The Environment Court's jurisdiction to award costs
Under s 285 RMA the Environment Court has the power to order any party to a proceeding to pay costs to any other party in the proceeding or to the Crown (in respect of the Court's expenses). (Note that this means that non parties, such as the individual members of an incorporated society, cannot be ordered to pay costs and cannot receive them. Ngatiwhai Trust Board v Whangarei DC A016/96 (PT).
The court can order costs in any case where a party has appeared before it, even where the party has not taken an active part in the proceeding. Chisholm v Timaru DC [1994] NZRMA 66
The Court can order an objector to pay costs even where there was no jurisdiction to hear the substantive case. See Bitossi v Kapiti Coast DC W004/93 (PT)\
Court practice is not rigid regarding awards of costs, the court has discretion to determine what the award of costs should be and must determine what is reasonable in the circumstances.
Where a party fails to go ahead with an arranged hearing or does not give sufficient notice that they have abandoned the proceeding the Court can order them to pay costs to the Crown.
The basis for awards of costs is that the unsuccessful party should contribute to the reasonably costs of the successful party. Awards of costs are therefore not a penalty for failure against the losing party, (Foodstuffs (Otago Southland) v Dunedin CC) or a substitute for damages to compensate for delay or other losses not directly related to the proceeding. However costs can be awarded to compensate a party for having to fight proceedings which should never have been brought, or which were presented in a way which caused unnecessary cost. Parata v Northland RCA041/00
In 2006 the Environment Court issued a Consolidated Practice Note on awards of costs, which provide guidance on how the Court should exercise its discretion. However, its provisions are only a guide and should not create legitimate expectations amongst the parties (Canterbury RC v Waimakariri DC [2004] NZRMA 289). Many other cases provide guidance on how the court will award costs eg Minhinnick v Watercare Services Ltd EnvC A139/98.
The Environment Court, should, as a matter of course, address the issue of costs during the proceeding, whether or not the parties raise the issue. (See Paihia and District Citizens Association Inc v Northland RC (1995) 2 ELRNZ 23) In doing so it can:
- State that it will make no order
- Order costs
- Indicate that it is willing to order costs but reserve its decision on the amount
- Reserve the issue of costs without indicating whether order will be made.
If the court reserves the issue of costs it can consider applications by letter from the parties. (Belfield v Thames Coromandel DC EnvC A032/98) However, the court has noted that the parties should make a genuine attempt to settle the issue of costs with the other parties before resorting to the court for an order. (Mahuta v Waikato RC EnvC A091/98)
Where costs are reserved, the parties have 20 working days to make applications for costs, otherwise the delay might justify the dismissal of the application. However this timeframe is only a guide, and the court has jurisdiction to be flexible if the circumstances require. For example it has accepted a delay of four months where the applicant had been trying to settle the issue of costs with the appellant. (Durbridge v Auckland CC EnvC W101/99) On the other hand, it also treated an application made after more than three months as stale. (Antunovich and Papakura DC v Marine Helicopters Ltd EnvC A005/95)
