NEW ZEALAND INDEPENDENT COMMUNITY PHARMACY GROUP v TE WHATU ORA [2023] NZHC 3314

NEW ZEALAND INDEPENDENT COMMUNITY PHARMACY GROUP v TE WHATU ORA [2023] NZHC3314 [22 November 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-11[2023] NZHC 3314UNDER the Judicial Review Procedure Act 2016, theDeclaratory Judgments Act 1908 and Parts18 and 30 of the High Court Rules 2016IN THE MATTER OF an application for judicial review and anapplication for declaratory relief under theDeclaratory Judgments Act 1908BETWEEN NEW ZEALAND INDEPENDENTCOMMUNITY PHARMACY GROUPApplicantAND TE WHATU ORA – HEALTH NEWZEALAND (formerly HUTT VALLEYDISTRICT HEALTH BOARD)First RespondentContinuedOn the PapersCounsel: R Kirkness, N Coates, M D N Harris and H Yáng for theApplicantS M Bisley and J Maltby for the First and Second RespondentsJudgment: 22 November 2023COSTS JUDGMENT OF GWYN J ContinuedHAUORA TAIRĀWHITISecond RespondentTHE MINISTRY OF HEALTHThird respondentCOUNTDOWN PHARMACY (GDL RXNO8 LTD)Fourth respondentTHE PHARMACY GUILD OF NEWZEALANDIntervenerOverview[1] The first and second respondents seek costs against the applicant.[2] The applicant agrees they should be awarded scale 2B costs for the causes ofaction against each of them up until 1 July 2022. The parties have been unable toagree on the categorisation of costs incurred after that date.[3] In addition, the parties disagree about:(a) whether costs orders should be deferred pending appeal; and(b) some specific steps for which costs are sought.[4] The parties agree that the first and second respondents should recoverdisbursements totalling $2,005.22 (excluding GST).Background[5] The substantive proceeding involved a judicial review application brought bythe applicant, the New Zealand Independent Community Pharmacy Group (ICPG) ofa decision by the Ministry of Health (Ministry) to issue licences under s 55D of theMedicines Act 1981 to RX No 8 Ltd (RX8), a company associated with CountdownSupermarkets, to operate pharmacies in supermarkets.[6] The ICPG also sought judicial review of decisions by two District HealthBoards (DHBs), Hutt Valley District Health Board and Hauora Tairāwhiti, to enter intointegrated community pharmacy services agreements (ICPSAs) with RX8. The ICPGpleaded five grounds of review against the DHBs, including three grounds relating tothe DHBs' assessment of the equity effects of RX8's proposal to waive the prescriptionco-payment at the Countdown pharmacies, and breach of their obligations underte Tiriti o Waitangi/the Treaty of Waitangi.[7] Te Whatu Ora is the successor to the DHBs under the Pae Ora (HealthyFutures) Act 2022, as of 1 July 2022.1[8] In my Judgment,2 delivered on 15 June 2023, I held that the DHBs' decisionsto enter into the ICPSAs were commercial decisions and not reviewable except on thenarrow grounds of fraud, corruption and bad faith,3 none of which wasalleged. I further found that even if the decisions were reviewable, all grounds ofreview against the DHBs would fail on the merits.[9] The only successful ground of review was that pleaded against the Ministry.I held that the Ministry's decisions to grant RX8 licences to operate pharmacies wereinvalid and unlawful because in each case the pharmacist shareholders did not have"effective control" of the company as required by s 55D(2)(a) of the Medicines Act.I ordered the licences be set aside.[10] RX8 filed a notice of appeal to the Court of Appeal on 13 July 2023. RX8argues the High Court erred in the interpretation of "effective control" and thereforein finding that the licences granted by the Ministry to RX8 to operate the pharmaciesin Countdown pharmacies were unlawful and invalid. I granted a stay of enforcementpending the determination of the appeal.4[11] The ICPG filed a notice of cross-appeal in relation to the first to fourth groundsof review against the DHBs and my decision regarding admissibility of its expertevidence.5Costs sought[12] Mr Bisley, for Te Whatu Ora, seeks orders for the following:1 Pae Ora (Healthy Futures) Act 2022, s 11.2 New Zealand Independent Community Pharmacy Group v Te Whatu Ora [2023] NZHC 1486[Judgment].3 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).4 New Zealand Independent Community Pharmacy Group v Te Whatu Ora [2023] NZHC 1929.5 Judgment, above n 2, at [116]–[126].(a) Costs of $115,423. This figure is calculated on a scale 2B basis for HuttValley DHB and Hauora Tairāwhiti up until 1 July 2022 and a scale 3Cbasis for Te Whatu Ora thereafter.(b) Disbursements of $2,005.22.(c) Costs and disbursements for the costs memorandum of $1,477.48. Thiscomprises the cost of filing the costs memorandum and sealing the costsorders (if made) on a 2B basis, totalling $1,434, and the sealing fee of$43.48 (excluding GST).[13] Mr Kirkness, for the ICPG, submits that the determination of costs should bedeferred pending appeal. If the Court is to fix costs now, it disputes the quantum andbasis of costs sought by Te Whatu Ora. Counsel submits that the size of the costsorders sought has rights and constitutional implications. It says Te Whatu Ora'sarguments in support of the costs application lack restraint, proportionality andgrounding in the substantive proceeding.Timing of costs determinationTe Whatu Ora submissions[14] Te Whatu Ora makes four main arguments in support of its overall submissionthat the determination of costs should not be delayed6 when the parties have filed costsmemoranda, unless the parties agree (which here they have not) or there are unusualcircumstances, such as a narrow point of appeal.7[15] First, the successful party is entitled to enjoy the fruits of the judgment in itsfavour, having incurred the costs of the litigation in the High Court which is nowcompleted. In support, counsel refers to Taueki v Horowhenua District Council8 andStrathboss Kiwifruit Ltd v Attorney-General.96 He v Earthquake Commission [2018] NZHC 67 at [71].7 Tairua Marine Ltd v Waikato Regional Council [2006] NZRMA 485 (HC) at [14].8 Taueki v Horowhenua District Council [2017] NZHC 1742 at [6].9 Strathboss Kiwifruit Ltd v Attorney-General [2019] NZHC 62 at [5]–[9].[16] Second, r 12 of the Court of Appeal (Civil) Rules 2005 provides that an appealdoes not operate as a stay.[17] Third, it is more efficient and convenient for this Court to determine costs now,instead of waiting for the outcome of the appeal. Counsel notes the delay until thedetermination of the appeal could be 12 months, but there is no definite date.[18] While the ICPG and the Ministry have agreed to defer the determination ofcosts as between them, that is separate to Te Whatu Ora's claim.[19] Fourth, counsel submits the ICPG was created, as an incorporated society, forthe purpose of the litigation which resulted in the Judgment. The ICPG has no assetsand is reliant on funding from members. Te Whatu Ora should not have to take therisk that it would be unable to recover costs in relation to the Judgment if the ICPGbecomes insolvent and/or places itself into liquidation.ICPG submissions[20] There are unusual circumstances in this case, justifying deferral. The partiesare waiting for the determination of the appeal. The ICPG and the Ministry haveagreed that costs between them as regards the effective control issue should bedeferred until the determination of the appeal. Counsel submits it would be sensibleand efficient for the Court to deal with costs in a single decision when it has the fullcontext.[21] The ICPG submits there is no basis for Te Whatu Ora's argument that the ICPGmight place itself into liquidation. The ICPG has paid $20,000 by way of security forcosts into the Court and is willing to pay an additional $20,000 if the determination ofcosts is deferred.QuantumTe Whatu Ora submissions[22] As regards costs for steps taken before 1 July 2022, the parties agree thatTe Whatu Ora should be awarded scale 2B costs for each DHB up until 1 July 2022.Te Whatu Ora seeks 2B costs of $14,818. Counsel notes the ICPG accepts these costsexcept for the filing of memorandum of counsel dated 17 June 2022 (referred to at[44(a)] below).[23] Counsel submits scale 3C costs are appropriate for steps taken after 1 July2022, to reflect the additional complexity of the proceeding and the time reasonablyrequired for each step from that date. The factors that added this complexity and timerequired are:(a) The newly established Te Whatu Ora had to respond to claims againsttwo former DHBs. By way of context, the ICPG had four counselappear at the hearing.(b) The ICPG filed an amended statement of claim on 11 July 2022. Thisstatement of claim added a novel fifth ground of review alleging thatHauora Tairāwhiti failed to monitor the delivery of pharmaceuticalservices by RX8 and re-pleaded declarations sought in respect of onerepealed statute and one in-force statute. These amendments increasedthe issues to be addressed.(c) The ICPG filed 23 affidavits. Although only some of the ICPG'sevidence was relevant and the Court excluded the ICPG's expertevidence, Te Whatu Ora had to review and consider this evidence.(d) In written and oral submissions, the ICPG re-cast its second ground ofreview. In the pleadings, the ICPG said that the Hutt Valley DHB andHauora Tairāwhiti asked themselves the wrong question, and thecorrect question was "whether there was sufficient evidence that zeroco-payments and longer hours... would have a material effect inreducing health disparities by improving health outcomes for the[DHB's] resident population ..." At the hearing, the ICPG recast thequestion as "whether Countdown's zero co-payment approach as acommercial marketing strategy would improve access to medicines andhealth outcomes for disadvantaged population groups, includingMāori."[24] Te Whatu Ora disagrees with the ICPG's characterisation of costs sought asinvolving a punitive element. Counsel submits the ICPG brought the substantiveproceeding to advance private interests and then failed to act reasonably. Accordingly,there is no basis to reduce costs on the basis of the public interest.[25] In Diagnostic Medlab Ltd v Auckland District Health Board,10 the High Courtawarded the intervener scale 3C costs for some steps in a complex judicial reviewproceeding. Counsel submits that, similarly, there is no reason why costs incurredafter 1 July 2022 should not be awarded on a 3C basis. Scale 3C costs are appropriateafter that date because if the two former DHBs took the same steps as Te Whatu Oradid after 1 July 2022, and recovered 2B costs in respect of those, the total costs wouldbe similar to the award sought by Te Whatu Ora under 3C. Two sets of 2B costs fromafter 1 July 2022 would total $82,216.[26] Te Whatu Ora incurred costs in respect of the preparation for and attendance atthe three-day substantive hearing. The costs award should not be reduced on accountof the hearing time because some of the argument concerned the sixth ground ofreview which was against the Ministry.ICPG submissions[27] Counsel for the ICPG notes that costs on a 3C scale in a judicial review isunusual. In light of the approach that 2B scale costs are generally appropriate forjudicial review proceedings,11 there must be a very good reason before the Court willaward 3C costs. The ICPG invites the Court to distinguish Diagnostic Medlab Ltd vAuckland District Health Board because it involved 10 hearing days — three timesthe length of this substantive proceeding — and was more complex. Counsel alsonotes that both DHBs signed a joint memorandum of counsel dated 20 April 202210 Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV-2006-404-4724,13 June 2007.11 Wong v Registrar of the Auckland High Court (2008) 19 PRNZ 32 (HC) at [12].indicating a view that 2B costs were appropriate, and nothing after that date suggests3C scale costs are justified.[28] The ICPG says the substantive proceeding was not of high legal complexity,did not involve significant factual detail or a large quantity of material. Actual timespent and costs incurred are not dispositive because complexity and significance areassessed objectively. Counsel submits the claim was not complex enough tonecessitate Te Whatu Ora retaining two law firms.[29] The ICPG disputes Te Whatu Ora's entitlement to some specific steps claimed.It also says Te Whatu Ora should not be able to claim costs for preparing for the fullthree days of the hearing when it knew the claims against it would only comprise partof the three-day hearing. These specific issues are discussed at [44] and [56]-[58]below.[30] Finally, in the applicant's view, Te Whatu Ora's costs claim raises issues ofgeneral public importance. A costs award of the size sought by Te Whatu Ora (over$115,000) for a judicial review proceeding of this nature risks opening the floodgatesto similar claims by other decision-makers. This could have a chilling effect on partiesusing the mechanism of judicial review to hold public bodies accountable.12Relevant law[31] The overarching principle is that costs are at the discretion of the Court.13[32] Costs should follow the event; reflect the complexity and significance of theproceeding; and the usual starting point is scale costs.1412 Citing the New Zealand Bill of Rights Act 1990, s 27.13 High Court Rules 2016 [Rules], r 14.1.14 Rule 14.2(1).AnalysisTiming of costs determination[33] At the outset, I accept Te Whatu Ora's submission that deferring costs pendingappeal, absent the parties agreeing to this, would not be appropriate in thecircumstances of this case. There is no presumption that a costs determination shouldbe deferred until an appeal is heard.15 The parties have already incurred the time andcost of putting forward their respective submissions on costs and disbursements.While there will be some inefficiency in my determining costs now if any part of thatdetermination requires reconsideration following the appeal, I conclude thatinefficiency, if it arises, is outweighed by the benefit to Te Whatu Ora, as the successfulparty, in receiving some payment towards the costs it has incurred to date.[34] Given my conclusion that costs should be fixed and paid now, I do not need toconsider the suggested risk the ICPG will put itself into liquidation. In any event,there is no evidence before the Court on which I could have concluded there was sucha risk.[35] As counsel for the ICPG notes, it has paid security into the Court and offers topay more if the Court were minded to defer the determination of costs.Quantum[36] I agree that the case is appropriately categorised as category two, although Iobserve that the memoranda of counsel agreeing to that predated the establishment ofTe Whatu Ora.16 The substantive proceeding was a judicial review comprising sixcauses of action, against four respondents. The authors of The Law of Costs in NewZealand note that complex cases are those which are lengthy, factually intricate or thatwhich require the determination of novel points of law.17 I accept the ICPG'ssubmission that Diagnostic Medlab can be distinguished because that case was longer15 Strathboss Kiwifruit Ltd v Attorney-General [2019] NZHC 62 at [5]–[9].16 See [27] above.17 David Bullock and Tim Mullins The Law of Costs in New Zealand (looseleaf ed, LexisNexis,Wellington, 2022) at [2.8].and the issues inherently more complex and novel than the matters determined in theJudgment.[37] However I accept that there was a significant shift in the applicant's caseagainst Te Whatu Ora at trial. I also accept the disestablishment of the DHBs and theirreplacement with Te Whatu Ora during the course of the proceeding is a unique factorand is relevant to the calculation of costs. Until 1 July 2022 each DHB had separaterepresentation. There is no suggestion that that was not a proper position. While theICPG's claims against each DHB were broadly similar, there were some differences.For example, the policies against which the applicant says the ICPSAs should havebeen assessed differed as between DHBs and the alleged failure to monitor the ICPSAwas pleaded only against Hauora Tairāwhiti. The decision-making process for eachDHB was somewhat different and made in a different context. Inevitably, counsel foreach DHB would have had greater familiarity with the particular factual circumstancesof their client.[38] For those reasons, I accept that it would not be appropriate to confine Te WhatuOra to 2B costs (for two counsel) after 1 July 2022. In NR v MR18 the Court of Appealaccepted that it was appropriate to use the 3C scale as a benchmark for some steps,although the proceeding overall was correctly characterised as 2B. In New HealthNew Zealand Inc v Minister for Covid-19 Response, Cooke J said "I see some merit ina more refined approach where a percentage increase is allowed only for particularsteps rather than the whole award."19 The Court then applied Band C for certainsteps.20[39] I adopt a similar approach here and direct that 2C costs should apply for theperiod after 1 July 2022.[40] Given the specific and unusual basis on which I have concluded that additionalcosts are appropriate for the period after 1 July 2022, the risk of a chilling effect onfuture applicants bringing judicial review proceedings is low.18 NR v MR [2016] NZCA 430 at [30].19 New Health New Zealand Inc v Minister for Covid-19 Response [2023] NZHC 3132 at [8].20 At [9].[41] Nor do I consider a general reduction to the costs award on the basis of thepublic interest would be appropriate in these circumstances. I acknowledge thatr 14.7(e) of the High Court Rules 2016 (Rules) empowers the Court to depart from theusual rule that costs follow the event if the proceeding concerned is a matter of publicinterest. However, as in Wong v Registrar of the Auckland High Court:21It appears, therefore, that while there is an exception to costs in judicial reviewproceedings for cases of public interest, that exception should only apply tosomething that is truly in the public interest and not merely to the public'sbenefit, such as the correct interpretation of a piece of legislation. It shouldalso not arise out of a private interest.[42] Similarly, in Ngāti Te Awa v Minister for Treaty Negotiations, the High Courtsaid a "claim raising public law issues per se will not justify the departure. Usually itwill require clarification of an area of law of general public interest".22[43] While the questions raised by the applicant concerned public law issues, and,I expect, were of interest to the public, I do not think the claim can be accuratelycategorised as a matter of general public interest. Further, as I recorded in theJudgment, the applicant had a clear commercial interest in the proceeding.23Disputed items[44] The ICPG disputes some steps claimed by Te Whatu Ora. These are:(a) Before 1 July 2022, step 11 (by analogy):24 Filing a joint memorandumdated 17 June 2022 regarding timetabling. The ICPG says the costsregime should not permit any party to claim $956 for a two-sentencememorandum.(b) After 1 July 2022, step 22: Filing an interlocutory application dated14 September 2022 for orders excluding expert evidence. The ICPG21 Wong v Registrar of the Auckland High Court, above n 11, at [18].22 Ngāti Te Awa v Minister for Treaty of Waitangi Negotiations [2018] NZHC 915 at [2].23 Judgment, above n 2, at [185]–[188].24 Step 11 in sch 3 of the Rules is "Filing memorandum for first or subsequent case managementconference or mentions hearing".objected to the exclusion of the evidence and has now appealed theCourt's finding on this issue.(c) Step 11 (by analogy): Filing a memorandum dated 30 September 2022regarding the timing of the hearing of Te Whatu Ora's application toexclude ICPG's expert evidence. The ICPG says this step would nothave been necessary if Te Whatu Ora had not itself raised the issue ofadmissibility.(d) Step 24, preparation of written submissions. The ICPG opposesTe Whatu Ora's claim for costs for submissions in support of itsapplication to exclude expert evidence. The ICPG say Te Whatu Orafailed to obtain a separate interlocutory hearing for the application andthe issue was dealt with at the substantive hearing. No separateallowance should be made for submissions relating to the evidentialquestion.(e) Step 11 (by analogy): Filing a memorandum dated 18 November 2022regarding a Commerce Commission "warning" letter that Te WhatuOra considered might be relevant to the Court's consideration of theapplicant's third ground of review; the Pharmacy Guild's application tomake oral submissions; and correcting and updating an affidavit wherethe deponent was unavailable through illness to swear an amendedaffidavit. The ICPG says this was an ordinary memorandum of counselwhich is not provided for in sch 3 of the Rules and the ICPG should notbe required to pay for a memorandum in which Te Whatu Ora set outits views which it could have included in evidence at an earlier stage.(f) Step 11 (by analogy): Filing a memorandum dated 31 January 2023regarding the number of service agreements entered into by the first andsecond respondents pursuant to s 25 of the New Zealand Public Healthand Disability Act 2000. The ICPG says this memorandum is notanalogous to step 11 and the memorandum would not have beennecessary if Te Whatu Ora included the factual matters it addressedearlier in its evidence.(g) Step 11 (by analogy): Filing a memorandum dated 14 March 2023regarding the closure of Countdown Pharmacy Gisborne and relief.The ICPG says this memorandum was not prepared for a casemanagement conference and it not analogous to step 11.(h) Preparation time for, and appearance at, three full hearing days. TheICPG says approximately 0.75 days of the hearing were taken up withthe "effective control" issue which affected only the Ministry and RX8.Te Whatu Ora is entitled to costs for only 2.25 hearing days.[45] I set out my assessment of each of these disputed items below.[46] The steps at [44](a), (c), (e), (f) and (g) above are all sought "by analogy" withstep 11 of sch 3 of the Rules. Rule 14.5(1) provides:14.5 Determination of reasonable time(1) For the purposes of rule 14.2(1)(c), a reasonable time for a step is—(a) the time specified for it in Schedule 3; or(b) a time determined by analogy with that schedule, ifSchedule 3 does not apply; or(c) the time assessed as likely to be required for the particularstep, if no analogy can usefully be made.[47] The Rules thus recognise that in some cases steps will be taken in theproceeding that are not included in sch 3. As the authors of the The Law of Costs inNew Zealand note:25Justice Fogarty has fittingly observed: 'Schedule 3 has the noble goal of tryingto achieve certainty, but r 14.5 reveals that the ultimate goal is a just order ofcosts'.26 To that end, the Rules recognise that in some cases steps will be takenin the proceeding that are not included in Schedule 3. In those cases,r 14.5(1)(b) provides that the reasonable time for a step is 'the time determinedby analogy with that schedule.'25 Bullock and Mullins, above n 17, at [2.15].26 Langston v Mount Hutt Helicopters Ltd (No 2) [2013] NZHC 2226 at [27].[48] As that commentary also notes, there is little guidance on how the analogy ruleis to be exercised, citing Body Corporate Administration Ltd v Mehta.27 Applicationof the analogy rule necessarily involves "a heavily circumstantial judgment made bythe court in the exercise of its discretion."28 In a number of cases, costs have beenawarded in respect of memoranda, not filed for case management conferences, byanalogy.29 In Norrie (as liquidator of Pakiri Investments Ltd (in liq)) v Time3 GlobalLtd,30 costs were awarded on a costs memorandum, by analogy to preparation of amemorandum in sch 3, and a similar approach was adopted in AFI Management PtyLtd v Lepionka & Co Investments Ltd.31[49] Having regard to those authorities, I accept that a memorandum responding toa proposal for detailed timetabling directions up to trial ([44](a) above) is analogousto step 11. However, I acknowledge the ICPG's submission that $956 is excessive,given the two-sentence content of the memorandum. I consider that scale 1A, being$318, is an appropriate recovery rate in respect of this memorandum.[50] The steps at [44](b) and (c) above concern the respondents' application forexcluding expert evidence from the ICPG. The ICPG resists costs for the applicationitself and for the first and second respondents' memorandum as to timing for hearingof the application. The application was dated 14 September 2022. The respondentssought a one hour hearing, prior to the substantive trial. Subsequent memoranda fromthe third and fourth respondents and the intervener indicated a preference for theapplication to be determined at trial. The first and second respondents filed amemorandum on 30 September 2022 agreeing, on the basis that it did not want tojeopardise the hearing date, and proposing that submissions on admissibility form partof the substantive submissions for hearing. By memorandum of 3 October 2022 theICPG requested that the application be dealt with at the substantive hearing and byminute of 4 October 2022 I directed that the application be dealt with at the substantivehearing and submissions be included in the substantive submissions. I ultimately27 Body Corporate Administration Ltd v Mehta [2015] NZHC 316 at [37].28 Bullock and Mullins, above n 17, at [2.15].29 See for example Greenpeace of New Zealand Inc v Minister of Energy and Resources [2013]NZHC 1110 at [8]; and Xiao v Sun [2018] NZHC 1334 at [16]–[17].30 Norrie (as liquidator of Pakiri Investments Ltd (in liq)) v Time3 Global Ltd [2016] NZHC 2712 at[24].31 AFI Management Pty Ltd v Lepionka & Co Investments Ltd [2018] NZHC 892.determined the question of admissibility in Te Whatu Ora's favour. Although thataspect of the judgment is subject to appeal, there is no reason why costs for theapplication should not be recoverable. Similarly, there is no reason why Te WhatuOra should not recover costs for its memorandum of 30 September 2022. It isanalogous to a memorandum filed under step 11.[51] The step at [44](d) above concerns Te Whatu Ora's claim for costs forpreparation of submissions supporting its application to exclude the ICPG's expertevidence. As noted above, by agreement that application was heard during the courseof the substantive hearing, rather than by way of a separate, pre-trial hearing. WhileTe Whatu Ora's submissions covered some nine pages, I agree with the ICPG that itis incorporated in preparation time for the substantive submissions as a whole and nofurther costs allowance is appropriate.[52] I consider the step referred to at [44](e) above is not analogous to step 11 inrelation to the preparation of the memorandum dated 18 November. The "warning"letter by the Commerce Commission that the memorandum brings to the Court'sattention is dated 13 February 2014. Te Whatu Ora could have addressed theinformation in that memorandum in its evidence filed earlier in the proceeding. Costsare therefore not recoverable in respect of this memorandum.[53] As to [44](f) above, while Te Whatu Ora's memorandum of 31 January 2023responded to a specific indication from the Court that it would be useful to have thenumber of service agreements entered into by the first and second respondentspursuant to s 25 of the New Zealand Public Health and Disability Act, I agree that thememorandum providing that information is not "analogous" to step 11 in sch 3 andcould have been addressed by Te Whatu Ora earlier, in its evidence. No costsallowance is appropriate.[54] As to step [44](g) above, Te Whatu Ora's memorandum of 14 March 2023updated the Court on the position of the Countdown Pharmacy in Gisborne and theconsequent suspension of the ICPSA between Te Whatu Ora and RX8 in relation tothat pharmacy. The memorandum provided relevant information for the Court and, asTe Whatu Ora indicated in its memorandum, potentially impacted on the relief soughtby the applicant. I accept that the memorandum was analogous to step 11 in sch 3 andcosts are recoverable in respect of it.[55] Finally, in relation to step [44](h) above, the ICPG says Te Whatu Ora shouldbe entitled to costs for only 2.25 hearing days.[56] By agreement, submissions at the hearing were presented in the followingorder:(a) ICPG(b) Pharmacy Guild of New Zealand(c) Ministry(d) Te Whatu Ora(e) RX8(f) ICPG (in reply).[57] The submissions were wide ranging. For example, the submissions for RX8did address issues relevant to the first and second respondents in addition to the claimsdirectly affecting RX8 (for example, the reviewability of commercial decisions).[58] I conclude that, having regard to the sequence and breadth of the submissions,the attention and understanding of counsel for Te Whatu Ora was required for thewhole trial.32 Costs are therefore recoverable in relation to the full three day hearing.[59] Finally, Te Whatu Ora also seeks costs for its costs memorandum. AsAssociate Judge Christiansen observed in Norrie there is no specific step in sch 3 ofthe Rules providing for the recovery of costs for filing costs memoranda.3332 Diagnostic Medlab, above n 10, at [32].33 Norrie (as liquidator of Pakiri Investments Ltd (in liq)) v Time3 Global Ltd, above n 30, at [24].However, this step can be recoverable by analogy under r 14.5 of the Rules.34 Courtsgenerally allow 0.4 days for filing costs memoranda.35 In these circumstances, Iconsider 0.4 days ($956 plus disbursements) is appropriate. The disbursementsassociated with the costs memorandum are already included in the parties' agreeddisbursements quantum.Result[60] I direct that costs be fixed and paid now, rather than deferred until thedetermination of the appeal.[61] I direct that the ICPG is to pay costs to Te Whatu Ora calculated in accordancewith this judgment in the amount of $71,301, together with disbursements of$2,005.22 (excluding GST).Gwyn J34 At [24].35 At [35], citing Tukuafu v Glenfield Investments Ltd HC Auckland CIV-2010-404-6628,29 November 2010 at [37]; Official Assignee v Black Bag Ltd [2015] NZHC 1642; and AucklandRegional Council v Arrigato Investments (2002) 16 PRNZ 217 (HC) at [21].