TAUEKI AND ANOR V CROWN FORESTRY RENTAL TRUST AND ANOR CA72/2013 [2013] NZCA 241

TAUEKI AND ANOR V CROWN FORESTRY RENTAL TRUST AND ANOR CA72/2013 [2013] NZCA 241 [19 June 2013]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THENAME OF PRACTITIONER Y AND OF THE DETAILS OF THEHIGH COURT JUDGMENT OF 14 DECEMBER 2012 REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA72/2013[2013] NZCA 241BETWEEN WILLIAM JAMES TAUEKI ANDPRACTITIONER YApplicantsAND CROWN FORESTRY RENTAL TRUSTFirst RespondentAND MUAUPOKO TRIBAL AUTHORITYSecond RepondentHearing: 10 June 2013Court: Arnold, Ellen France and Harrison JJCounsel: J A Langford for W J TauekiH A Cull QC for practitioner YS A Barker and P J Niven for First RespondentNo appearance for Second RespondentJudgment: 19 June 2013 at 10 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B No order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Ellen France J)Introduction[1] The applicants seek an extension of time for filing an appeal under r 29A of the Court of Appeal (Civil) Rules 2005. They wish to appeal against decisions of Ronald Young J ordering Mr Taueki to pay indemnity costs in favour of the first respondent, the Crown Forestry Rental Trust (the Trust), and in favour of the second respondent, the Muaupoko Tribal Authority, and that practitioner Y pay a portion of the indemnity costs personally in favour of the Trust.1[2] The costs decisions were made in the context of a proceeding brought by Mr Taueki challenging a decision by the Trust as to funding for Treaty of Waitangi claimant groups. Practitioner Y represented Mr Taueki in the proceeding in the High Court.The application for an extension of time[3] Up until the hearing before us, the application for an extension of time was opposed.2 The Trust's opposition was primarily on the basis the appeals lackedmerit. The Muaupoko Tribal Authority associated itself with the Trust's position.[4] However, over the course of the hearing, Mr Barker for the Trust obtained further instructions and advised the Court that the application was no longer opposed. The Authority was not represented at the hearing before us but, given the alignment between its position and that of the Trust, we treat their position as continuing to reflect that of the Trust.[5] The change in approach was appropriate. Practitioner Y's appeal against thedecision the practitioner pay costs personally was filed on 5 February 2013, one daylate because of a mix up in the calculation of the 20 "working days" involving theeffect of Wellington Anniversary Day. The period of delay in filing the appeals against the two earlier judgments of 23 August and 4 September 2012 was longer (several months). However, as Mr Barker responsibly accepted, if practitioner Y was1 Taueki v Crown Forestry Rental Trust HC Wellington CIV-2011-485-1497, 23 August 2012; 4 September 2012; and 14 December 2012.2 One application was filed because at that time the applicants were represented by one counsel. We treat that application as sufficient to cover both applicants.given an extension of time to appeal then the impact of extending time to Mr Taueki in relation to the August and September judgments was minimal. We understand that practitioner Y has paid the costs for which the practitioner is responsible. In these circumstances, the interests of justice favour an extension of time.3 By consent, we order accordingly.Costs[6] The applicants sought costs on the application on the basis that they have succeeded and have incurred costs in preparing for the hearing of the application.[7] We have concluded that, although the applicants have succeeded, there should be no order as to costs. The first point we note is that the respondents were unnecessarily put to costs associated with the application. That is because an issue about representation of the applicants was not resolved until just before the hearing when Mr Langford was instructed to represent Mr Taueki. The representation issue was a matter properly raised early on in the piece by the respondents and should have been able to have been resolved by the applicants promptly and on an informal basis. In addition, the applicants have had something of an indulgence particularly in relation to the two earlier High Court decisions for which the delay in filing the appeal was more significant.Non-publication order[8] In the High Court, an order was made prohibiting publication of the name of practitioner Y and details of the judgment of 14 December 2012 pending appeal to this Court.4 Mr Barker for the Trust queried the utility of maintaining the non-publication order. He said the 14 December 2012 judgment had been published on a database accessible by members of the legal profession. Ms Cull QC for the practitioner supported retention of the non-publication order. She said that the judgment had now been removed from the database.3 My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].4 Taueki v Crown Forestry Rental Trust HC Wellington CIV-2011-485-1497, 19 December 2012.[9] As we indicated to counsel at the hearing, we consider that if there are issues about maintaining the suppression order at this stage, these issues are for the High Court. The non-publication order accordingly remains in force.Result[10] The application for an extension of time to appeal is granted. We make no order for costs.Solicitors:Langford Law, Wellington for W J TauekiKathy Stringfellow Law, Wellington for practitioner YBuddle Findlay, Wellington for First RespondentTuia Legal, Wellington for Second Respondent