NGAI TAI KI TAMAKI TRIBAL TRUST v MINISTER OF CONSERVATION [2017] NZHC 872

NGAI TAI KI TAMAKI TRIBAL TRUST v MINISTER OF CONSERVATION [2017] NZHC 872 [4 May 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-943[2017] NZHC 872IN THE MATTER of an application for judicial review underthe Judicature Amendment Act 1972BETWEEN NGAI TAI KI TAMAKI TRIBAL TRUSTApplicantAND MINISTER OF CONSERVATIONFirst RespondentFULLERS GROUP LIMITEDSecond RespondentMOTUTAPU ISLAND RESTORATIONTRUSTThird RespondentNGATI PAOA IWI TRUSTIntervenerHearing: On the PapersAppearances: P J Andrew and R A Siciliano for ApplicantC D Tyson and E P Chapple for First RespondentA C Pilditch for Second RespondentS J McK Mount and A R Longdill for Third RespondentR B Enright for IntervenerJudgment: 4 May 2017COSTS JUDGMENT OF FOGARTY JThis judgment was delivered by Justice Fogarty on4 May 2017 at 4.00 p.m., pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] This case was judicial review of two decisions by the Minister of Conservation (by delegates), granting concessions on Rangitoto and Motutapu Islands in favour of Fullers, the ferry company and Motutapu Island Restoration Trust.[2] The question was whether or not the decision makers erred in law when discharging the obligation to give effect to the principles of the Treaty of Waitangi as required by s 4 of the Conservation Act.[3] I found that the Department of Conservation (DoC) over-stated the law when saying there is no basis for preferential entitlement and that economic benefits were not a relevant consideration. I found, as a matter of fact that the DoC decisions did give effect to the principles of the Treaty of Waitangi. I reserved the question of costs.[4] I have now received submissions on costs, all of which are succinct, yet well researched and thought through. The first respondent, the Minister of Conservation, does not seek costs. Fullers Group Ltd, the second respondent, do seek costs on the basis that costs should follow the event and they seek the sum of $28,767 calculated under Schedule 3 of the High Court Rules. Motutapu Island Restoration Trust seek costs similarly calculated in the sum of $29,659. The intervener, Ngati Paoa, does not seek to be heard in relation to costs issues.[5] This was responsible litigation brought by the applicant. It was partially successful. Both Fullers and the Motutapu Island Restoration Trust had good reasons for responding, and Ngati Paoa for intervening.[6] Fullers and the Motutapu Island Restoration Trust contend that this case was brought by the applicant to pursue its own economic opportunities. It was, but in my opinion this was nonetheless public interest litigation. In the case of the Motutapu Island Restoration Trust I have considered whether or not it would be a burden not to recover costs. I note the intent is to spend any recovery on the Motutapu Islandrestoration. That suggests that the Trust's finances have not been seriously burdenedby this litigation. I also consider the outcome of the judgment is of benefit to both Fullers and Motutapu Island Restoration Trust.[7] Overall I think the dominating reason is that all the parties to this litigation, including the intervener, obtained benefits from the High Court judgment, on a matter of public interest, giving at the least some clarity to their long-term interests, which is beneficial to each of them as a result of the litigation, at a relatively low cost. For these reasons I think that each party to the litigation should bear their own costs.[8] There will be no order for costs.Solicitors:McCaw Lewis, HamiltonCrown Law, WellingtonSkinner Law Limited, WellingtonCook Morris Quinn, Auckland