NEW CONSERVATIVE v TELEVISION NEW ZEALAND LIMITED [2020] NZHC 3096

NEW CONSERVATIVE v TELEVISION NEW ZEALAND LIMITED [2020] NZHC 3096 [23 November 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-001850[2020] NZHC 3096UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court Rules 2016BETWEEN NEW CONSERVATIVEFirst ApplicantLEIGHTON JAMES BAKERSecond ApplicantAND TELEVISION NEW ZEALAND LIMITEDRespondentHearing: On the papersAppearances: T Mijatov for the ApplicantsM Ferrier for the RespondentJudgment: 23 November 2020JUDGMENT OF WOOLFORD J[As to costs]This judgment was delivered by me on Monday, 23 November 2020 at 4:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Franks Ogilvie (S Franks and B Morten), Wellington, for the ApplicantsMinterEllisonRuddWatts (M Ferrier and B Davies), Wellington, for the RespondentCounsel: T Mijatov, Wellington, for the Applicants[1] This is an application by the respondent, Television New Zealand Ltd (TVNZ),for costs following my decision of 7 October 2020, with reasons given the next dayon 8 October 2020. In that judgment, I dismissed an interlocutory application for anorder requiring TVNZ to invite Leighton Baker, the second applicant, as leader ofNew Conservative, the first applicant, to participate in the 1 News Your Vote 2020Multi Party Debate, which was scheduled to be held at 7.00 pm on 8 October 2020.1The parties have not been able to agree on costs.Factual background[2] New Conservative is a registered political party. It contested the 2020 generalelection, with 72 candidates standing in all general and Māori electorate seats. Priorto the general election on 17 October 2020, TVNZ organised a multi-party debate.Mr Baker was not invited. The applicants sought a judicial review of TVNZ's decisionnot to invite Mr Baker. In a substantive statement of claim, they sought a declarationthat TVNZ's decision was unlawful. In an interlocutory application for interim relief,they sought an order requiring TVNZ to invite Mr Baker to participate in the debate.TVNZ opposed the application.[3] I heard the matter urgently on 7 October 2020. After hearing argument,I dismissed the interlocutory application. My reasons followed the next day. Theapplicants had not established a prima facie case that TVNZ had acted unreasonably,failed to take into account relevant considerations and/or unlawfully fettered itsdiscretion. Accordingly, it was not necessary for the Court to consider the balance ofconvenience. The applicants later filed a notice of discontinuance of the substantiveproceedings on 22 October 2020.Legal principles (costs)[4] Costs are at the discretion of the Court. Part 14 of the High Court Rules 2016provides guidance as to how that discretion is to be exercised. The general principleis that the unsuccessful party in a proceeding should pay costs to the successful party.Costs should be assessed by applying the appropriate daily recovery rate to the time1 New Conservative v Television New Zealand Ltd [2020] NZHC 2650.considered reasonable for each step reasonably required in relation to the proceedingor interlocutory application. Ultimately, the overriding consideration when exercisingthe discretion to award costs is that any award ought to do justice between the parties.2Costs claimed and opposition[5] The parties are agreed that TVNZ, as the successful party, is entitled to costson a 2B basis and reasonable disbursements. The sole issue is as to quantum.[6] TVNZ seeks costs and disbursements as set out in the tables below.Scale costs (2B – $2,390 daily recovery rate)Item Description Allocation Amount Comment23 Filing notice of oppositionto application for interimorders0.6 $1,434.0024 Preparation of writtensubmissions1.5 $3,585.0030 Preparation of affidavit 1 $2,390.00 The allocation foritem 30 is two daysfor the first hearingday. TVNZ hasclaimed one day onthe basis that one(albeit a detailed anddeterminative)affidavit was filed.32 Preparation for hearing 1 $2,390.00 The allocation foritem 32 is two daysfor the first hearingday. TVNZ hasclaimed one day onthe basis that thehearing did not last afull day.26 Appearance of principalcounsel0.5 $1,195.0027 Appearance of secondcounsel0.25 $597.50$11,591.50Disbursements (excluding GST)Court filing fee – notice of opposition $ 95.65Taxis between airport and court $152.70Return flights from Wellington to Auckland $732.34$980.692 Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5].[7] The applicants accept that costs and disbursements are payable to TVNZ. Theyaccept that items 23, 24 and 26 are properly claimed on a 2B basis. However, theysay that there is no basis for TVNZ's claim for scale costs that do not apply tointerlocutory applications, namely items 30 and 32. The applicants also disputeitem 27. They submit that given the brevity of the hearing (which lastedapproximately two hours) and the lack of complexity in the subject-matter of theapplication, the Court should not certify for second counsel.[8] Next, as to disbursements, the applicants dispute TVNZ's claim for taxisbetween the airport and court and the return flights from Wellington to Auckland.They say that they should not be liable for expenses relating to TVNZ's decision touse Wellington-based counsel or for them to attend in-person in Auckland.Analysis[9] First, I turn to disputed items 30 (preparation of affidavit) and 32 (preparationfor hearing). Those items are listed in sch 3 of the High Court Rules under the heading"Preparing for affidavit hearing". The applicants' complaint is that the matter beforethis Court on 7 October 2020, for which costs are now sought, was an "Interlocutoryapplication", not an affidavit hearing. Indeed, it is for this reason that the applicantsaccept that items 23, 24 and 26 — which are listed in sch 3 under the heading"Interlocutory applications" — are properly claimed.[10] There is some merit to the applicants' point. The preparation of an affidavit,which is claimed as item 30, is already appropriately recovered under item 23 (filingopposition to interlocutory application), which TVNZ also claims and which theapplicants accept as being appropriate. Rule 7.25 of the High Court Rules providesthat an affidavit must be filed and served with a notice of opposition to an interlocutoryapplication. The preparation of an affidavit is therefore included in item 23. Further,I consider that item 24 (preparation of written submissions) adequately provides forTVNZ's preparation for the hearing, which it claims separately as item 32.[11] Secondly, turning to item 27, the applicants submit that it is not appropriate forTVNZ to claim for the appearance of second counsel given the brevity of the hearingand the lack of any particular complexity involved in the proceeding. TVNZ, on theother hand, submits that the costs claimed are reasonable, having regard to thecomplexity and significance of the proceeding, including the potential consequencesof the mandatory injunction sought.[12] Although the proceeding was not lengthy or complex (whether legally orfactually), I am of the view that it did warrant second counsel because of itssignificance and urgency. In particular, the opposition to the application had to beprepared urgently. Not only was a comprehensive 10 page affidavit prepared andsworn, but submissions were drafted, all in the space of a day or so. It is obvious thatmore than one counsel was required. The applicants were also represented by twocounsel. I therefore agree with TVNZ that item 27 should be included in the scheduleof costs payable.[13] Thirdly, as to disbursements, TVNZ claims expenses for its Wellington-basedcounsel to attend in-person the hearing in Auckland. This includes taxis between theairport and court and return flights from Wellington to Auckland. TVNZ submits thatthese expenses were specific to, and reasonably necessary for, the conduct of theproceeding. TVNZ also notes that, on 6 October 2020, before the proceeding wasfiled in Auckland, its solicitors wrote to counsel for the applicants relating to thehearing location — the correspondence recorded, among other things, that, on5 October 2020, the solicitors for the applicants had discussed with TVNZ's GeneralCounsel the filing of the proceeding in Wellington for the convenience of both parties.[14] In reply, the applicants say that while there had been some discussion betweenthe solicitors for New Conservative and the in-house lawyer for TVNZ on 5 October2020, no formal agreement was reached. Counsel for TVNZ had no formal basis forexpecting the documents to be filed in Wellington, nor did either party seek leave tohave the matter heard in a different registry from the proper registry, being Auckland.Counsel for the applicants clarifies that the conversation on 5 October 2020 took placeafter counsel had already made tentative arrangements to have the matter heard in theAuckland High Court. When later informed of the conversation, counsel was reluctantto disturb his provisional arrangements for necessary judicial availability in Auckland.Given the urgency of the matter, with the debate being scheduled for the evening of8 October 2020, counsel was not willing to risk losing the benefit of the slot whichhad been provisionally organised with court staff in Auckland.[15] That is a totally understandable position for counsel to take. I also note thatthe correspondence from TVNZ's solicitors dated 6 October 2020 states, "Myunderstanding is that you [counsel for the applicants] propose filing the application inAuckland and are discussing with the Registry a hearing of the application as soon asthis afternoon." Therefore, TVNZ had some knowledge of the situation. That beingsaid, I also acknowledge that TVNZ is entitled to its counsel of choice. However, thatis not the issue at hand. The issue is whether it was "reasonably necessary"3 forTVNZ's Wellington-based counsel to travel to Auckland to attend in-person. In theend, I am not satisfied that that was reasonably necessary. Justice Lang, in a minutedated 6 October 2020, gave leave to counsel "to attend the hearing remotely given thatthey are based in Wellington". Counsel were therefore not required to attend in-person, nor would there have been any notable disadvantage in appearing remotely.Costs awarded[16] TVNZ is entitled to costs and disbursements as set out in the table below.Scale costs (2B – $2,390 daily recovery rate)Item Description Allocation Amount23 Filing notice of opposition toapplication for interim orders0.6 $1,434.0024 Preparation of written submissions 1.5 $3,585.0026 Appearance of principal counsel 0.5 $1,195.0027 Appearance of second counsel 0.25 $597.50$6,811.50Disbursements (excluding GST)Court filing fee – notice of opposition $95.65Total $6,907.15_________________________Woolford J3 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR14.12.01(1)].