Application for a prospective costs order against the Attorney-General – Senior Courts Act 2016, s 79 – jurisdiction to make prospective costs orders in public interest cases – requirement that payment of costs in advance of the outcome is necessary in the interests of justice – considerations to determine the necessity of a prospective costs order
Whakatōhea Kotahitanga Waka (Edwards) v Attorney-General [2024] NZSC 119
Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū o Te Whakatōhea (Te Kāhui) is a group of four hapū who, along with several other appellants, are bringing appeals to the Supreme Court concerning recognition of customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011.
The appeals (to be heard over eight days in November) are the first time the Supreme Court will consider the interpretation and application of the Act.
The Crown was only an interested party in the lower Courts but has now appealed in its own right, challenging the Court of Appeal’s approach to customary marine title and protected customary rights.
In the lower courts, the appellants received full funding from Te Arawhiti | The Office for Māori Crown Relations. The funding arrangements changed after the Supreme Court fixture was allocated in July 2024. Te Arawhiti advised all applicants that the Crown’s contribution to court costs would be capped at $30,000 for applicants pursuing appeals.
Following that advice, Te Kāhui applied to the Supreme Court for a prospective costs order, directing the Attorney-General to pay costs in advance of the appeal.
The Supreme Court observed that the making of a prospective costs order in this type of public-interest case, where advance costs, rather than a protective order, are sought in advance will be exceptional and will depend on the necessity for such an order being made in the interests of justice.
Applicable principles: Senior Courts Act 2016, s 79 – does the case raise an issue of very significant general or public importance? (yes) – does the applicant have a seriously arguable case? (yes) – is the applicant genuinely impecunious? (yes) – is an order necessary to avert injustice? (yes) – are there any reasonably alternatives to the making of the order? (no)
Held: The application for a prospective costs order is granted. Advance costs should be no more than is necessary to avert injustice. The Attorney-General must pay the applicants prospective costs of $97,500 collectively (and costs of $7,500 on the application).
Note: It was noted that other parties had supported Te Kāhui’s application but had not made applications of their own. The court noted that any parties now seeking prospective costs orders should address their concerns first to Crown counsel and that where the threshold is met, consent orders are to be encouraged.
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