BETWEEN KEVIN-JOHN TITO AND TUI-DOROTHY TITO Applicants AND NEW ZEALAND POLICE Respondent

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA341/2023
[2024] NZCA 442

BETWEEN	KEVIN-JOHN TITO AND TUI-DOROTHY TITO Applicants
AND	NEW ZEALAND POLICE Respondent

Court:	Courtney and Collins JJ
Counsel:	Applicants in person J P Golightly for Respondent
Judgment: (On the papers)	13 September 2024 at 11 am

JUDGMENT OF THE COURT

The respondent’s application for costs is declined.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

On 5 December 2023, we declined Mr and Mrs Tito’s applications for leave to extend time to appeal and for leave to bring a second appeal.[1]
[1]Tito v Police [2023] NZCA 618.
On 19 December, the New Zealand Police (the Police) filed a memorandum seeking costs under the Court of Appeal (Civil) Rules 2005. The Court then issued a minute questioning whether or not costs could be awarded under the Court of Appeal (Civil) Rules in this case.

The Police’s current position

Notwithstanding that the Police initially applied for costs under the Court of Appeal (Civil) Rules, it now accepts that the only pathway for costs in this case is under the Costs in Criminal Cases Act 1967.
The Police still seeks the same level of costs as it sought when it made its application under the Court of Appeal (Civil) Rules.
Mr and Mrs Tito have not addressed the issue of jurisdiction or how the Court should respond to the Police’s applications for costs.

Analysis

Rule 4(1) of the Court of Appeal (Civil) Rules states that those rules apply to all proceedings in this Court except proceedings to which the Court of Appeal (Criminal) Rules 2001 apply. Under r 4(1)(a) of the Court of Appeal (Criminal) Rules and s 8 of the Costs in Criminal Cases Act the application brought before us can only be subject to a costs award made under that Act.
The making of awards under the Costs in Criminal Cases Act is discretionary and there “must be something significantly out of the ordinary to justify an award of costs on a criminal appeal”.[2] Whilst Mr and Mrs Tito’s applications were declined by this Court, we do not accept that the applications meet the threshold of “frivolous or vexatious”.[3]

Result

[2]W(CA447/2017) v R [2020] NZCA 283 at [15].

[3]Costs in Criminal Cases Act 1967, s 8(5).

The respondent’s application for costs is declined.

Solicitors:
Marsden Woods Inskip Smith, Whangārei for Respondent

CaseChat Overview and Summary

In the case of Kevin-John Tito and Tui-Dorothy Tito versus New Zealand Police, the applicants sought leave to extend the time to appeal and for leave to bring a second appeal. The Court of Appeal previously declined their applications on 5 December 2023. The New Zealand Police filed a memorandum on 19 December, seeking costs under the Court of Appeal (Civil) Rules 2005. However, the Police later acknowledged that the only applicable pathway for costs in this instance was under the Costs in Criminal Cases Act 1967. The applicants did not address the issue of jurisdiction or the Police's application for costs.

The central legal issue before the court was whether the Court of Appeal had jurisdiction to award costs under the Court of Appeal (Civil) Rules 2005 or if the matter fell exclusively under the Costs in Criminal Cases Act 1967. The Court examined the application of Rule 4(1) of the Court of Appeal (Civil) Rules and the provisions of the Court of Appeal (Criminal) Rules 2001 and the Costs in Criminal Cases Act. The court determined that the applications by Mr and Mrs Tito, although declined, did not meet the threshold for being deemed "frivolous or vexatious," which would be required for an award of costs under the Costs in Criminal Cases Act.

The Court concluded that the Police’s application for costs should be declined. The Court of Appeal found that there was nothing significantly out of the ordinary in the applicants' conduct to justify an award of costs on this criminal appeal. The court emphasized that awards under the Costs in Criminal Cases Act are discretionary, and the applications by Mr and Mrs Tito did not meet the required threshold. The application for costs by the New Zealand Police was thus declined.

There being no further matters to address, the Court of Appeal formally declined the respondent's application for costs, affirming that the Court of Appeal (Civil) Rules did not provide a basis for such an award in this instance.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established