RONGOTAI INVESTMENTS LIMITED v LAND VALUATION TRIBUNAL [2020] NZHC 730

RONGOTAI INVESTMENTS LIMITED v LAND VALUATION TRIBUNAL [2020] NZHC 730 [8 April 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-662[2020] NZHC 730IN THE MATTER of the application for judicial review of aLand Valuation Tribunal hearing in respectof objections under the Rating ValuationsAct 1998 and the Land ValuationProceedings Act 1948UNDER THE Judicial Review Procedure Act 2016BETWEEN RONGOTAI INVESTMENTS LIMITEDAND RONGOTAI ESTATES LIMITEDApplicantsAND LAND VALUATION TRIBUNALFirst RespondentAND 2468 LIMITEDSecond RespondentAND BUNNINGS LIMITEDThird RespondentAND LYALL BAY PROPERTIES LIMITEDFourth RespondentAND WELLINGTON INTERNATIONALAIRPORT LTDFifth RespondentAND WELLINGTON CITY COUNCILSixth RespondentAND ATTORNEY-GENERALSeventh RespondentAND NZ CASH FLOW CONTROL LIMITEDEighth RespondentHearing: On the papersAppearances: S Mills QC and M R Wolff for ApplicantsNo appearance for the First RespondentK P Sullivan for the Second, Fifth and Eighth RespondentsS V McKechnie and J R Meager for the Third RespondentNo appearance for the Fourth RespondentNo appearance for the Sixth RespondentD Jones for the Seventh RespondentDate: 8 April 2020JUDGMENT OF COOKE J(Costs)[1] The respondents who successfully opposed the applicants' application forinterim orders now seek costs. In my judgment dismissing that application I set out apreliminary view that the opposing respondents were entitled to costs on a 2B basis,but whether that should be two costs awards, or a single costs award to be shared wasa matter to be addressed.1[2] The third respondent ("Bunnings") and the parties represented by Mr Sullivan(the second, fifth and eighth respondents) each now seeks costs on a 2B basis. Theapplicants ("Rongotai") oppose arguing that there should either be no costs award, orthat more limited costs should be awarded. It is accepted that any costs awardedshould be calculated on a 2B basis.[3] The memorandum of counsel for Rongotai raises questions of principleconcerning the award of costs in relation to judicial review claims. In thecircumstances I will address those principles first, and then determine the appropriateoutcome in this case.Costs in judicial review[4] Claims for judicial review can raise distinct costs issues that may not beexpressly addressed by the detailed costs rules in Part 14 of the High Court Rules1 Rongotai Investments Ltd v Land Valuation Tribunal [2019] NZHC 3040 at [36].2016. Given that there is potentially a greater need for the application of the discretionunder r 14.1 when determining the appropriate costs outcome. The principles set outin r 14.2, and the balance of the rules set out in Subpart 1 of Part 14, neverthelessprovide the starting point for the assessment.[5] In a classical judicial review challenge to the exercise of a statutory power ofdecision by a governmental body, the active respondent will normally be the decision-maker.2 But other parties may wish to participate in the proceedings because thechallenge affects their interests. They can be involved as named respondents, orparticipate in other ways such as interested parties. Precisely how they are involved,and whether they are involved as a named respondent, is a matter for judicialdetermination.3 Often such parties will be supporting the decision of the decision-maker, although that is not always the case. The Court is often assisted by theparticipation of such parties, and in any event such parties may have distinct intereststhat warrant their participation.[6] An issue can emerge for such cases if the judicial review claim is notsuccessful, and all named respondents seek costs. That can be seen as potentiallyunjust, particularly if an applicant for review faces multiple costs claims, yet wouldonly be entitled to a single award if successful. The right of access to the court topursue judicial review is a fundamental one, recognised by s 27(2) of the New ZealandBill of Rights Act 1990. It is features of this kind that have resulted in the practice inEngland and Wales that usually only one award of costs will be awarded in anunsuccessful claim for judicial review.4 In New Zealand there is no such well-established practice — it is a matter of applying the discretion in r 14.1. Additionalrespondents who support a decision-maker can be awarded costs, or receive a partialaward of costs, depending on the circumstances.2 The appropriate parties are applicants and respondents, not plaintiffs and defendants – see s 8(2)and s 9 (1) of the Judicial Review Procedure Act 2016.3 See the authorities summarised in Stakeholders in Methyl Bromide Reduction Inc v EnvironmentalProtection Authority [2019] NZHC 3842 at [32].4 See Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note)[1995] 1 WLR 1176 (HL) at 1178 per Lord Lloyd; and R (Smeaton) v Secretary of State for Health(No 2) [2002] EWHC 886 (QB), [2002] 2 FLR 146 at [34]-[35].[7] Not all judicial review claims are of this character, however. Some claims mayinvolve challenges to decisions made by bodies exercising judicial, or quasi-judicialfunctions in underlying proceedings.5 A judicial review challenge advanced in thiscontext will not usually involve the decision-maker actively defending the decision.The position is analogous to a subsequent appeal of decisions of such tribunals or otherbodies to the High Court.6 The decision-maker does not usually actively defend thedecision as this would involve it entering the fray.7 The parties to the underlyingproceedings will be the active respondents for such appeals and judicial review claims.This is reflected in s 9 of the Judicial Review Procedure Act 2016, as all parties to anunderlying proceeding are required to be named as respondents.8 Decision makingbodies can nevertheless be permitted to appear and make submissions in such caseswhen there are issues of principle, such as the interpretation of that body's statute, inissue. These cases are closer in kind to the normal civil proceedings regulated by thedetailed rules in Part 14. These principles generally apply notwithstanding thedifferent provisions that regulate the involvement of parties.9[8] There are various other potential contexts in which judicial review claims areadvanced which do not fit neatly into either the categories described above. That is afurther reason why the discretion contemplated by r 14.1 may be of greater relevancein determining costs in judicial review claims. The points made above involvegeneralisations, but they are nevertheless important underlying principles.Application in the present case[9] Rongotai's first argument here is that costs should not be awarded at all as thetrue respondent to the claim was the Land Valuation Tribunal itself which does notseek costs.5 One way of thinking of the difference is that the first category involves decisions made by theexecutive branch of government, and the second the judicial branch.6 See New Zealand Paper Mills Ltd v Otago Acclimatisation Society [1992] 1 NZLR 400 (CA) at403; Fonterra Co-operative Group Ltd v Grate Kiwi Cheese Co Ltd (2009) 19 PRNZ 824 (HC).7 See New Zealand Engineering Industrial Union of Workers v Court of Arbitration [1976] 2 NZLR283 at 284 (CA); and Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014]NZAR 177 at [27].8 That sub-section does not apply when there are no formal "proceedings" – see Rabson v JudicialConduct Commissioner [2019] NZHC 2279 at [21].9 See Environment Defence Society Inc v The New Zealand King Salmon Company Ltd [2014]NZSC 41 at [12]–[13].[10] The Tribunal itself did not participate in the application because it would notlikely have been appropriate for it to do so. When the Attorney-General appeared toadvance submissions I asked counsel to explain his role. Counsel said that this wasdone because the application involved allegations relating to a judicial officer. Hisparticipation was on that basis. But the Attorney-General does not fulfil the role ofdefending the substantive decisions of the Tribunal. As described at [7] above, it isthe parties to the underlying proceedings that are the active respondents. And it wasthe opposing respondents who took on that role here, and they are entitled to seek costsaccordingly. For that reason, I reject Rongotai's first submission.[11] Counsel for Rongotai makes the related point that the criticisms that were thesubject matter of the application involved criticisms of the Tribunal rather than claimsagainst any of the other respondents. That may be true, but the Court only awardscosts against judicial officers in rare circumstances.10 And in any event costs areawarded for the costs of the proceedings, and here the respondents who seek costs doso in relation to their expenditure in actively opposing the orders sought.[12] Rongotai further argue that their application raised issues relevant to the publicinterest, and accordingly no costs should be awarded against them, or any such costsaward should be reduced. Such an argument is properly assessed in accordance withthe principles referred to in r 14.7(e). I do not accept that costs should be eliminated,or reduced on that basis. The underlying proceedings concern the value of land, andwhilst the judicial review challenge, and the application for interim relief focus onallegations of bias and pre-determination, the underlying subject matter involvesdistinctly commercial matters. I accept that the matters raised in the challenge suggestthat the Tribunal acted in an unorthodox way in a number of respects, and that for thisreason Rongotai has an arguable case that the Tribunal has acted unfairly or withapparent bias/pre-determination. But notwithstanding its respectable arguments, theapplication for interim orders was unsuccessful, and a key principle of the costs rulesis that the unsuccessful party should pay the costs of the successful party.10 See N v District Court of New Zealand [2020] NZHC 252, citing Coroner's Court v Newton [2006]NZAR 312 (CA).[13] The most difficult question is whether Rongotai should meet more than oneaward of costs. The award of costs in the circumstances here is analogous to the costsawards that might be expected on an appeal of the Tribunal to this Court. There mayremain potential differences given there may be more than one appeal, and distinctissues may arise in such appeals for appellants and respondents. But the position isnevertheless analogous.[14] The relevant rule to apply is r 14.15 which provides:14.15 Defendants defending separatelyThe court must not allow more than 1 set of costs, unless it appears to the courtthat there is good reason to do so, if—(a) several defendants defended a proceeding separately; and(b) it appears to the court that all or some of them could have joined intheir defence.[15] Here the second, sixth and eighth respondents were represented by onecounsel, but Bunnings was separately represented. Both groups seek costs. InIndependent Māori Statutory Board v Auckland City Council Wylie J said of this rulewhen awarding one set of costs to be shared between two respondents to an appeal:11[8] As the Court has previously noted, the policy behind the rule is tominimise costs by shortening hearings where a joint defence can reasonablybe expected. The rule suggests a policy which requires the Court to exercisesome caution in awarding costs, without more, in favour of multiple parties,particularly when there is some overlap or community interest in the litigationposition of the parties seeking costs.12[16] Here Bunnings had much the same interest as the three respondents who werejointly represented. It may well have wished to be separately represented, in partbecause some of the unorthodox steps taken by the Tribunal were associated with thestance taken by Bunnings before the Tribunal. But that does not mean that Bunningsshould necessarily be entitled to an additional costs award.11 Independent Māori Statutory Board v Auckland City Council [2017] NZHC 678 at [8].12 Norfolk Trustee Co v Tattersfield Securities Ltd HC Auckland CIV-2004-404-3668, 30 March2005 at [51].[17] I have nevertheless decided that two awards of costs should be made. Therespondents who opposed the interim orders sought by Rongotai had significantinterests at stake. The orders sought were to prevent the Tribunal continuing with thescheduled hearings which would have involved significant disruption to them. Eachrespondent also needed to carefully consider their position given that the unorthodoxways in which the Tribunal had proceeded. That gave rise, and continues to gives rise,to a risk that this Court may order that the Tribunal's decisions need to be set asidebecause of the grounds of apparent bias and pre-determination raised. It is alsorelevant that the application for interim orders was made with some urgency, therebyreducing the prospect of the respondents being able to organise themselves to presenta single opposition, even if they could agree on a joint stance on the underlying pointsthat Rongotai was advancing. Given those circumstances, therefore, it was notunreasonable for there to be some separate representation. I also take into account thecosts claims are for relatively modest amounts.[18] I therefore conclude that each of the claims for costs should be allowed asclaimed.13Cooke JSolicitors:Morrison Kent, Wellington for ApplicantsPort Nicholson Chambers, Wellington for Second, Fifth and Eighth RespondentsSimpson Grierson, Wellington for Third RespondentCrown Law, Wellington for Seventh Respondent13 The exception is the third respondent's claim for sealing the order, and for the filing fee for sealingthe order. That is only allowed if that step has been taken, which may not have been necessary.