Rongotai Investments Ltd v Land Valuation Tribunal

JurisdictionNew Zealand
CourtHigh Court
JudgeCooke J
Judgment Date08 April 2020
Neutral Citation[2020] NZHC 730
Docket NumberCIV-2019-485-662
Date08 April 2020

[2020] NZHC 730

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Cooke J

CIV-2019-485-662

IN THE MATTER of the application for judicial review of a Land Valuation Tribunal hearing in respect of objections under the Rating Valuations Act 1998 and the Land Valuation Proceedings Act 1948

UNDER THE Judicial Review Procedure Act 2016

Between
Rongotai Investments Limited and Rongotai Estates Limited
Applicants
and
Land Valuation Tribunal
First Respondent

And

2468 Limited
Second Respondent

And

Bunnings Limited
Third Respondent

And

Lyall Bay Properties Limited
Fourth Respondent

And

Wellington International Airport Ltd
Fifth Respondent

And

Wellington City Council
Sixth Respondent

And

Attorney-General
Seventh Respondent

And

NZ Cash Flow Control Limited
Eighth Respondent
Appearances:

S Mills QC and M R Wolff for Applicants

No appearance for the First Respondent

K P Sullivan for the Second, Fifth and Eighth Respondents

S V McKechnie and J R Meager for the Third Respondent

No appearance for the Fourth Respondent

No appearance for the Sixth Respondent

D Jones for the Seventh Respondent

Civil Procedure — application for costs by the respondents — whether two costs awards should be given or a single costs award to be shared — High Court Rules 2016

The issue was whether two costs awards should be given or a single costs award to be shared.

The Court held that two awards of costs should be made. The respondents who opposed the interim orders sought by Rongotai had significant interests at stake. The orders sought were to prevent the Tribunal continuing with the scheduled hearings which would have involved significant disruption to them. Each respondent had also needed to carefully consider their position given that the unorthodox ways in which the Tribunal had proceeded. That gave rise to a risk that this Court may order that the Tribunal's decisions need to be set aside because of the grounds of apparent bias and pre-determination raised.

While it may be true that Rongotai's criticisms that were the subject matter of the application involved criticisms of the Tribunal rather than claims against any of the other respondents, the Court only awarded costs against judicial officers in rare circumstances. Costs were awarded for the costs of the proceedings, and the respondents who sought costs did so in relation to their expenditure in actively opposing the orders sought.

Bunnings had much the same interest as the three respondents who were jointly represented. It may have wished to be separately represented, in part because some of the unorthodox steps taken by the Tribunal were associated with the stance taken by Bunnings before the Tribunal. But that did not mean that Bunnings should necessarily be entitled to an additional costs award. It was also relevant that the application for interim orders was made with urgency, thereby reducing the prospect of the respondents being able to organise themselves to present a single opposition, even if they could agree on a joint stance on the underlying points that Rongotai was advancing.

Each of the claims for costs should be allowed as claimed.

JUDGMENT OF Cooke J

(Costs)

1

The respondents who successfully opposed the applicants' application for interim orders now seek costs. In my judgment dismissing that application I set out a preliminary view that the opposing respondents were entitled to costs on a 2B basis, but whether that should be two costs awards, or a single costs award to be shared was a matter to be addressed. 1

2

The third respondent (“Bunnings”) and the parties represented by Mr Sullivan (the second, fifth and eighth respondents) each now seeks costs on a 2B basis. The applicants (“Rongotai”) oppose arguing that there should either be no costs award, or that more limited costs should be awarded. It is accepted that any costs awarded should be calculated on a 2B basis.

3

The memorandum of counsel for Rongotai raises questions of principle concerning the award of costs in relation to judicial review claims. In the circumstances I will address those principles first, and then determine the appropriate outcome in this case.

Costs in judicial review
4

Claims for judicial review can raise distinct costs issues that may not be expressly addressed by the detailed costs rules in Part 14 of the High Court Rules

2016. Given that there is potentially a greater need for the application of the discretion under r 14.1 when determining the appropriate costs outcome. The principles set out in r 14.2, and the balance of the rules set out in Subpart 1 of Part 14, nevertheless provide the starting point for the assessment
5

In a classical judicial review challenge to the exercise of a statutory power of decision by a governmental body, the active respondent will normally be the decision-maker. 2 But other parties may wish to participate in the proceedings because the challenge affects their interests. They can be involved as named respondents, or participate in other ways such as interested parties. Precisely how they are involved, and whether they are involved as a named respondent, is a matter for judicial determination. 3 Often such parties will be supporting the decision of the decision-maker, although that is not always the case. The Court is often assisted by the participation of such parties, and in any event such parties may have distinct interests that warrant their participation.

6

An issue can emerge for such cases if the judicial review claim is not successful, and all named respondents seek costs. That can be seen as potentially unjust, particularly if an applicant for review faces multiple costs claims, yet would only be entitled to a single award if successful. The right of access to the court to pursue judicial review is a fundamental one, recognised by s 27(2) of the New Zealand Bill of Rights Act 1990. It is features of this kind that have resulted in the practice in England and Wales that usually only one award of costs will be awarded in an unsuccessful claim for judicial review. 4 In New Zealand there is no such well-established practice — it is a matter of applying the discretion in r 14.1. Additional respondents who support a decision-maker can be awarded costs, or receive a partial award of costs, depending on the circumstances.

7

Not all judicial review claims are of this character, however. Some claims may involve challenges to decisions made by bodies exercising judicial, or quasi-judicial functions in underlying proceedings. 5 A judicial review challenge advanced in this context will not usually involve the decision-maker actively defending the decision. The position is analogous to a subsequent appeal of decisions of such tribunals or other bodies to the High Court. 6 The decision-maker does not usually actively defend the decision as this would involve it entering the fray. 7 The parties to the underlying proceedings will be the active respondents for such appeals and judicial review claims. This is reflected in s 9 of the Judicial Review Procedure Act 2016, as all parties to an underlying proceeding are required to be named as respondents. 8 Decision making bodies can nevertheless be permitted to appear and make submissions in such cases when there are issues of principle, such as the interpretation of that body's statute, in issue. These cases are closer in kind to the normal civil proceedings regulated by the detailed rules in Part 14. These principles generally apply notwithstanding the different provisions that regulate the...

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