Environmental Defence Society Incorporated v The New Zealand King Salmon Company Ltd
| Jurisdiction | New Zealand |
| Judge | Elias CJ,Arnold J |
| Judgment Date | 19 November 2014 |
| Neutral Citation | [2014] NZSC 167 |
| Docket Number | SC 82/2013 |
| Court | Supreme Court |
| Date | 19 November 2014 |
[2014] NZSC 167
Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ
SC 82/2013
SC 84/2013
IN THE SUPREME COURT OF NEW ZEALAND
Application by appellant and by respondent for costs in two interrelated appeals relating to resource consents for salmon farming — public interest litigants v commercial interests litigants — appeals raised important issues under the Resource Management Act 1991 — in second appeal the public interest litigant had succeeded on its argument but failed on the facts — whether the rule that costs would normally follow the event was displaced by the importance of the issue and the fact the appeal was pursued in the public interest — whether the fact that the respondent was acting in its own commercial interests was relevant.
R B Enright and N M de Wit for Appellant SC 82/2013
M S R Palmer and K R M Littlejohn for Appellant SC 84/2013
D A Nolan and J D K Gardner-Hopkins for New Zealand King Salmon Company Ltd
S J Ritchie for Fourth Respondents
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A In SC 82/2013:
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(a) By consent, the Minister of Conservation and the Director General of Primary Industries must each pay the Environmental Defence Society Inc $5,625 by way of costs.
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(b) The New Zealand King Salmon Company Ltd must pay the Environmental Defence Society Inc $23,650 by way of costs, together with disbursements of $4,764.
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B In SC 84/2013:
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(a) There is no order for costs. Costs will lie where they fall.
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| Para No | |
| Elias CJ and William Young J | [1] |
| McGrath, Glazebrook and Arnold JJ | [31] |
(Given by Elias CJ)
The Environmental Defence Society in SC 82/2013 and The New Zealand King Salmon Co Ltd in SC 84/2013 apply pursuant to leave reserved in the judgment of this Court of 17 April 2014 for costs in the respective appeals in which they were successful. 1
EDS, a public interest litigant, was successful as appellant in SC 82/2013 in which King Salmon, an applicant for resource consents to set up salmon farms in the Marlborough Sounds, the Minister of Conservation and the Director-General of the Ministry for Primary Industries were respondents. It seeks to recover $46,550 plus disbursements in total against all respondents. EDS has reached agreement with the two Crown respondents that they will pay costs and disbursements of $11,250. The Court is asked to make consent orders apportioning this amount equally between the Minister of Conservation and the Director-General of the Ministry for Primary Industries. With that deduction, the amount of costs EDS seeks from King Salmon is $35,300 together with disbursements. EDS has advised the Court that it has to date incurred legal costs of $20,000 plus disbursements but says it has entered into “a contingency arrangement” which “allows for a further fee to be rendered in the event of a successful outcome on the appeal and costs”.
King Salmon was successful as respondent in the appeal brought by Sustain Our Sounds Inc, another public interest litigant, in SC 84/2013. King Salmon does not seek costs against SOS unless costs are awarded against it in favour of EDS in SC 82/2013. If costs are awarded to EDS, however, King Salmon contends that costs should also follow the event in the unsuccessful SOS appeal. SOS argues that it should not be ordered to pay costs and disputes the quantum claimed.
Rule 44(1) of the Supreme Court Rules 2004 permits the Court to make “any orders that seem just concerning the whole or any part of the costs and disbursements of a civil appeal or an application to bring such an appeal”. In seeking costs from New Zealand King Salmon, EDS invokes the principle, applied in this Court in Prebble v Awatere Huata (No 2), that a reasonable contribution to costs will normally be awarded to a successful party to an appeal to the Supreme Court. 2 That is the principle also relied upon by King Salmon in seeking costs from SOS in the appeal in which it was successful, with the indication that it does not seek such costs if costs are to lie where they fall in the EDS appeal.
The Supreme Court in Prebble adopted the approach which had been followed in New Zealand courts before its establishment that costs generally follow the event. 3 In that case, it was argued that no award of costs should be made due to the public interest in the interpretation and application of the legislation at issue. 4 The Court took the view that, in fulfilling its obligation under r 44 to make such orders as are just, it would seldom be just to require a successful party to bear the full costs of its case. 5 It also rejected the suggestion that distinctions should be drawn for the purposes of costs in the Supreme Court according to the type of case, and declined to make distinctions between “public law and family cases and commercial litigation”. 6 The Court pointed out that, in the Supreme Court, “[a]ll cases, because of the nature of the leave criteria, are likely to raise substantial issues of principle” and their resolution by the Court may therefore be expected to have public benefit. 7
The Court in Prebble also adhered to the long-standing practice of the New Zealand courts that costs awarded should be a reasonable contribution to the costs of a successful party, rejecting the argument there advanced that the Supreme Court should adopt the practice of the Privy Council in awarding costs
The presumptive flat rate indicated in Prebble resulted in costs of $12,500 for a one-day hearing with one counsel and $15,000 where there were two counsel, together with reasonable disbursements. 10 Although the award made was explained by reference to this indicative register, 11 it is clear that it was intended as a general guide only. Subsequently, in more recent cases, the Court has applied a flat rate of $25,000 for a one-day hearing in cases where the parties have not sought to be heard on the question of costs. 12
In Prebble, it was indicated that unless counsel said at the hearing that they wished the question of costs to be reserved for submission, the Court would in general proceed to award costs on the flat rate described without further reference to the parties. 13 The general approach described in Prebble has been followed ever since, with the more recent lift in the indicative daily rate already mentioned.
In a small number of cases, the Court has declined to make any award of costs, on the basis that it considered it just to leave costs where they fell in the particular circumstances, such as where both parties had some success in the
In West Coast ENT, the Court declined to order costs on the application of the successful respondent in an appeal under the Resource Management Act 1991 against an unsuccessful public interest appellant. In its costs judgment, the Court referred to its earlier decision in Prebble and to the decision of the Privy Council in New Zealand Maori Council v Attorney-General. 16
In New Zealand Maori Council, the Privy Council declined to order costs against appellants who were “not bringing the proceedings out of any motive of personal gain” but to protect an aspect of New Zealand heritage and in circumstances where the different views expressed in the Court of Appeal had given rise to “an undesirable lack of clarity … in an important area of the law”. 17 In West Coast ENT, the Court considered that the decision in New Zealand Maori Council was more closely in point than Prebble, 18 which, although concerned with a point of public law of great importance, was litigation in the personal interest of the unsuccessful respondent. Even so, in West Coast ENT, the fact that the unsuccessful appellant was not acting for personal benefit was not itself determinative. Important to the Court's decision not to award costs in favour of the successful respondent was the circumstance that the proceedings in the Environment Court (in respect of which the issue in the Supreme Court was “very much a subset”) “were plainly closely balanced”. 19 The underlying issue of law was “difficult and its resolution had a significance which went well beyond the present case”. 20
The fact that a litigant may represent an aspect of the public interest and have no prospect of personal advantage in litigation is, then, not sufficient basis to exclude the...
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Te Whare O Te Kaitiaka Ngahere Incorporated Society v West Coast Regional Council
...1 NZLR 746 (CA) at [750]. 22 District Court Rules, 4.6.3(c) 23 Environmental Defence Soc Inc v The New Zealand King Salmon Company Ltd [2014] NZSC 167. 24 At [12], [33] and 25 At [12] and [24]. 26 At [44]–[45]. 27 At [45]. 28 Peninsula Watchdog Group (Inc) v Coeur Gold New Zealand Ltd, abo......