B & J Young of Dargaville Funeral Services Limited v Kaipara District Council

[2020] NZHC 3369

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-62

[2020] NZHC 3369

IN THE MATTER

of the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

BETWEEN

B & J YOUNG OF DARGAVILLE FUNERAL SERVICES LTD

Applicant

AND

KAIPARA DISTRICT COUNCIL

Respondent

Judgment:

(On the papers)

17 December 2020

COSTS JUDGMENT OF BREWER J

Solicitors:

Thomas Law (Auckland) for Applicant Simpson Grierson (Auckland) for Respondent

B & J YOUNG OF DARGAVILLE FUNERAL SERVICES LTD v KAIPARA DISTRICT COUNCIL [2020] NZHC 3369 [17 December 2020]

[1]This is a costs judgment.

[2]        In my Minute of 18 September 2019, I recorded that the applicant had filed documents which purported to be a notice of proceeding and statement of claim. They did not comply with the High Court Rules as to form and had been filed on behalf of the applicant by people who were not barristers and solicitors of the High Court of New Zealand.

[3]I held the documents should not have been accepted for filing.

[4]        The respondent had applied to strike out the proceeding. Memoranda on behalf of the respondent dated 19 August 2019, 21 August 2019 and 17 September 2019, together with an affidavit of Dean Arthur Nuralli in support of the application for strike out, left me in no doubt that the proceeding as filed could not stand. However, I said:

[8]        I am reluctant to strike out the claim since it has been accepted for filing. I will allow Dargaville Funeral Services Ltd time to engage counsel and to file amended documents in the proceeding. In the meantime, there is no obligation on the respondent/defendant to file a statement of defence or take any further steps.

[9]I make the following order:

Unless further documents  are  filed  regularising  the  proceeding  by 1 November 2019, the existing proceeding will be struck out as a nullity.

[5]        On 10 October 2019 the applicant, through counsel, filed an amended statement of claim.

[6]The applicant has now discontinued the proceeding.

[7]        The applicant does not want to pay costs. Its current counsel, Ms Carruthers, advises in a memorandum:

4.I was instructed by the applicant in late June 2020 to peer-review the amended statement of claim. It was clear that a fundamental flaw remained in the amended statement of claim, primarily that there was no identifiable exercise of a statutory power of decision being challenged. I contacted counsel for the Respondent immediately to put it on notice that a further amended statement of claim would need to

be prepared and filed if the proceeding were to advance. This occurred on 26 June 2020.

[8]Ms Carruthers submits further:

5.In the months since and with my involvement, the Applicant has been endeavouring to achieve re-registration of its premises. To date, that has not been possible. However, the Respondent has:

(a)recently confirmed it was unlawful for it to place conditions on the earlier registration for the premise and acknowledged its actions “seems to have given [the applicant] a false expectation”;1

(b)recently exercised statutory powers of decision under Regulation 23 of the Health Burial Regulations 1946 not to approve the premises.

6.Now that the Respondent has admitted its actions were unlawful yet created an expectation, there is nothing further to be gained from continuing with the proceeding as filed.

7.With the Respondent’s recent exercise of a statutory power of decision, a second amended statement of claim could be prepared and filed. The Applicant has reflected on the merits of the options, and taken my advice that it is better to focus their limited time, energy and financial resources on endeavouring to obtain registration of its purpose built facility.

[9]        The respondent asks for costs on a 2B basis. It does not accept Ms Carruthers’s submission that it recently confirmed that it was unlawful for it to place conditions on the earlier registration for the premise and that the respondent acknowledged its actions seemed to have given the applicant a false expectation.

[10]      The general point, however, made by counsel for the respondent is that the applicant commenced the proceeding, put the respondent to cost, and has now withdrawn the proceeding against an acknowledgement that neither statement of claim raised a justiciable claim.

[11]      Generally, a plaintiff who discontinues a proceeding must pay the reasonable costs of the other party. Usually at the appropriate scale. There can be exceptions. One exception is if, by the filing of the proceeding, the plaintiff gained what it sought

1      By open letter dated 3 September which can be provided on request.

from the other party. For example, for all practical purposes the other party gave the plaintiff what it sought.

[12]      The situation here is that two statements of claim were filed. The first did not comply with the High Court Rules and could not survive the respondent’s strike out application. The second was filed taking advantage of the latitude I afforded. It is acknowledged that the second statement of claim did not allege a justiciable issue either.

[13]      The applicant has chosen to discontinue the proceeding on the basis of advice that it should direct its energies to solving its issue with the respondent in another way.

[14]In these circumstances, the respondent is entitled to its reasonable costs.

[15]      I have had regard to the schedule filed by counsel for the respondent. I accept that a category 2B scale is appropriate. I accept that the schedule adequately addresses the steps taken by the respondent.

[16]I grant costs in favour of the respondent on a 2B basis in the sum of $6,692.

Brewer J