Petromont Fishing Company Limited v Ministry of Primary Industries [2018] NZHC 3147 (30 November 2018)

Last Updated: 11 December 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-404-3064 [2018] NZHC 3147

IN THE MATTER OF	an application for judicial review
UNDER	Judicial Review Procedure Act 2016
BETWEEN	PETROMONT FISHING COMPANY LIMITED Applicant
AND	THE MINISTRY OF PRIMARY INDUSTRIES Respondent

Hearing:	On the papers
Counsel	D W Grove for Applicant N C Anderson and E J Couper for Respondent
Judgment:	30 November 2018

JUDGMENT OF CLARK J (COSTS)

Introduction

[1] In a judgment delivered on 16 April 2018, I dismissed the applicant’s application for judicial review.¹

[2] In relation to costs I observed:

[114] The respondent is entitled to costs. If the parties are unable to agree costs they may file written submissions not exceeding six pages. I make this final observation bearing on costs. Although the applicant has not succeeded

1. Petromont Fishing Co Ltd v Ministry of Primary Industries [2018] NZHC 676, [2018] NZAR 740; affirmed on appeal: Petromont Fishing Co Ltd v Ministry of Primary Industries [2018] NZCA 422.

PETROMONT FISHING COMPANY LIMITED v THE MINISTRY OF PRIMARY INDUSTRIES [2018] NZHC 3147 [30 November 2018]

in any of its grounds of review that part of the respondent’s case which relied on s 329 as the source of the power to conduct an internal review was found to be flawed.

[3] The respondent has applied for costs and I have now received submissions from both parties.

Parties’ positions

[4] The respondent’s position is that it is entitled to costs on a 2B basis but reduced by one third to reflect the erroneous position it took with regard to the legal issue concerning the source of power under which an internal review of permitting decisions could be conducted. The respondent seeks costs and disbursements of $18,196.64.

[5] The applicant submits an appropriate costs order is $8,949.66. The applicant’s position can be summarised as follows:

(a) The respondent’s claim for costs in respect of an interlocutory application is disputed.

(b) There should be a general reduction in the time allocations for a number of categories claimed because the proceeding was not a full trial but a judicial review application dealt with on the papers.

(c) A 50 per cent discount should be applied given the importance of the jurisdictional issue, that the issue was novel and that contrary to the respondent’s position, the judgment concluded compensation is payable and a decision is to be made in due course.

Assessment

[6] I am satisfied costs are appropriately claimed for transfer of the proceeding from the High Court Registry at Tāmaki Makaurau to the High Court Registry at Te Whanganui-a-Tara. The application was filed on 2 February 2017 along with an affidavit in support. A order was made transferring the proceedings by the Deputy Registrar, on 22 March 2017. The fact the order was made by consent does not disentitle the respondent to the costs of making its successful application.
[7] The proceeding was classified as category 2B for costs purposes by Peters J on 8 March 2017. I do not accept the applicant’s contention that several of the respondent’s claims should be reduced on the basis this was a judicial review hearing and not a trial. As to the submission that it was a judicial review application “dealt with on the papers” if that is intended to be a reference to the fact that there was only affidavit and viva voce evidence and therefore costs should be reduced, the proposition is unprincipled. There is no basis upon which the reasonable time allocations for the steps in the proceeding should be reduced and, as the respondent submits, effectively recategorising the proceeding is contrary to the parties’ agreement to the classification at the case management conference.

[8] I am satisfied a 30 per cent reduction in the costs the respondent claims is both appropriate and sufficient to reflect the flaw in the argument to which I alluded at [114] of the judgment. Ultimately, the respondent was successful and as the successful party it is entitled to its costs. A reduction in those costs by 30 per cent to reflect one erroneous aspect of its case is sufficient.

Result

[9] The Ministry is entitled to the $18,196.64 in costs and disbursements sought.









Karen Clark J

Solicitors:

Foy & Halse, Auckland for Applicant

Crown Law, Wellington for Respondent