NEW ZEALAND GREYHOUND RACING ASSOCIATION (INCORPORATED) v THE MINISTER FOR RACING HC WN CIV-2012-485-2070

NEW ZEALAND GREYHOUND RACING ASSOCIATION (INCORPORATED) v THE MINISTER FOR RACING HC WN CIV-2012-485-2070 [19 April 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-485-2070[2013] NZHC 827UNDER the Judicature Amendment Act 1972 Part 1IN THE MATTER OF the Racing Act 2003BETWEEN NEW ZEALAND GREYHOUNDRACING ASSOCIATION(INCORPORATED)PlaintiffAND THE MINISTER FOR RACINGDefendantHearing: On the papersCounsel: H Cull QC and N Levy for the PlaintiffK Stephen and A Jacobs for the DefendantJudgment: 19 April 2013JUDGMENT OF MALLON J (Costs)[1] I refer to my judgment delivered on 19 February 2013.1 I have now received submissions on costs. The defendant complied with my direction that the submissions be confined to three pages.2 The plaintiff, without explanation, did not. It is to be remembered that the costs regime is intended to be predictable and expeditious.3 In the ordinary course brief submissions on costs confined to the essential points are appropriate under that regime.1 New Zealand Greyhound Racing Association (Inc) v Minister for Racing [2013] NZHC 245.2 At [76].3 High Court Rules, r 14.2(g).[2] The essential point is that the parties have not been able to agree on costs because the defendant takes the view that category 2B costs are appropriate4 whereas the plaintiff considers indemnity or increased costs should be ordered.5[3] Although this case involved an issue of relevance to parties (the thoroughbred code and the harness code) other than those represented in the proceeding, that does not warrant either indemnity or increased costs in my view.6 The greyhound code brought the proceeding because it had an interest in removing the chairperson because of his links with the thoroughbred code. That makes the case more similar to Whangamata Marina Society Inc v Attorney-General7 than New Zealand Maori Council v Attorney-General (No 3)8 and Auckland Council for Civil Liberties v Attorney-General.9 The significance of the proceeding to the greyhound code, together with its wider significance for future appointments, is better reflected by the category to which the proceeding is appropriately assigned.[4] Nor do I consider that indemnity or increased costs should be ordered because the defendant could have avoided the proceeding by accepting the plaintiff'sview and legal advice that the appointed chairperson was not independent.10 The defendant obtained advice before making the appointment. He was not required toaccept the plaintiff's advice when he had advice that differed and when he was of the view, after an appropriate process searching for candidates, that his proposed appointment was the best one and complied with the statutory criteria as he was advised it to be.4 Rule 14.3.5 Rule 14.6.6 The Court may order a party to pay increased costs if the proceeding is of general importance topersons other than just the parties and it was reasonably necessary for the party claiming costs tobring it in their interests: High Court Rules, r 14.6(3)(c). The court may order indemnity costs ifsome other reason exists which justifies it: r 14.6(4)(f).7 Whangamata Marina Society Inc v Attorney-General (2006) 18 PRNZ 565 (HC) at [16].8 New Zealand Maori Council v Attorney-General (No 3) HC Wellington CP942/88, 28 April1995.9 Auckland Council for Civil Liberties v Attorney-General HC Auckland CP452/95, 10 November1993.10 The court may order a party to pay increased costs if the party opposing costs has contributedunnecessarily to the time or expense of the proceeding by pursuing an argument that lacks meritor failing to accept a legal argument: High Court Rules, r 14.6(3)(b).[5] I consider that category 3 is appropriate because I accept that the significance of the proceeding to the greyhound code was such that it was appropriatelyrepresented both by a Queen's Counsel and an experienced second counsel. Band Bis appropriate because the steps involved in the proceeding were such that a normal amount of time for those steps would be reasonable. There is to be an allowance for second counsel.[6] Accordingly, category 3B costs are awarded.Mallon JSolicitors:Kathy Ertel & Co, WellingtonCrown Law, Wellington