Ballantyne v Police - [2012] NZHC 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2011-419-000463 [2012] NZHC 2104

BETWEEN JOHN KENNETH SLAVICH Plaintiff

ANDDAVID BRIAN COLLINS, CAMERON LESLIE MANDER, CHERYL RAEWYN GWYN, MATTHEW SIMON RUSSELL PALMER
First Defendants

ANDCHRISTOPHER FRANCIS FINLAYSON Second Defendant

ANDREGISTRAR OF WELLINGTON DISTRICT COURT
Third Defendant

Hearing: On the papers

Appearances: Plaintiff in person
D N Soper for Defendants

Judgment: 17 August 2012

RESERVED COSTS JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Friday 17 August at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:
D N Soper, Crown Law, Wellington 6140. Email: david.soper@crownlaw.govt.nz

Copy to:
J K Slavich, Hamilton, Email: jks22@hotmail.com

SLAVICH V COLLINS & ORS COSTS HC HAM CIV-2011-419-000463 [17 August 2012]

Introduction

[1] On 1 May 2012 I released a judgment which struck out the plaintiff’s

proceedings against all defendants.[1]

[1] Slavich v Collins & Ors HC Hamilton CIV-2011-419000463, 1 May 2012. [2012] NZHC 856

[2] I reserved the issue of costs and commented as follows:

[29] Mr Soper indicated that, in the event of his application succeeding, the defendants would be seeking indemnity costs. Certainly the defendants are entitled to costs.

[30] Whether the plaintiff is worth pursuing for costs will be for the defendants to decide. I note that Andrews J awarded 2B costs against the plaintiff in her July 2011 strike out judgment. I am unaware whether those costs have been paid or enforced.

[31] If the defendants wish to seek costs they should file a short memorandum stipulating the amounts claimed and reasons therefore (if more than 2B costs are sought) within 15 working days of the release of this judgment. The plaintiff is to file any written reply (dealing solely with the costs issue) ten working days thereafter.

[3] The defendants have sought indemnity costs and there has been an exchange of memoranda. These documents were filed at the start of and during the two month period of my sabbatical leave. Since my return from leave last month I have had heavy judicial commitments and have been unable to consider the matter until now.

The issue

[4] The defendants seek indemnity costs or, in the alternative, 2B costs. The plaintiff resists costs. The simple issue is whether costs should be awarded against
the plaintiff and, if so, at what level.

Discussion

[5] As indicated in my 1 May 2012 judgment my preliminary view was that the defendants, as successful parties, were entitled to costs.

[6] Mr Soper’s memorandum seeks indemnity costs (inclusive of disbursements and GST) of $25,421.89 pursuant to Rule 14.6(4) of the High Court Rules. That provision provides:

(4) The court may order a party to pay indemnity costs if—

(a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or

(b) the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party; or

(c)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ballantyne v Police

Details

AGLC: Ballantyne v Police [2012] NZHC 2014
Case: [2012] NZHC 2014
Decision Date: 13 August 2012

CaseChat Overview and Summary

The High Court of New Zealand, Hamilton registry, presided over by Priestley J, delivered a reserved costs judgment in the case of Ballantyne v Police. The plaintiff, John Kenneth Slavich, had previously been involved in multiple proceedings against various defendants, including police officers and the Registrar of the Wellington District Court. Slavich's claims were struck out by the Court on 1 May 2012, leading to the defendants seeking costs against the plaintiff. The defendants argued that they were entitled to indemnity costs or, in the alternative, 2B costs. Slavich opposed the costs application, asserting that his claims were justified and that the third defendant acted under the guidance of a judicial officer. The central issue before the court was whether costs should be awarded against the plaintiff and, if so, at what level.

The court considered the nature of Slavich's litigation history, finding that his claims were vexatious, frivolous, and an abuse of process. The court noted that Slavich had previously been awarded 2B costs in a similar proceeding, and the defendants had incurred considerable expense due to his actions. The court recognised that Slavich fit within the criteria for indemnity costs under Rule 14.6(4)(a) of the High Court Rules. However, the court exercised its discretion and determined that an award of indemnity costs would likely inflame Slavich's sense of grievance without achieving a useful deterrent effect. The court found that the costs to the public could have been mitigated by declaring Slavich a vexatious litigant.

In conclusion, the court awarded 2B costs to the defendants, totalling $14,329.10 inclusive of disbursements and GST. The plaintiff was ordered to pay this amount to the defendants. The court found that this outcome balanced the need to deter vexatious litigation with the potential for exacerbating the plaintiff's grievances.

Orders