Horticulture New Zealand Federated Farmers of New Zealand Inc. v Manawatu–Wanganui Regional Council v Wellington Fish & Game Council v Andrew Day

JurisdictionNew Zealand
CourtHigh Court
JudgeKÓs
Judgment Date30 Oct 2013
Neutral Citation[2013] NZHC 2853
Docket NumberCIV 2012-485-2004 CIV 2013-485-165 CIV 2013-454-50 CIV 2013-454-253 CIV 2013-454-368

[2013] NZHC 2853

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Court:

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

UNDER the Resource Management Act 1991

Between
Horticulture New Zealand Federated Farmers of New Zealand Inc
Appellants
and
Manawatu–Wanganui Regional Council
Respondent

And

Wellington Fish & Game Council
council
Andrew Day
Interested parties

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.

The issue was: whether the public interest element justified no costs or a reduced award of costs to the s301 party.

Held: It was accepted that the Court had jurisdiction to grant costs in favour of a s301 party. As Fish & Game was a party before the Environment Court (EC), it was entitled as of right to participate in the appeal. Its position was to be contrasted with that of a mere intervener where permission to intervene might be conditional on non-entitlement to costs. Liability for costs to s301 parties was therefore a risk inherent in mounting an appeal of this kind.

The public interest point could not be taken to the extent the appellants suggested of refusing to award costs, and neither was a discount appropriate on that ground. Both appellants were substantial primary production sector group representatives. There was no risk of costs having a chilling effect on the appropriate testing of Council and EC decisions on a regional plan and regional policy statement. Secondly, the appeals were motivated, to a significant degree, by the objective of reducing member compliance costs for both appellants. Both appellants’ members had, therefore, a pecuniary interest in the outcome.

There was no significant duplication or unnecessary compilation of costs by the Fish & Game which would justify reducing costs. Its submissions were helpful and focused and the respondent Council deferred it on particular issues raised by the appellants.

Category 2 costs, which was the assigned categorisation the parties went into the appeal hearing on, were appropriate. The principle of predictability of costs required adherence to initial categorisation, except in exceptional circumstances. These circumstances were not exceptional.

However the arguments in this case had more than the normal degree of complexity. The arguments advanced by Federated Farmers had a transient character as they came to be shifted, restructured and in some instances abandoned altogether. Therefore it was appropriate to award Fish & Game band C costs for steps relating to preparation of submissions and the hearing itself (and band B for steps prior to that). Although Federated Farmers had modest success on a minor aspect of the case, it should meet costs on the basis of equality with Horticulture NZ.

JUDGMENT OF THE HON JUSTICE KÓs

(Costs)
1

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.

2

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.

3

The respondent Council does not seek costs.

4

The Wellington Fish & Game Council, a s 301 party under the Resource Management Act 1991, seeks costs. As a matter...

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