Beacon Media Group Limited v Waititi

[2014] NZHC 514

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2013-463-000106 [2014] NZHC 514

BETWEEN  BEACON MEDIA GROUP LIMITED Appellant

ANDEDWARD TAIKA WAITITI Respondent

Hearing:                   On the papers.

Counsel:                  R K P Stewart for the Appellant

C M Andersen for the Respondent

Judgment:                20 March 2014

COSTS JUDGMENT OF GILBERT J

This judgment is delivered by me on 20 March 2014  at 11:30 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

BEACON MEDIA GROUP LTD v WAITITI [2014] NZHC 514 [20 March 2014]

[1]      In  a  judgment  delivered  on  26  February  2014  I  allowed,  in  part,  the appellant’s  appeal  from  a  decision  of  the  District  Court  granting  extensive suppression orders under s 202 of the Criminal Procedure Act 2011.1   This judgment deals with the issue of costs.  The respondent seeks costs calculated on a 2B basis under Part 14 of the High Court Rules.  The appellant submits that costs should lie where they fall.

[2] The appeal against the suppression order was brought by the appellant pursuant to s 283 of the Criminal Procedure Act. Section 364 of the Act makes provision for the Court to make a costs order in respect of any procedural failure. That section has no application in the present case. However, as is clear from s 364(9), the power to make such an order does not limit the Court’s power to make an order for costs under the Costs in Criminal Cases Act 1967. Section 8 of that Act empowers the Court to make costs awards on any appeal pursuant to any provision of Part 6 of the Criminal Procedure Act. Section 8 applies in this case because the appeal was brought pursuant to s 283 which is found in Part 6 of the Act.

[3] Section 8 of the Costs in Criminal Cases Act relevantly provides:

8        Costs on appeals

(1)       Where any appeal is made pursuant to any provision of Part 6 of the Criminal Procedure Act 2011 the Court which determines the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.

...

(6)       If the Court which determines an appeal is of the opinion that the appeal involves a difficult or important point of law it may order that the costs of any party to the proceedings shall be paid by any other party to the proceedings irrespective of the result of the appeal.

[4] The Court has a wide discretion under s 8. Unlike the costs regime in civil cases under the High Court Rules, there is no presumption for or against an award of costs under the Costs in Criminal Cases Act. A costs award will not be made merely because a party has succeeded on the appeal; there must be good grounds for making

a costs order.

1      Beacon Media Group Limited v Waititi [2014] NZHC 281.

[5]      I have come to the conclusion that no costs order should be made in this case for the following reasons:

(a)      Neither party was wholly successful.   The appellant succeeded  in overturning  the  suppression  order  insofar  as  it  extended  to  all  of Mr Waititi’s relatives other than his relative referred to as “X” in the principal judgment.   The respondent succeeded in maintaining the suppression order in relation to X.

(b)The appeal raised an important point of law as to the threshold test to be applied under s 202 of the Criminal Procedure Act.  This issue had not previously been addressed by this Court.

(c)      An award of costs against the appellant in this case could have a chilling effect on the media’s willingness to challenge suppression orders. This would be contrary to the public interest.

(d)The  costs  incurred  in  this  case  would  have  been  modest.    The submissions were substantially the same as those prepared for the hearing in the District Court.  The hearing of the appeal occupied less than one hour.

[6]      The application for costs is accordingly dismissed. Costs are to lie where they fall.

M A Gilbert  J