IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2013-404-5224
[2020] NZHC 3378	

UNDER	the Declaratory Judgments Act 1908	
BETWEEN	TE ARA RANGATŪ O TE IWI O NGATI TE ATA WAIOHUA INCORPORATED
First Plaintiff

RICHARD TE POU MINHINNICK
Second Plaintiff	
AND	THE ATTORNEY-GENERAL OF NEW ZEALAND ON BEHALF OF THE CROWN
First Defendant
……………………………/continued	

Hearing:	On the papers	
Counsel:	JP Kahukiwa for second plaintiff 2013 proceedings and second respondent in 2014 proceedings
SM Kinsler SLK Shaw for first defendant in 2013 proceedings and first respondent in 2014 proceedings
No appearance for first and second applicants in 2014 proceedings or second and third defendants in 2013 proceedings
No appearance for first plaintiff in 2013 proceedings	
Judgment:	17 December 2020	

JUDGMENT OF FITZGERALD J
[As to costs]

This judgment was delivered by me on 17 December 2020 at 3pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar……………………………	Date……………………….……………

Solicitors:	Corban Revell Lawyers, Auckland
Crown Law, Wellington

Te Ara Rangatū O Te Iwi O Ngati Te Ata Waiohua Inc v Attorney-General [2020] NZHC 3378 [17 December 2020]

Defendants continued
NEW ZEALAND STEEL LIMITED
Second Defendant

WAIKATO NORTH HEAD MINING LIMITED
Third Defendant

HERITAGE NEW ZEALAND POUHERE TAONGA
Counterclaim Defendant

CIV-2014-404-1172

UNDER	the Judicature Amendment Act 1972 IN THE MATTER	of the Iron & Steel Industry Act 1959

BETWEEN	NEW ZEALAND STEEL MINING LIMITED
First Applicant

NEW ZEALAND STEEL LIMITED
Second Applicant

AND	THE ATTORNEY-GENERAL
First Respondent

RICHARD TE POU MINHINNICK
Second Respondent (Counterclaim Plaintiff)

Introduction

[1]	On 31 July 2020, I delivered a substantive judgment in these two sets of proceedings, which have been case managed together.1 I will refer to CIV-2013-404- 5224 as the “2013 proceedings”. For clarity, proceedings CIV-2014-404-1172 were actually commenced in 1990, and I will therefore refer to them as the “1990 proceedings”.

[2]	My substantive judgment represented the culmination, at least in this Court, of litigation between the parties which has spanned some 30 years. The plaintiffs’ claims relate to the Crown’s acquisition of ancestral Ngāti Te Ata land known as “Maioro” on the Āwhitu Peninsula, and traverse events dating back some 150 years.

[3]	I dismissed the plaintiffs’ claims. The second plaintiff, Mr Minhinnick, has appealed to the Court of Appeal against my judgment. As that appeal has only been recently filed, it is not yet known when the appeal hearing will take place, nor when the Court of Appeal will deliver its judgment. It is realistic to assume, however, that the hearing and thus delivery of judgment will not occur for some time.

[4]	The Crown, having succeeded in this Court, now seeks orders quantifying the costs of the 1990 and 2013 proceedings. The Crown says that it is “efficient” for me to quantify costs now, having presided over the trial and in light of the likely delay should costs be reserved until the conclusion of the appeal process. I take from this submission that it may be the case that, even if costs are quantified now, there will be agreement between the parties that enforcement of a costs judgment will be stayed pending determination of the appeal. I say nothing further on that, however, given there is no express statement by the Crown to that effect, and if costs are quantified now and the parties cannot agree on enforcement, it would be open to the plaintiffs to apply for a stay of enforcement.

[5]	No costs orders are sought by New Zealand Steel. In addition, the first plaintiff, which is now unrepresented, has not sought to be heard on the question of costs.

1	Te Ara Rangatū o Te Iwi o Ngāti Te Ata Waiohua Inc v Attorney-General [2020] NZHC 1882.

[6]	Mr Minhinnick’s over-arching position is that a costs order should not be made against him at this time. He says that he does not have the resources to engage counsel to review the Crown’s costs claim, which extends over some 30 years of litigation. Mr Minhinnick further says that, given there is unlikely to be any real prejudice to the Crown were a costs order deferred, costs in this Court ought to be reserved pending exhaustion of the appeal process.

Background to this judgment

[7]	It would be futile to try to summarise in this costs judgment the background to and substance of my judgment in these two proceedings. An overview of the claims and the parties’ competing positions can be found at [1] to [41] of my substantive judgment. By way of very brief summary, however, the plaintiffs’ claims related to the original purchase and then confiscation of Ngāti Te Ata ancestral land at Maioro in 1864; the subsequent taking of wāhi tapu (burial grounds) pursuant to public works legislation in the 1930s and 1950s; and claims arising from nearly 30 years of Treaty of Waitangi settlement negotiations.

[8]	A key plank to the plaintiffs’ claims relied on the submission that the Crown owed private law equitable duties (and in particular, a fiduciary duty) to Ngāti Te Ata. Other aspects of the claims were more orthodox administrative law claims, including that the takings of the wāhi tapu were ultra vires the public works legislation at the time. The Treaty settlement negotiations were said to give rise to claims in equity, contract and procedural and/or substantive legitimate expectation. The Crown (and New Zealand Steel) disputed the claims on substantive grounds, and also advanced affirmative defences of limitation, laches/acquiescence and lack of standing.

[9]	After a month-long hearing involving extensive oral and documentary evidence, I dismissed the plaintiffs’ claims. At the conclusion of my judgment, I recorded that the parties were to seek to agree costs and in the event they could not, I made timetable orders for the filing of costs memoranda. The plaintiffs and the Crown have been unable to agree on costs. As noted, New Zealand Steel does not seek any costs orders from this Court.

The parties’ submissions

[10]	The Crown says a costs award should be made in its favour, on the basis it was the successful party overall and costs ought to follow the event in the ordinary way. The proceedings were categorised as category 3 complex defended proceedings by Brown J on 28 May 2014. In large part, the Crown seeks scale costs on a 3B basis. It does, however, seek category C costs for some interlocutory steps, on the basis those steps engaged more than the ordinary time reflected in the High Court Rules cost allocations. The steps for which category 3C is claimed are:

(a)	attendance at an issues conference in April 2015 with senior counsel and witnesses in attendance;

(b)	discovery, which was extensive, and due to its historical complexity, required the assistance of professional historians engaged by both the Crown and the plaintiffs;

(c)	preparation of briefs of evidence, which were also extensive, reflecting the complexity of the claims and the time-period which they spanned; and

(d)	preparation for the hearing, again given the complexity of the legal and factual issues before the Court.

[11]	Counsel for the Crown generally points to the complexity of the proceedings overall, noting my observations in my substantive judgment that “[t]he claims span events over a period of 150 years and give rise to a large number of complex and in some instances, novel, questions of law”.2

[12]	The Crown further submits that increased costs would have been justified, though does not seek increased costs in the particular circumstances of this case. The Crown refers to Venning J’s observations in an earlier judgment in this matter that the proceedings have been characterised throughout by the plaintiffs’ failure to

2	Te Ara Rangatū o Te Iwi o Ngāti Te Ata Waiohua Inc v Attorney-General, above n 1, at [22].

satisfactorily advance their case, and the inevitable wasted costs that were incurred when successive substantive hearings were adjourned at the plaintiffs’ request.3 The Crown also notes that it incurred substantial time preparing expert evidence in response to expert briefs served by the plaintiffs (from Professor Richard Boast QC and Dr Vincent O’Malley) but who were not called by the plaintiffs to give evidence at the trial. The Crown also notes the late and substantial amendments to the pleadings made during the trial, when the plaintiffs had years to finalise their claims.

[13]	Mr Kahukiwa, counsel for Mr Minhinnick, does not dispute that the Crown was the successful party overall and that costs should therefore follow the event in the ordinary way. As noted, however, Mr Minhinnick opposes an order of costs being quantified and made at this time. This is on the basis Mr Minhinnick does not have the resources to engage substantively on the Crown’s claim and there is no real prejudice to the Crown in deferring the quantification costs pending completion of his rights of appeal.

[14]	Mr Minhinnick further submits that the suggestion by the Crown that to quantify costs now is “efficient” is somewhat “make-weight”, given the particular nature of the Crown as a litigant and the resulting lack of prejudice if quantification of costs is deferred. Mr Minhinnick further submits that the Crown ought not to be seen to “punish” any one of its citizens who has extant rights of appeal of the kind that are being pursued.

[15]	Mr Minhinnick further submits that a costs order can be categorised as “strategic litigation”, designed to demotivate him from carrying on his appeal, “acting as a sword of Damocles”. It is submitted on Mr Minhinnick’s behalf that this kind of demotivation should be avoided in the context of rights of appeal given to citizens generally. In this context, Mr Minhinnick submits that rights of appeal must be freely accessible and not deterred, and more so in a case of this nature.

3	Te Ara Rangatū o Te Iwi o Ngāti Te Ata Waiōhua Inc v Attorney-General [2019] NZHC 1205 at [21]–[22].

Costs — discussion

[16]	As is evident from the above, there is no real dispute that on orthodox costs principles, the Crown is the successful party overall and costs ought to follow the event. The real dispute is whether costs should be quantified now, or simply reserved pending the exhaustion of the appeal process.

[17]	I am clear in my view that it is appropriate to quantify costs now, rather than reserving them for what is likely to be a relatively lengthy period of time. The determination of costs in civil proceedings is intended to be predictable and expeditious.4 The costs claim in this case is somewhat complicated by the fact that some of the steps involved occurred decades ago. That highlights, however, that it is undesirable for the quantification of costs in this Court to be left for an even longer period of time. Moreover, successful and unsuccessful parties to any civil litigation before the High Court ought to have certainty in relation to the costs of the underlying proceeding.

[18]	In light of the above, I accept the Crown’s submission that it is efficient to quantify costs now. In that context, I do not say it is “efficient” from the perspective of those matters raised on behalf of Mr Minhinnick and summarised at [14] above. Rather, it is appropriate that I consider and quantify costs while the various steps taken in the proceedings, and particularly the substantive hearing phase (to which a substantial proportion of the costs claimed relate), are relatively fresh in my own mind. It would not be efficient to have to revisit costs in the High Court some years down the track, once full appeal rights have been exhausted.

[19]	I reiterate, however, that the fact a costs award is made now does not say anything about the enforcement of that award. That will be a matter for discussion between the parties, given Mr Minhinnick’s extant appeal. It also says nothing about this Court’s approach were there to be an application for a stay of enforcement of a costs award.

4	High Court Rules 2016, r 14.2(1)(g).

[20]	It is also appropriate that I respond to some of the other submissions made on Mr Minhinnick’s behalf (and summarised at [14] and [15] above). Fixing costs in the High Court while an appeal is pending does not amount to “punishment” of citizens who have extant rights of appeal. Rather, it is the ordinary incident of engaging in civil litigation in the High Court.

[21]	I also do not consider that an application for a costs order can itself be characterised as “strategic”, designed to demotivate Mr Minhinnick from carrying on his appeal. Again, applying for, quantifying and the making of a costs award at the conclusion of a High Court proceeding is the usual next step after determination of the substantive claims.

[22]	I will therefore quantify the costs of the 1990 and 2013 proceedings now.

Costs — quantification

[23]	Counsel for the Crown have attached to their costs memorandum various schedules summarising the costs sought. A summary of the overall costs sought across both the 1990 and 2013 proceedings is annexed as Schedule A to this judgment.

[24]	As can be seen, the majority of costs relate to the period 1 July 2015 to 31 July 2019. This reflects that, while there was a flurry of activity in 1990, those proceedings then lay dormant until 2014.5

[25]	In a judgment delivered on 4 July 2014, Fogarty J granted New Zealand Steel leave to discontinue the 1990 proceedings and to be released from undertakings it had given to the Crown.6 That then left the plaintiffs’ counterclaim against the Crown in the 1990 proceedings as the only extant aspect of those proceedings, which was then overtaken by the plaintiffs’ claims against the Crown in the 2013 proceedings. There were then intensive periods of work in 2016 and 2018 in the lead up to successive substantive hearings (which were vacated both at the plaintiffs’ request), and then again in the lead up to the hearing before me in July of last year.

5	See [25] to [35] of my substantive judgment for a more detailed discussion of the course of the 1990 proceedings.
6	New Zealand Steel Mining Ltd v Butcher [2014] NZHC 1552.

[26]	I have reviewed the scale costs calculations set out in the schedules attached to the Crown’s memorandum. I have also assessed the steps taken against the underlying file to satisfy myself that those steps were actually taken and thus the scale costs sought are appropriately awarded. Having noted some discrepancies, I sought further submissions from counsel for the Crown on some of the costs claimed. Counsel have since provided further information and updated costs schedules responding to the queries raised.

[27]	Having reviewed the materials filed, I have concluded that it is appropriate to grant costs for the steps that have been taken by the Crown as set out in the (updated) cost schedules, and by reference to the allocated days or part days pursuant to the cost schedules in force at the time each step was taken.

[28]	I am also satisfied it is appropriate to award costs on a band C basis for those steps set out at [10] above. Given the nature and complexity of these proceedings, the cost of preparing briefs of evidence, lists of issues, the authorities and common bundles, and preparation for the hearing generally, will no doubt have exceeded (by some margin) the scale cost allowance. I also agree that the five-day allowance for a plaintiff’s preparation of the common bundle on a band C basis is properly claimable by the Crown. Given the particular nature of the proceedings and the Crown’s position in them, it undertook the “heavy lifting” of preparing the (significant) common bundle of documents, in both electronic and hard copy form. Given the sheer size of the bundle, that was no doubt an extensive undertaking.

[29]	Disbursements are claimed in the sum of $41,166. Again, in the context of these significant proceedings, that is a relatively modest amount, at least by comparison with the level of disbursements often claimed in High Court litigation. The most significant items are photocopying of the common bundle, and travel and accommodation for counsel for the month-long substantive hearing. Such costs, which I am satisfied have been reasonably incurred, ought to be recovered as disbursements.

Result

[30]	There is accordingly a costs award against the plaintiffs in favour of the Crown for those costs set out in Schedule A to this judgment. That award is against the first plaintiff in respect of the costs attaching to steps taken in the proceeding up until the time of the second plaintiff’s joinder as a party to the proceeding, and on a joint and several basis in relation to the costs of those steps taken following the second plaintiff’s joinder.

[31]	Leave is reserved for any party to seek any further orders that may be necessary in relation to the above costs award and its allocation.

Fitzgerald J

Schedule A

Costs incurred prior to 2013	
	$1,150.00	

Combined costs on category 3 basis	
Costs incurred between 11 October 2013 to 30 June 2015	
	$54,684.00	
Costs incurred between 1 July 2015 to 31 July 2019	
	$160,050.00	
Total	$214,734.00	

Interlocutories where costs fixed on 2B basis	
Costs incurred between 1 July 2015 to 31 July 2019	
Joinder issue (September 2018)	$8,697.00	
Adjournment of trial (May 2019)	$2,899.00	
Total	$11,596.00	

Total costs	
	$227,480.00	

Total disbursements	
	$41,166.00	

Total costs and disbursements	
	$268,646.00