Horticulture New Zealand Federated Farmers of New Zealand Inc. v Manawatu–Wanganui Regional Council v Wellington Fish & Game Council v Andrew Day
| Jurisdiction | New Zealand |
| Judge | KÓs |
| Judgment Date | 30 October 2013 |
| Neutral Citation | [2013] NZHC 2853 |
| Docket Number | CIV 2012-485-2004 CIV 2013-485-165 CIV 2013-454-50 CIV 2013-454-253 CIV 2013-454-368 |
| Court | High Court |
| Date | 30 October 2013 |
UNDER the Resource Management Act 1991
And
[2013] NZHC 2853
Kos J
CIV 2012-485-2004
CIV 2012-454-654
CIV 2013-485-165
CIV 2013-454-50
CIV 2013-454-253
CIV 2013-454-368
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
Costs decision following an unsuccessful appeal on provisions of the regional plan — party under s301 Resource Management Act 1991 (Right to appear and be heard on appeal) sought costs against appellant organisations — respondent Council did not seek costs — appellants claimed they had pursued appeal on public interest ground — provisions of plan would result in increased compliance costs for appellants’ members — whether costs should be refused or reduced on public interest grounds.
JUDGMENT OF THE HON JUSTICE KÓs
I see no reason in this case why costs should not follow the event. The “event” was that the first appellant did not succeed in the appeal at all, and the second appellant succeeded only in one very minor respect.
In saying this I express no criticism of the appellants, and the appeals they brought. They exercised their constitutional rights to appeal perfectly responsibly. They complied with directions made by the Court. If the appeals were unsuccessful de jure, de facto they may have achieved some gains as a result of the position taken formally by the respondent Council prior to, and during, the hearing. But the concomitant of failure de jure is liability to pay costs.
The respondent Council does not seek costs.
The Wellington Fish & Game Council, a s 301 party under the Resource Management Act 1991, seeks costs. As a matter of jurisdiction, the appellants accept that the Court has jurisdiction to grant costs in favour of a s 301 party. That is a proper concession. The Wellington Fish & Game Council was a party before the Environment Court. It was entitled as of right to participate in the present appeal, under s 301. Its position is, therefore, to be contrasted with that of a mere intervener in an appeal, where permission to intervene may be conditional on non-entitlement to costs. 1
Liability for costs to s 301 parties is therefore a risk inherent in mounting an appeal of this kind, just as it would be if those parties were, formally, respondents to the appeal. The High Court, however, retains a discretion to ensure that the level of costs payable does not get out of hand. Costs awards seek to ensure that parties with common interests cooperate, that arguments are not needlessly duplicated and that costs are not unnecessarily compiled.
Both appellants stressed that this proceeding involved matters in the public interest. It was submitted on that basis that could justify refusing to award costs, or a reduced sum only: Coro Main Street (Incorporated) v Thames-Coromandel District Council. 2 In that case a community organisation, unsuccessful in judicial review proceedings against the Council, received a 10 per cent discount from costs otherwise payable, recognising the public interest nature of the proceedings and the
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