New Zealand Airline Pilots' Association Industrial Union of Workers Incorporated v Director of Civil Aviation [2016] NZHC 2409 (10 October 2016)

Last Updated: 14 October 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-395 [2016] NZHC 2409

UNDER	the Judicature Amendment Act 1972
AND	a claim for declarations by this Court
IN THE MATTER	of a decision regarding the interpretation of Part 139 of the Civil Aviation Rules
BETWEEN	NEW ZEALAND AIRLINE PILOTSʼ ASSOCIATION INDUSTRIAL UNION OF WORKERS INCORPORATED Applicant
AND	DIRECTOR OF CIVIL AVIATION First Respondent
AND	WELLINGTON INTERNATIONAL AIRPORT LIMITED Second Respondent

On the papers
Counsel:	H B Rennie QC, E M Geddis and R McCabe for Applicant F M R Cooke QC, M S Smith for First Respondent V L Heine and S E Quilliam-Mayne for Second Respondent
Judgment:	10 October 2016

_{JUDGMENT (COSTS) OF CLARK J}

Background

[1] The New Zealand Airline Pilots’ Association (NZALPA) which represents some 2,200 pilots’ and air traffic controllers challenged a determination reached by the Director of Civil Aviation to the effect that the length of a runway end safety area being proposed by Wellington International Airport was acceptable to him. NZALPA contended the Director erred in his interpretation of the applicable law

_{governing the length of the runway end safety area at Wellington Airport.}

NEW ZEALAND AIRLINE PILOTSʼ ASSOCIATION INDUSTRIAL UNION OF WORKERS

INCORPORATED v DIRECTOR OF CIVIL AVIATION [2016] NZHC 2409 [10 October 2016]

[2] In a judgment delivered on 6 July 2016 the application for judicial review was dismissed.¹ NZALPA has appealed. The appeal has been fast tracked and is set down for hearing on 20 October 2016.

[3] The respondents seek costs and disbursements on a 2B basis. The judgment of 6 July 2016 invited memoranda if the parties could not agree costs. All parties have now filed memoranda.

Extant appeal – a barrier to costs determination?

[4] NZALPA proposed that no order be made until the appeal has been determined. For two principal reasons I have decided that the proper course is to determine costs notwithstanding the appeal and its imminent hearing.

(a) The question of costs remains an issue which is outstanding in the High Court. I do not see that an extant appeal should stand in the way of my determining costs in the usual way. I note that Mander J took a similar approach in McArthur Ridge Investments Ltd v Schulz.²

(b) Given the proximity of the hearing of the appeal it is unlikely that a costs determination will present practical difficulties for the parties (in terms of steps to enforce an award). In any event that is not a matter before me. What is important, I think, is that the parties should have my costs determination in advance of the appeal so they have the opportunity to bring to the Court of Appeal’s attention any issues arising out of the determination.

[5] Nor, for the following reasons, have I considered it necessary to hear argument on the matter of costs as NZALPA requests.

¹ New Zealand Airline Pilots’ Association Industrial Union of Workers Inc v Director of Civil

_{Aviation [2016] NZHC 1528.}

² McArthur Ridge Investments Ltd v Schulz [2015] NZHC 600.

(a) Ultimately, the two memoranda filed on behalf of NZALPA speak to the arguments raised by the respondents in their respective memoranda.

(b) As I shall shortly elaborate I accept there is a public interest component in NZALPA’s proceeding. I need no further persuasion on the point. And neither of the respondents contended for a hearing in which to advance their contrary positions.

(c) NZALPA does not dispute the calculation of costs submitted on behalf of the second respondent.³ It disputes that costs are payable because, it is said, the proceeding is brought in the public interest.

[6] I turn now to the question of whether this proceeding is properly regarded as being brought in the public interest.

Proceeding brought in the public interest?

[7] Rule 14.7 provides:

14.7 Refusal of, or reduction in, costs

Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

...

(e) the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding;

...

[8] Mr Cooke QC submitted, in reliance on English authority, that exceptional circumstances are required for departure from the ordinary rule that costs follow the

_event.⁴ _{Mr Cooke identified Friends of Houghton Valley Inc v Wellington City}

³ That is recorded in the first memorandum of counsel for NZALPA dated 12 September 2016 following the memorandum of counsel for the second respondent filed on 5 September 2016. The memorandum of counsel for the first respondent was filed on 15 September 2016.

⁴ R v Lord Chancellor, ex parte Child Poverty Action Group [1998] EWHC Admin 151; [1999] 1 WLR 347 (QB);

R (Smeaton) v Secretary of State for Health (No 2) [2002] EWHC 610 (Admin), [2002] 2 FLR

146.

Council as a recent example of a costs award against an unsuccessful applicant for judicial review despite the applicant’s assertion the application had been brought in the public interest.⁵ Brown J considered the applicant’s primary aim had been to protect the property interests of a group of private individuals. It was also a single- issue society.

[9] Mr Rennie QC submitted that recourse to English authority is unnecessary. In New Zealand the courts will have regard to whether:⁶

(a) the applicant is a responsible interest group;

(b) the applicant will derive any benefit from the outcome and the nature of that benefit;

(c) the applicant has raised legitimate arguments regarding compliance with the law by government powers; and

(d) the proceedings were in the broader public interest or part of a single- issue campaign.

[10] I have also had regard to the decision of Heath J in New Health New Zealand Inc v South Taranaki District Council in which authority relevant to the application of r 14.7(e) was cited.⁷ Heath J took the view that little was to be gained by considering the facts of different cases and preferred to determine whether r 14.7(e) should apply to the case before him.

[11] Similarly, I have considered the particular context in which NZALPA brought this proceeding, the relief which it sought and its conduct of the proceeding. I am persuaded that this is an appropriate case in which to exercise my discretion to make

_{a reduced award of costs.}

⁵ _{Friends of Houghton Valley Inc v Wellington City Council [2016] NZHC 1122.}

⁶ Citing G Taylor Judicial Review: A New Zealand Perspective (3rd ed, LexisNexis, Wellington,

_{2014) at [8.24].}

⁷ New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 993, (2014)

[2014] NZHC 993; 21 PRNZ 766.

[12] The identity of a plaintiff or applicant is sometimes indicative of its public interest standing. But in deciding whether this particular litigation was brought in the public interest and whether therefore I should depart from the prescribed approach which is that costs follow the event I do not find it particularly helpful to consider NZALPA’s identity. NZALPA is a self-described internationally affiliated professional association and trade union. Its members have an interest in aviation safety but it is not a unique interest. There is a public interest in aviation safety and consequently in the proper interpretation and application of particular Civil Aviation Rules. NZALPA has instituted litigation over the years for a range of purposes including the self-interest of its members. What must be determinative of the issue I am deciding is the nature of the immediate litigation rather than the nature of the body instituting it. In considering the nature of the litigation I do not think it is necessary that the party bringing it acts from pure altruism. What will be important is whether the subject matter impacts on significant public interests and therefore interests beyond those of the applicant.

[13] The application for a declaration as to the meaning of the term “practicable” in Appendix A.1 of Part 139 of the Civil Aviation Rules is properly regarded as being brought in the public interest.

(a) The term is ubiquitous in the Civil Aviation Rules. (Appendix I to the judgment of 6 July provides examples of its use in the Rules.) The evidence of consultation on the rule when it was being made showed that many participants were uncertain as to its meaning. Through the written submissions of counsel the first respondent responsibly acknowledged that, regardless of the outcome, the Court’s determination “was likely to be of considerable assistance to [him] in terms of understanding his functions under the Act and Rules”.

(b) Mr Cooke submitted that the outcome was consistent with the Director’s longstanding position on the interpretation of the Civil Aviation Rules and that the cost of litigation could have been avoided had the applicant accepted the first respondent’s position. I take a different view. That the first respondent’s approach was upheld does

not tell against the application for a declaration being brought in the public interest.

[14] Rule 14.7 requires satisfaction of a further prerequisite for its application. The party opposing costs, in this case NZALPA, must have acted reasonably in the conduct of the proceeding. Neither respondent suggests that it did otherwise and that too is my view.

[15] I decline, however, to refuse costs. The application for a declaration was only a component of the claim. The proceeding also entailed an application for judicial review in which NZALPA sought relief on the grounds of breach of natural justice. While I found that the first respondent had an obligation to consult NZALPA given past assurances by the Authority I also found that there had been no breach of the obligation. A considerable body of evidence was directed to that question and to a further ground of review namely, error of law.

[16] There is nothing in the judicial review component which attracts the application of r 14.7(e). Therefore, I regard this component of the proceeding as being susceptible to an award of costs in the usual way. In reaching that view I have not overlooked that the Director unsuccessfully contested that his decision was amenable to review.

Costs outcome

[17] For the foregoing reasons I consider reduced costs are appropriate and that the applicant must pay to the respondents one half of their entitlement to costs on a

2B basis.

[18] Both respondents have submitted with their memoranda their calculations of costs and disbursements on a 2B basis.

(a) The first respondent seeks an allowance for second counsel. I

consider that is appropriate. Accordingly, the first respondent is

entitled to costs in the sum of $11,895.50 being half the amount claimed.

(b) The second respondent’s calculation of costs includes $8,160.00 being a disbursement for an expert witness, Mr Dennis Hoskin. I do not allow that disbursement as Mr Hoskin’s report was primarily directed to the matters which he considered should be addressed when considering the issue of the length of the runway end safety area including the differences between ICAO standards and recommendations. His evidence was relevant to that component of the litigation which I have determined was brought in the public interest and in respect of which the applicant is not ordered to pay costs. Consequently, the second respondent is entitled to costs in the sum of $13,378.50 being half the amount claimed after my deduction of both the witness disbursement and a sum for second counsel.

Order

[19] The applicant is to pay to the first and second respondents the amount of costs to which they are each entitled as set out in paragraphs [18](a) and (b) above.

Karen Clark J