Attorney General of Samoa v TVWorks Limited

[2012] NZHC 824

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1110 [2012] NZHC 824

BETWEEN  ATTORNEY GENERAL OF SAMOA Plaintiff

ANDTVWORKS LIMITED Defendant

Counsel:         J E Hodder SC and V L Heine for Plaintiff

S Bacon and C Bradley for Defendant
A Scott-Howman for Broadcasting Standards Authority

Judgment:      30 April 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 1:00pm on the 30th April 2012.

JUDGMENT (COSTS) OF WILLIAMS J

Solicitors:

Chapman Tripp, Wellington

Luke Cunningham & Clere, Wellington

Izard Weston, Wellington

ATTORNEY GENERAL OF SAMOA V TVWORKS LIMITED HC WN CIV-2011-485-1110 [30 April 2012]

Background

[1]      In  an  earlier  judgment  of  mine,  I dismissed  an  appeal  by the Attorney- General  of Samoa (appellant),  against  a decision  of the Broadcasting  Standards Authority in favour of TVWorks (respondent).[1]    This is an application for costs in relation to that unsuccessful appeal.

[1] Attorney-General of Samoa v TVWorks Ltd HC Wellington [2012] NZHC 131.

[2]      The parties agree that costs should generally be assessed on a 2B basis.  The issue is whether costs and disbursements in relation to second counsel should be awarded.

[3]      The respondent claims costs and disbursements of $11,047.85.  This includes

$1,880 for one day’s appearance of second counsel, and $483 and $598 for accommodation and flights for that counsel from Auckland to Wellington, respectively.

[4]      The appellant disputes both the costs and disbursements relating to second counsel.  They say first that this was not a case where second counsel was warranted at all.   In the alternative, they say if second counsel were warranted, the disbursements were still unreasonable because TVWorks should have engaged local counsel. They submit a final award of $8,086.85 is appropriate.

Principles

[5]      The starting point is that costs are discretionary.[2]   That discretion is qualified by rr 14.2 – 14.10 of the High Court Rules.  In particular, as far as possible, awards should be predictable and expeditious.[3]     Costs for appearances of second counsel

may be awarded, if the Judge permits.[4]

[2] High Court Rules, r 14.1.

[3] High Court Rules, r 14.2(g).

[4] High Court Rules, Schedule 3, cl 4.16.

[6]      In relation to disbursements, the relevant principles are:[5]

[5] High Court Rules, r 14.12.

14.12    Disbursements

...

(2)        A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—

(a)       of a class that is either—

(i)         approved by the court for the purposes of the proceeding;

or

(ii)        specified in paragraph (b) of subclause (1); and

(b)       specific to the conduct of the proceeding; and

(c)        reasonably necessary for the conduct of the proceeding; and

(d)       reasonable in amount.

(3)        Despite subclause (2), a disbursement may be disallowed or reduced if it is disproportionate in the circumstances of the proceeding.

Analysis

[7]      It is perhaps easier to deal with the alternative submission first.   I do not accept that, if this were a case where costs for second counsel was warranted, it was necessarily unreasonable for TVWorks to have flown down counsel from Auckland. To rephrase, it could be said it was “reasonably necessary” to fly down said counsel for the purposes of r 14.12.   TVWorks is entitled to counsel of its choice (within limits, the bounds of which are not relevant here).  Winkelmann J came to a similar view on precisely the same issue in Radioworks v Commissioner of Inland Revenue.[6]

[6] Radioworks v Commissioner of Inland Revenue HC Auckland CIV-2007-404-5853, 9 February 2011.

[8]      That said, I do not think this is a case where costs for second counsel are warranted.   A review of relevant case law suggests this question of discretion is shaped largely by the judge’s intuitive assessment of the complexity of the case at hand.  Notably, those cases where costs for second counsel have been awarded have

typically been complex ones.[7]    Equally, those cases where costs have been refused

generally cite the lack of any unusual complexity or difficulty that is out of the ordinary.[8]   While some cases do not fit that pattern,[9] the general trend is clear and, in any event, the final decision is discretionary.

[7] See, for example: Belcher v Commissioner of Inland Revenue (2010) 24 NZTC 24,225 (HC);

Outtrim v Li HC Auckland CIV-2006-004-2768, 10 March 2010; and Sanford Ltd v Chief Executive of the Ministry Of Fisheries HC Wellington CIV-2009-485-379 18 February 2010.

[8] See, for example: General Distributors Ltd v Waipa District Council HC Auckland CIV-2008-404-

[9] See, for example: P v Attorney-General (2010) 20 PRNZ 78 (HC) (a case warranting 2B categorisation); and Catley v Waipa Corporation Ltd HC Auckland CIV-2008-404-7975 30 July 2010 (a case warranting 2B categorisation, albeit Duffy J did, in awarding costs, state at para [9] that “any difficulties due to the complexity of the proceeding will have been overcome by the assistance of second counsel”).

[9]      Here, the parties agree that costs should generally be awarded on a 2B basis. The appeal was on the papers, and no witnesses were called.  In the light of these facts, I am not persuaded the case was sufficiently complex to warrant certifying for second counsel.

Result

[10]     The respondent’s application is therefore unsuccessful insofar as it relates to

costs and disbursements for second counsel.

[11]     I award costs to the respondent on a 2B basis, in the sum of $8,086.85.

Williams J

4857, 4 March 2009; Network Cabling Solutions Ltd v Ice Group (NZ) Ltd HC Wellington CIV-2008-
485-1360, 15 December 2010; and T&T Drainage Ltd v Rennell HC Auckland CIV-2009-404-1506

16 February 2011.