SAVE KAPITI INCORPORATED v NEW ZEALAND TRANSPORT AGENCY [2013] NZHC 3314

SAVE KAPITI INCORPORATED v NEW ZEALAND TRANSPORT AGENCY [2013] NZHC 3314 [11 December 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2013-485-000724[2013] NZHC 3314BETWEEN SAVE KAPITI INCORPORATEDAppellantAND NEW ZEALAND TRANSPORTAGENCYRespondentTHE BOARD OF INQUIRY INTO THEMACKAYS TO PEKAPEKAEXPRESSWAY PROPOSALDecision-makerCIV-2013-485-000744BETWEEN ALLIANCE FOR A SUSTAINABLEKAPITI INCORPORATEDAppellantAND NEW ZEALAND TRANSPORTAGENCYRespondentMemorandaon Costs:RJB Fowler QC for Appellant Save Kapiti IncorporatedDr M O'Sullivan for Appellant Alliance for a Sustainable KapitiIncorporatedJ Hassan for Respondent New Zealand Transport AgencyJudgment: 11 December 2013COSTS JUDGMENT OF D GENDALL JBackground[1] In a judgment I gave in this proceeding on 19 August 2013 I dismissed appeals brought by Save Kapiti Incorporated (Save Kapiti) and Alliance for a Sustainable Kapiti Incorporated (Alliance) against a decision of a Board of Inquiryappointed by the Minister for the Environment granting resource consents for a proposed expressway between Mackays Crossing and Peka Peka north of Wellington. In dismissing these appeals I reserved costs and indicated at paragraph [86] of my 19 August 2013 judgment that if counsel were unable to agree between themselves on the issue of costs they could file memoranda and in the absence of any party indicating they wished to be heard on the issue I would decide the question of costs based on all the material before the Court and the memoranda filed.[2] Counsel for the respondent in each appeal has filed a memorandum on costs dated 23 September 2013 which indicates that no agreement has been reached on costs. The respondent New Zealand Transport Agency (NZTA), as the successful party in opposing the appeals, seeks costs in terms of that memorandum totalling $11,542.[3] Counsel for Save Kapiti has filed a memorandum in response dated 6 November 2013 and Dr O'Sullivan for the Alliance has also filed a memorandumon costs dated 6 November 2013. No memorandum on costs has been filed by the decision-maker, the Board of Inquiry into the Expressway Proposal. Also, no party has indicated they wish to be heard before me on the question of costs.[4] I have had an opportunity to consider the memoranda filed on the costs question and now give my decision.New Zealand Transport Agency's position on costs[5] The respondent New Zealand Transport Agency as I have noted above, seeks an award of costs as the successful party here on a category 2B scale basis totalling $11,542.[6] It was noted by counsel for NZTA that attempts were made to reach agreement with counsel for Save Kapiti and the Alliance in relation to costs but these were unsuccessful. As the parties have been unable to reach agreement between themselves as to costs, the NZTA makes this application to the Court.[7] In accordance with r 14.3, the NZTA considered these proceedings to be a"Category 2 proceeding" for which the average daily recovery rate is $1990. I agree.[8] Essentially here no issue was taken by Save Kapiti or the Alliance with the 2B categorisation of this proceeding or the $11,542 quantum sought by NZTA. On this aspect, counsel for the NZTA indicated that it considered that it should seek a contribution to its costs from Save Kapiti and the Alliance as the unsuccessfulappellants, mindful of the fact that the NZTA's participation in these High Court proceedings inevitably resulted in the expenditure of public funds. It said it was therefore incumbent on the NZTA to seek to mitigate that expenditure.Save Kapiti's position on costs[9] In his 6 November 2013 memorandum on costs Mr Fowler QC for Save Kapiti indicated, as I have noted above, that Save Kapiti takes no issue with the costs quantum calculation outlined by counsel for NZTA in his costs memorandum. The only issue that Save Kapiti appeared to raise related to the question of contribution towards any costs award which was made as between the two appellants, Save Kapiti and the Alliance. Mr Fowler QC submitted that this was not a case for a joint and several award of costs but one for a proper apportionment between the appellants in defined shares.[10] On this, although Mr Fowler noted that the Save Kapiti case was different and related to a much more confined issue than that of the Alliance in its appeal, he said a pragmatic outcome would be that each appellant might meet one half of any costs award which was made.Alliance for a Sustainable Kapiti Incorporated's position on costs[11] Dr O'Sullivan's submissions for the Alliance noted that they are not in a position to meet costs in this matter.[12] She submitted that they were a very small community group, they did not have a large support base and were not eligible for assistance from an environmental legal fund or elsewhere. The decision to represent themselves in this matter they saywas based on their limited ability to raise funds and they were not able to pay for legal representation. It was noted that even paying the required court fees was difficult.[13] Dr O'Sullivan's 6 November 2013 memorandum raises other issuesconcerning the position of the Alliance with respect to the appeal and what she contended was an unfortunate focus on Save Kapiti as the larger body throughout this matter. Notwithstanding this, the essential message from the Alliance was that they were a genuine community group with a real concern over issues raised by the expressway proposal and the Board of Inquiry decision.Board of Inquiry[14] As noted above, the Board of Inquiry made no submissions on costs. Costs were not being sought from the Board.The approach/principles to be adopted[15] Under r 14.1 High Court Rules, costs are at the discretion of the Court. The principles applying to costs are set out at r 14.2 including at r 14.2(a) where the clear starting point is that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.[16] There are also relevant rules in relation to refusing and/or reducing costs in r 14.7 as follows:14.7 Refusal of, or reduction in, costsDespite rules 14.2 to14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—(a) the nature of the proceeding or the step in a proceeding is such that the time required by the party claiming costs would be substantially less than the time allocated under band A; or(b) the property or interests at stake in the proceeding were of exceptionally low value; or(c) the issues at stake were of little significance; or(d) although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or(e) the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or(f) the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—(i) failing to comply with these rules or a direction of the court; or(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or(iii) failing, without reasonable justification, to admit facts, evidence, or documents, or accept a legal argument; or(iv) failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or(v) failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or(g) some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious. (Emphasis added)[17] In my view this is a case where the factors identified at r 14.7(e) above apply. As I see the position, this proceeding concerned a matter of public interest and a legitimate challenge to the public decision made by the Board.[18] On this, McGechan on Procedure at paragraph HRPt14.17(4) addresses the question of refusing to award costs in cases of public interest challenge and states:(4) Public interest challengesWhere appropriate, Courts have declined to award costs, or awarded only reduced costs, against a party unsuccessful with a genuine and legitimate public law challenge, ie one raising public law issues of general importance, having merit and not brought for personal gain: Gibbs v New Plymouth District Court (No 2) HC New Plymouth CIV-2004-443-115, 5 October 2006 (where the principles are summarised and the authorities collected).In Titahi Bay Residents Association Inc v Porirua CC HC Wellington CIV-2007-485-1933, 18 October 2007 Simon France held at [8] that:"The importance of public interest litigation is reflected inthe fact it is a recognised basis for departure from the normal costs rules. However, the liability for costs remains a legitimate incentive for ensuing that challenges have a sound basis, and do not reflect, for example, a blindness to the fact that people can legitimately take different positions."[19] Although Mr Fowler QC in his formal costs submissions may not have directly opposed costs based on public interest grounds, in my view this is a situation where both Save Kapiti and Alliance, although unsuccessful, were genuine in bringing their appeals, and had a legitimate public law challenge on issues of general importance for the community and the region. There seems to be no suggestion that the appeals were brought for personal gain of any type. I say this given particularly that the appellants were two community groups, with the Alliance in particular suggesting it has entirely limited financial means.Conclusion[20] I conclude therefore in terms of r 14.7(e) High Court Rules that this is a situation where the appeals concerned matters of public interest and both Save Kapiti and the Alliance, in acting reasonably in the conduct of the proceeding generally, are entitled to have the Court exercise its discretion under this rule to refuse an award of costs.[21] For these reasons costs are to lie where they fall. There is to be no order made here as to costs....................................................D Gendall JSolicitors:RJB Fowler QC, WellingtonDr M O'Sullivan, WaikanaeChapman Tripp, WellingtonChancery Green, AucklandCowper Campbell, Auckland