Angus v Plumbers, Gasfitters and Drainlayers Board

[2018] NZHC 3021

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-953

[2018] NZHC 3021

IN THE MATTER

of an appeal under section 169(1) of the Plumbers, Gasfitters, and Drainlayers Act 2006

BETWEEN

KEVIN ANGUS

Appellant

AND

PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD

Respondent

Hearing:	On the papers
Appearances:	C J Griggs for Appellant M J Hodge for Respondent
Judgment:	21 November 2018

JUDGMENT OF PETERS J

[Costs]

This judgment was delivered by Justice Peters on 21 November 2018 at 10 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Stephens Lawyers, Wellington

Meredith Connell, Auckland

Counsel:            C J Griggs, Wellington

ANGUS v PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD [2018] NZHC 3021 [21 November 2018]

Introduction

[1]                 This judgment determines an application for costs by the respondent (“Board”) against the appellant, Mr Angus.

[2]                 The application arises from Mr Angus’s unsuccessful appeal to this Court against a decision of the District Court, which in turn dismissed Mr Angus’s appeal against a purported decision of the Board.1 I say “purported” because the gist of the District Court’s decision, and mine in this Court, was that the Board had not in fact made the decision Mr Angus  alleged  or indeed any decision  in respect of which     s 162(1) Plumbers, Gasfitters, and Drainlayers Act 2006 (“Act”) confers a right of appeal.

[3]                 It is common ground between the parties that costs follow the event, that the Board was the successful party in the High Court, that costs are to be determined on a “2B” basis and that the Board is entitled to costs for the preparation of written submissions and its appearance at the hearing of the appeal. The Board’s costs total

$7,805, and it seeks a further $942 comprising 0.2 of a day for its submissions on costs, another 0.2 of a day for sealing a costs order and $50 in disbursements for the sealing fee.

[4]                 Mr Griggs, counsel for Mr Angus, submits that I should reduce the costs payable to the Board by 50 per cent, because Mr Angus was partially successful and because his proceeding concerned a matter of public interest.2 The Board objects to any reduction, hence this judgment.

Background

[5]                 Mr Angus appealed to the District Court against what he contended was part of a decision by the Board to decline to register him as a “certifying” plumber.3 In the District Court, Judge Harrop held that there had been no such decision and that, as a result, he did not have jurisdiction to determine the appeal.

1      Angus v Plumbers, Gasfitters and Drainlayers Board [2018] NZHC 2299.

2      High Court Rules 2016, r 14.7(d) and (e).

3      Plumbers, Gasfitters, and Drainlayers Act 2006, s 162(1)(c).

[6]                 Mr Angus appealed against that decision to this Court and I held that the Judge was correct. In doing so, I expressed reservations about two observations made by the Judge, and these form the basis of Mr Griggs’s submission that I should reduce the costs otherwise payable by Mr Angus. Mr Griggs relies on r 14.7(d) and (e), High Court Rules 2016, which provide:

14.7Refusal 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—

…

(d)although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or

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

…

[7]The relevant passages from my decision are as follows:

[32]      This is sufficient to dispose of the appeal but I wish to express my reservations about  two  particular  observations  of  the  Judge  to  which  Mr Griggs referred me. These observations were no doubt intended to assist the parties but were not strictly necessary to the decision.

[33]      The first of these was in respect of s 37(2). The Judge expressed the view that the Registrar would be bound to reject any application for registration not evidencing  that  the  minimum  standards  were  satisfied. Mr Griggs submits that s 37(2) requires the Registrar to forward all applications to the Board, possibly subject to payment of the fee or other matters of form. The matter was not argued in any detail before me because it was not of any real consequence to the appeal. However, I likewise have reservations as to whether the Registrar could, let alone would be required to, reject an application for registration other than on the grounds to which I have referred.

[34]      The second is a statement by the Judge that decisions on the marking of examinations, generally or on the particular points raised by Mr Angus, may not constitute decisions of the Board. This was on the basis of evidence that the Board’s practice is to have exams set and marked by sufficiently qualified third parties, and those third parties make the relevant decisions.

[35]      I note that one of the Board’s statutory functions is to “make arrangements for the examination of persons practising or intending to

practise the sanitary plumbing ... trades”. The Board is also required to carry out any functions “incidental” to that function.

[36]      Again, there was no detailed argument on this point but Mr Griggs submits that, however the Board fulfils its obligations, the relevant decisions remain those of the Board. I do not need to decide this point but again I think Mr Griggs likely to be correct.

(footnotes omitted)

Partial success

[8]                 Mr Griggs submits that my remarks resulted in “a very significant positive change in the appellant’s legal position”. He submits that I “effectively decided in favour of Mr Angus” on those matters. Mr Griggs also submits that the preparation and argument in respect of these matters occupied 50–80 per cent of the time spent on the appeal and thus the costs incurred.

[9]                 Mr Griggs referred me to Weaver v Auckland Council, in which the Court of Appeal reduced the appellants’ costs by 50 per cent, to reflect the degree of the appellants’ success.4

[10]              In response to these submissions, Mr Hodge for the Board submits that its defence of the District Court decision did not rely on the matters addressed in the quoted paragraphs of my decision. Mr Angus did not have to argue them, he did not have to incur the associated costs, and he did not achieve any form of success.

[11]              I accept the first two points. As to the third, for myself I would not have considered the reservations I expressed about the Judge’s (extraneous) observations could be described as “success” for Mr Angus. The correct position on each point remains a matter for argument if and when the issue arises and proves to be determinative of a particular case.

[12]              The decision in Weaver is not helpful in the present case. In Weaver, the appellant home owners succeeded against Auckland Council and others. On the issue of damages, however, the appellants only succeeded in relation to some of the claimed heads of loss. They were awarded just under half of the total damages they claimed.

4      Weaver v Auckland Council [2017] NZCA 330 at [26].

[13]                The Court of Appeal reduced the appellants’ costs by 50 per cent on the grounds they had put the respondents to unnecessary expense in responding to arguments on which the appellants did not succeed:5

…it is appropriate that the costs ultimately awarded to the appellants should be reduced in accordance with r 14.7(d) because, although the appellants succeeded, the time and resources necessary for the respondent to meet ultimately unsuccessful arguments significantly increased its costs.

(my emphasis)

[14]              This case is different. In Weaver, the damages were an important issue and the appellants put the respondents to substantial unnecessary – or wasted – costs. The Judge’s extraneous observations, and mine in response, were of no consequence to the outcome of Mr Angus’s appeal.

[15]              It follows that I am not persuaded Mr Angus achieved any form of success that would warrant a reduction in the costs he is required to pay on appeal.

Public interest

[16]              Mr Griggs also submits that Mr Angus’s appeal concerns a matter of public interest in terms of r 14.7(e). To succeed in this contention, Mr Angus would need to show the proceeding concerned a matter of genuine public interest, had merit and was of general importance beyond his particular interests.6

[17]              Mr Griggs submits that the proceeding has clarified the powers and duties of the Board, as well as the permissible scope of the right of appeal under the Act. This clarification was of public importance within the industry and represented important precedent, given appeals to this Court under the Act were rare.

[18]              Mr Hodge submits that Mr Angus brought his appeal to advance his own interests and could not rely on any wider public interest.

5      Weaver v Auckland Council, above n 4, at [26].

6      Taylor v The District Court at North Shore HC Auckland CIV-2009-404-2350, 13 October 2010 at [9].

[19]              I am not satisfied that Mr Angus’s appeal concerned a matter of genuine public interest or was of general importance beyond his own interests. The only issue on appeal was whether the District Court Judge was correct to determine there is no right of appeal under s 162(1)(a) unless and until the Board has decided to decline an application for registration.

[20]Accordingly, Mr Angus has not satisfied r 14.7(e).

Result

[21]              Mr Griggs submits that Mr Angus will abide the decision of the Court and so it will not be necessary for the Board to seal this judgment. Given that, it is unnecessary to order Mr Angus to pay costs to seal the judgment. I order Mr Angus to pay the Board:

(a)$7,805 for costs arising from the proceeding; and

(b)$446 for costs and disbursements arising from the Board’s application for costs.

Peters J