ALT New Zealand Ltd v Director-General of Health

[2024] NZHC 687

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV- 2023-485-146

[2024] NZHC 687

BETWEEN AND

AND

ALT NEW ZEALAND LTD

First Applicant

VEC LTD
Second Applicant

MYRIAD PHARMACEUTICALS LTD
Third Applicant

AND

DIRECTOR-GENERAL OF HEALTH

Respondent

Hearing:	On the papers
Appearances:	D A Laurenson KC for Applicants H W Ebersohn for Respondent
Judgment:	25 March 2024

JUDGMENT OF CHURCHMAN J

[Costs]

Introduction

[1]    On 24 March 2023, ALT New Zealand Ltd, VEC Ltd and Myriad Pharmaceuticals Ltd (together the applicants) sought interim orders against the Director-General of Health (the respondent) preventing the promulgation and/or enforcement of regulations reducing the maximum nicotine strength of reusable nicotine salt vaping products from 50 mg/mL to 28.5 mg/mL.

[2]    Following the resolution by consent of that claim, the applicants filed an amended statement of claim challenging the legality of the regulations. On

ALT NEW ZEALAND LTD v DIRECTOR-GENERAL OF HEALTH [2024] NZHC 687 [25 March 2024]

21 December 2023 I determined that the respondents had been unsuccessful on all causes of action, and invited the parties to resolve costs between themselves.

[3]    On 26 January 2024 the parties filed a joint memorandum of counsel regarding costs, agreeing that costs and disbursements of $27,098.80 be awarded to the respondent in respect of all steps taken in the proceedings from 14 August 2023, when the amended statement of claim was filed.

Discussion

[4]    In their joint memorandum, the parties set out costs on a standard 2B basis. This includes costs for:

(a)pleadings in response to amended pleading, namely the third amended statement of defence dated 8 September 2023;

(b)filing memorandum for the second case management conference or mentions   hearing   JMOC   for    timetabling    directions    dated    28 August 2023;

(c)the list of documents on discovery;

(d)preparation of affidavits, list of issues or authorities an agreeing common bundle;

(e)preparation for hearing;

(f)appearance at hearing for sole or principal counsel; and

(g)second and subsequent counsel if allowed by Court.

[5]    In their memorandum the parties note there was an application for interim orders that was dismissed by Ellis J on 23 August 2023. They state that no costs are

sought in respect of that application because Ellis J was not inclined to award costs against the applicants.1

[6]    The total costs amount to $26,887.50. Disbursements include $191.30 for the court filing fees for the statement of defence, and $20 for photocopying, resulting in a total of $211.30 for disbursements.

[7]    I note that there are points where the costs set out in the schedule attached to the joint memorandum of counsel vary from those set out in sch 3 to the High Court Rules 2016 (HCR). These include the list of documents on discovery being stated to have taken 1.25 days instead of 2.5 days as set out in the HCR, or the preparation of affidavits, list of issues or authorities and the preparation for the hearing, both of which are specified to have taken three days rather than four days as provided by the HCR. Furthermore, the statement of defence filing fee is stated as $191.30, whereas it is listed as being $110 under the High Court Fees Regulations 2013 (HCFR).

[8]    Given these costs were derived from agreement of both parties, I will assume that any deviation from the HCR and HCFR was based on the mutual consent of the parties.

[9]    I therefore find these sums to be accurate representations of the costs incurred by the respondent.

Decision

[10]   Costs and disbursements of $27,098.80 are awarded to the respondent, as sought by the parties.

Churchman J

Solicitors:

Powle and Hodson, Auckland for Applicants Crown Law Office, Wellington for Respondent

1      ALT New Zealand Ltd & Ors v Attorney-General [2023] NZHC 2300 at [82].