Bowerman v Goodfellow
[2024] NZHC 3837
•13 December 2024
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2024-470-21
[2024] NZHC 3837
UNDER the New Zealand Bill of Rights Act 1990 and the Trespass Act 1982 BETWEEN
CLINTON BOWERMAN
Plaintiff
AND
PETER GOODFELLOW
First Defendant
COMMISSIONER OF POLICE
Second Defendant
Hearing: On the papers Appearances:
Plaintiff in Person
Lady D Chambers KC for the First Defendant R W Jenson for the Second Defendant
Judgment:
13 December 2024
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
[Costs]
This judgment was issued by me on 13 December 2024 at 4 pm.
Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
Solicitors/Counsel:
Pollett Legal, Tauranga
Bankside Chambers, Auckland
BOWERMAN v GOODFELLOW [2024] NZHC 3837 [13 December 2024]
Introduction
[1] On 26 September 2024, I gave judgment for the first defendant and the second defendant striking out the plaintiff’s claim in its entirety.1 Costs are determined in this judgment.
[2] The first defendant, Mr Goodfellow, seeks an award of indemnity or increased costs. The second defendant seeks cost on a 2B basis.
[3] The plaintiff, Mr Bowerman, asks the Court to order that costs lie where they fall, or to reduce the costs orders that would otherwise be made, on compassionate grounds. Mr Bowerman refers to the alleged factual basis that underlies his claims, and his current state of health and position in life.
Legal principles
[4] While all matters relating to costs are at the discretion of the Court,2 that general discretion is qualified by the specific costs rules in the High Court Rules 2016 (HCR) and is exercisable only in situations not contemplated or not fairly recognised by the HCR.3 Ordinarily, the loser pays the winner’s costs according to the scale set out in the HCR.4
[5] The Court may make an order for increased costs or indemnity costs in the circumstances provided for under r 14.6(3) and (4) of the HCR.
[6] Under r 14.6(4)(a), the Court may order a party to pay indemnity costs if “the party has acted vexatiously, frivolously, improperly or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding”.
[7] Under r 14.6(3)(b)(ii), the Court may order increased costs under if a party takes or pursues an unnecessary step or an argument that lacks merit.
1 Bowerman v Goodfellow [2024] NZHC 2790.
2 High Court Rules 2016, r 14.1(1).
3 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [6].
4 High Court Rules, r 14.2(1)(a).
[8] In Bradbury v Westpac Banking Corporation, the Court of Appeal summarised the circumstances where scale costs, increased costs and indemnity costs might be ordered:5
(a)standard scale applies by default where cause is not shown to depart from it;
(b)increased costs may be ordered where there is failure by the paying party to act reasonably; and
(c)indemnity costs may be ordered where that party has behaved either badly or very unreasonably.
[9] The party claiming indemnity costs bears the onus of persuading the Court that the award is justified.6 Indemnity costs are reserved for egregious conduct.7
[10] The circumstances that permit a refusal or reduction of costs are set out in r 14.7, which provides:
14.7 Refusal of, or reduction in, costs
Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—
(a)the nature of the proceeding or the step in a proceeding is such that the time required by the party claiming costs would be substantially less than the time allocated under band A; or
(b)the property or interests at stake in the proceeding were of exceptionally low value; or
(c)the issues at stake were of little significance; or
(d)although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or
(e)the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or
(f)the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i)failing to comply with these rules or a direction of the court; or
5 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27].
6 SPAK (1996) Ltd v Leroy [2022] NZCA 564, (2022) 23 NZCPR 769 at [189].
7 AFI Management Pty Ltd v Lepionka & Company Investments Ltd [2018] NZHC 1285 at [17].
(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii)failing, without reasonable justification, to admit facts, evidence, or documents, or accept a legal argument; or
(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or
(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or
(g)some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.
Analysis
Mr Goodfellow’s claim for indemnity or increased costs
[11] Mr Bowerman was self-represented. His statement of claim was deficient and it did not comply with the HCR. I noted that:8
[8] … His statement of claim dated 25 January 2024 (the statement of claim) is 46 pages long. It pleads significant amounts of evidence and numerous propositions of law. These irregularities could be remedied, and it is possible to discern the essential nature of the allegations that Mr Bowerman is making and the causes of action that he pleads.
[12] Some of the claims were for losses allegedly suffered by a third party and not recoverable by Mr Bowerman.9 Some of the claims related to Mr Bowerman’s contract with a third party and were not recoverable against the defendants.10
[13] I held that Mr Bowerman’s other claims against Mr Goodfellow in negligence were unsustainable, although it was possible for the type of facts alleged by Mr Bowerman to be recast as supporting other torts. However, I struck out Mr Bowerman’s claims on the ground that the claims were time barred.11
8 Bowerman v Goodfellow, above n 1, at [8].
9 At [9].
10 At [10].
11 At [22] and [29].
[14] Although many of the claims were misconceived, Mr Bowerman’s conduct was not egregious warranting an award of indemnity costs to Mr Goodfellow.
[15] Similarly, I do not consider that increased costs are warranted. As I noted in the judgment, it was possible to discern an alleged factual basis for a claim in tort against Mr Goodfellow, but the claim was out of time.
[16] I do not accept the submissions of counsel for Mr Goodfellow that the proceeding required counsel with special skill and experience. The defendants moved promptly to strike out the claim before filing defences, and the defendants were not required to file any affidavit evidence. The defendants succeeded with their strike-out on orthodox legal arguments.
[17] Allocations of time on a 2B basis are adequate, with one exception. Preparation of the interlocutory applications required the parties to grapple with a prolix and discursive statement of claim. An award of two days on a 2C basis is appropriate for that step.
Mr Bowerman’s claim for a reduction in costs
[18] The matters raised by Mr Bowerman do not fall within any of the grounds in r 14.7. There is no basis to reduce costs.
Conclusion
[19] Accordingly, I award costs to each defendant based on a daily rate of $2,390 for the following steps:
(a)appearance at mentions hearing on 24 June 2024 — 0.2 days;
(b)filing interlocutory application for an order striking out the claim — 2 days;
(c)preparation of written submissions — 1.5 days; and
(d)appearance at hearing of interlocutory application — 0.25 days.
Orders
[20] The plaintiff shall pay costs to the first defendant of $9,440.50 together with disbursements of $860.60.
[21]The plaintiff shall pay costs to the second defendant of $9,440.50.
Associate Judge Brittain
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