represented to by two counsel (as was MWS).[14] Accordingly, I order as follows:(a) The Council is entitled to an award of costs on a 2B basis in respect of items 1, 10, 13, 57, and 58.(b) The Council is entitled to an award of costs on a 2C basis in respect of item 56.(c) I certify for second counsel at the hearing.(I note that there appears to be a calculation error in the Council's schedule of costs.)Claim by EDS[15] Mr Enright sought costs on a 2B basis for the case management conference (items 10 and 13), preparing written submissions (item 56) and appearance at the hearing (item 57). He also sought certification for second counsel (item 58).[16] Mr Enright referred me to the costs judgment in King Salmon, in which costs were awarded to EDS (a s 301 party) which had succeeded on appeal.4 He also referred me to the judgment of Brown J in Trans Tasman Resources Ltd v Environmental Protection Authority, in which interveners in an appeal were awarded scale costs.5 Mr Enright submitted that EDS is a not-for-profit, non-government organisation, and its reason for participating in the appeal was to ensure that the public interest in protecting the environment was represented. He submitted that the protection of ONLs is a matter of national importance under s 6 of the RMA and thatanalysis of the issues raised in MWS's appeal was significant and complex.4 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 167.5 Trans Tasman Resources Ltd v Environmental Protection Authority [2015] NZHC 867.He noted that EDS was the only party in this appeal involved in the King Salmonproceedings.[17] For MWS, Mr Casey QC submitted that no order should be made in favour of EDS, as it had no particular or direct interest in the outcome of the appeal. He also submitted that an order should not be made because to do so would infringe r 14.15, by making a second award of costs in the proceeding. He submitted that looking atthe proceeding in a "realistic" way, the Council and EDS had common or overlapping interests with no separate impact, conflict, or reputation at stake. He submitted that if this Court were minded to award costs in favour of EDS, it should not do so in favour of the Council, or it should at least reduce the amount awarded, in proportion.[18] Mr Casey further submitted that an order should not be made in favour of EDS, for the reason that senior counsel for EDS was engaged under a conditional fee arrangement. He submitted that this meant that EDS would have no liability to senior counsel for costs unless an award was made in its favour. He submitted that awards of costs are made for the purpose of reimbursing a party for costs incurred and that, as no actual costs has been incurred in respect of senior counsel for EDS, there were no costs to reimburse and there should not, therefore, be an order.[19] Finally, Mr Casey submitted that certification for second counsel was not justified.[20] In King Salmon, the Supreme Court made an award in favour of EDS, notwithstanding that it was a "public interest" party with, in effect, "intervener"status. Further, the fact that counsel for EDS in that case had (as in this case) a contingency fee arrangement did not preclude an award being made. I take into account the fact that EDS was the appellant in King Salmon, but not in the present case. Notwithstanding that difference, I accept that a separate award of costs may be made in favour of EDS in the present case.[21] I accept that EDS had a proper role in the hearing of MWS' appeal to thisCourt. While there was commonality of some issues as between the Council andEDS, it was not such as to preclude there being a separate award of costs. It may be said that the Council focussed on the Plan, while the EDS focussed on the environment. However, the Council carried the principal burden of the argument against the appeal, and it is appropriate to make an allowance for that factor.[22] I have concluded that EDS is entitled to an award of costs in its favour at 60 percent of the award made in favour of the Council with the exception that, for EDS, I do not certify for second counsel. I consider that this reduction adequately reflects the degree of replication in the submissions of EDS and the Council.__________________________Andrews J