THE ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC V THE MINISTER OF CONSERVATION AND ORS HC WN CIV-2005-485-2419

THE ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC V THE MINISTER OF CONSERVATION AND ORS HC WN CIV-2005-485-2419 30 March 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2005-485-2419IN THE MATTER OF Section 71 of the Wildlife Act 1953 AND IN THE MATTER OF the Declaratory Judgments Act 1908 BETWEEN THE ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC Plaintiff AND THE MINISTER OF CONSERVATION First Defendant AND THE MINISTER OF ENERGY Second Defendant AND SOLID ENERGY NEW ZEALAND LIMITED Third Defendant Hearing: On the papers Appearances: T J Castle for the plaintiff B H Arthur for the first and second defendants N S Elsmore for the third defendant Judgment: 30 March 2006JUDGMENT AS TO COSTS OF MACKENZIE J[1] In my judgment delivered on 16 December 2005, I invited the parties to submit memoranda as to costs. These memoranda have now been received. Counsel for the plaintiff seeks costs against all defendants jointly and severally. He relies on the general principle that the party who fails should pay costs to the party who succeeds and submits that the plaintiff was wholly successful in the proceeding. He seeks costs on a 2B basis plus disbursements, a total of $9,659.41.[2] Counsel for the first and second defendants accepts the general principle that the party who fails should pay costs to the party who succeeds, and agrees that if costs are awarded a 2B basis is appropriate, and accepts the plaintiff's schedule. She submits that this was a test case, raising questions about the relationship between the Wildlife Act 1953 and a licence under the Mining Act 1971 that had not been considered before and that the public interest in having these matters resolved should be taken into account when assessing the Minister's share of costs. Counsel submits that the Ministers should be treated in effect as one party. Counsel notes the Ministers are prepared to meet a half share of the claimed costs less any deduction the Court may be willing to consider given the novel and public interest aspects of the case. [3] Counsel for the third defendant opposes the granting of the order of costs, submitting that there are sufficient reasons to refuse to make an order for costs in favour of the plaintiff, and in particular that the matter before the Court was judicially untested and unclear to all parties and that it required the Court to resolve differing interpretations between the parties. Counsel submits that this was not a hearing where the parties succeeded or failed, in that there was uncertainty as to the interpretation of the Act, and that the interpretation of the section has implications for both the second and third defendants, and, in opposing the declaration sought by the plaintiff, the defendants were at all times acting entirely properly. [4] It is clear that the Court will sometimes, in exercising its discretion, take account of the public interest nature of the proceedings in determining costs. The issue arises most typically in the case of an unsuccessful plaintiff who seeks to avoid an award of costs against it. I do not think that in this case, where the first and second defendants are the Ministers responsible for the administration of the legislation and the third defendant is a State-owned Enterprise which is affected by the legislation, the public interest nature of the litigation should lead to the defendants being relieved of a liability for costs which would otherwise attach. [5] Applying the ordinary principles, I consider that the plaintiff is to be regarded as a successful party, and that there are no circumstances which would justify a departure from the general principle.[6] In the circumstances, there will be an order for costs in favour of the plaintiff in the sum of $9,659.41. That will be payable as to one half by the first and second defendants jointly and as to one half by the third defendant. "A D MacKenzie J"SolicitorsT E Crossen, Christchurch, for plaintiff Crown Law Office, Wellington, for first and second defendants Anderson Lloyd Caudwell, Christchurch, for third defendant