PETROMONT FISHING COMPANY LIMITED v THE MINISTRY OF PRIMARY INDUSTRIES [2018] NZHC 3147

PETROMONT FISHING COMPANY LIMITED v THE MINISTRY OF PRIMARY INDUSTRIES [2018]NZHC 3147 [30 November 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2016-404-3064[2018] NZHC 3147IN THE MATTER OF an application for judicial reviewUNDER Judicial Review Procedure Act 2016BETWEEN PETROMONT FISHING COMPANYLIMITEDApplicantAND THE MINISTRY OF PRIMARYINDUSTRIESRespondentHearing: On the papersCounsel D W Grove for ApplicantN C Anderson and E J Couper for RespondentJudgment: 30 November 2018JUDGMENT OF CLARK J(COSTS)Introduction[1] In a judgment delivered on 16 April 2018, I dismissed the applicant'sapplication for judicial review.1[2] In relation to costs I observed:[114] The respondent is entitled to costs. If the parties are unable to agreecosts they may file written submissions not exceeding six pages. I make thisfinal observation bearing on costs. Although the applicant has not succeeded1 Petromont Fishing Co Ltd v Ministry of Primary Industries [2018] NZHC 676, [2018] NZAR 740;affirmed on appeal: Petromont Fishing Co Ltd v Ministry of Primary Industries [2018] NZCA422.in any of its grounds of review that part of the respondent's case which reliedon s 329 as the source of the power to conduct an internal review was foundto be flawed.[3] The respondent has applied for costs and I have now received submissionsfrom both parties.Parties' positions[4] The respondent's position is that it is entitled to costs on a 2B basis but reducedby one third to reflect the erroneous position it took with regard to the legal issueconcerning the source of power under which an internal review of permitting decisionscould be conducted. The respondent seeks costs and disbursements of $18,196.64.[5] The applicant submits an appropriate costs order is $8,949.66. The applicant'sposition can be summarised as follows:(a) The respondent's claim for costs in respect of an interlocutoryapplication is disputed.(b) There should be a general reduction in the time allocations for a numberof categories claimed because the proceeding was not a full trial but ajudicial review application dealt with on the papers.(c) A 50 per cent discount should be applied given the importance of thejurisdictional issue, that the issue was novel and that contrary to therespondent's position, the judgment concluded compensation ispayable and a decision is to be made in due course.Assessment[6] I am satisfied costs are appropriately claimed for transfer of the proceedingfrom the High Court Registry at Tāmaki Makaurau to the High Court Registry atTe Whanganui-a-Tara. The application was filed on 2 February 2017 along with anaffidavit in support. A order was made transferring the proceedings by theDeputy Registrar, on 22 March 2017. The fact the order was made by consent doesnot disentitle the respondent to the costs of making its successful application.[7] The proceeding was classified as category 2B for costs purposes by Peters J on8 March 2017. I do not accept the applicant's contention that several of therespondent's claims should be reduced on the basis this was a judicial review hearingand not a trial. As to the submission that it was a judicial review application "dealtwith on the papers" if that is intended to be a reference to the fact that there was onlyaffidavit and viva voce evidence and therefore costs should be reduced, the propositionis unprincipled. There is no basis upon which the reasonable time allocations for thesteps in the proceeding should be reduced and, as the respondent submits, effectivelyrecategorising the proceeding is contrary to the parties' agreement to the classificationat the case management conference.[8] I am satisfied a 30 per cent reduction in the costs the respondent claims is bothappropriate and sufficient to reflect the flaw in the argument to which I alluded at [114]of the judgment. Ultimately, the respondent was successful and as the successful partyit is entitled to its costs. A reduction in those costs by 30 per cent to reflect oneerroneous aspect of its case is sufficient.Result[9] The Ministry is entitled to the $18,196.64 in costs and disbursements sought._____________________________Karen Clark JSolicitors:Foy & Halse, Auckland for ApplicantCrown Law, Wellington for Respondent