Brady v Presbyterian Church of Aotearoa New Zealand

[2013] NZHC 2300

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2549 [2013] NZHC 2300

BETWEEN

Mrs LAISARINI HANIPALE BRADY

First Plaintiff

SO'OLEFAI FALE and SOTIATA FALE
Second Plaintiff

LAISARINI HANIPALE, SOTIATA FALE and LUPEMATASILA SIAOSI

Third Joint Plaintiffs

LEOTA SENERITA HENDRIKSE and EDWIN HENDRIKSE

Fourth Joint Plaintiffs

AND

THE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND

First Defendant

CONTINUED OVERLEAF

Hearing:

31 July 2013 (on papers)

Appearances:

O Woodroffe for plaintiffs

S A Barker for first to fourth defendants

Judgment:

5 September 2013

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE (ON COSTS)

This judgment was delivered by me on

5.09.13 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BRADY & ORS  v PRESBYTERIAN CHURCH OF AOTEAROA & ORS [2013] NZHC 2300 [5 September 2013]

AND              NORTHERN PRESBYTERY

Second Defendant

AND              REVEREND TONY SPANDOW

Third Defendant

ANDLES PARLANE, TEPU DEBBIE COOMBS and FILEMONI FA’AVALE

Fourth Defendants

AND              ALISTAIR HALL LAWYERS

Fifth Defendant

[1] In this case, the Court has issued two judgments which are in favour of the defendants. The first was a judgment of Warwick Gendall J dated 14 May 2012 when he dismissed an application for an interim injunction. The second judgment I issued on 8 February 2013 granting summary judgment and strike out orders which the defendants sought against the plaintiffs and dismissing the plaintiffs’ application for summary judgment. I subsequently ordered that the plaintiffs were to pay costs and disbursements on the applications which I dealt with.

[2] The first issue that arises is whether the plaintiffs ought to be required to meet the costs of second counsel. Such costs can be ordered where the Court allows the claim.[1] No guidance is set out in the rules as to the circumstances in which such an allowance ought to be made. The way in which the cost rules are structured would suggest that the norm will be that one counsel only will be provided for.

There are a number of criteria that suggest themselves to be relevant which need to be considered when deciding whether such an allowance should be granted. Primarily it will be a question of the complexity of the proceedings including the issues involved; the range of the evidence; and the number of witnesses, depositions and the volume of evidence before the Court. Any particular difficulties peculiar to the case may also be relevant. For example, where the presentation of the case by the other party and the evidence relating to it is disorganised and difficult to cope with, there may be an argument for the need for additional counsel. On the other hand, in a summary judgment application where the evidence has been produced in affidavit form well in advance of the hearing there may be reduced requirement for second counsel when compared with the situation at trial where changes occur to the evidence and where cross examination has to be undertaken. The extent of the work required may mean that it is not reasonable to require leading counsel to deal with it on his/her own. Some of these factors were present in this case. The pleadings which the plaintiffs filed were of considerable length and not easy to follow. On the other hand the evidence, being in affidavit form, was settled well in advance of the hearing.

[1] Schedule 3 High Court Rules.

[3] On balance, I do not consider that in the present case it would be fair to require the plaintiffs’ to meet the cost of second counsel.

[4] The sole remaining issue in dispute concerns disbursements which the first to fourth defendants have claimed. These relate to both the injunction application which Gendall J decided and the matter in which I gave judgment. More specifically they concern the question of whether the first to fourth defendants ought to be entitled to claim for the travel expenses of their counsel from Wellington to Auckland for the hearings and the related accommodation expenses.

[5] In the memorandum filed on the matter of costs the plaintiffs’  counsel submitted:

13.2Travel disbursements are sought for Counsel’s travel and expenses. There was no reason in which out of town Counsel was necessary in this proceeding, and there are numerous available Counsels in Auckland who could have conducted the proceedings for the first to fourth defendants. It is also noted that Buddle Findlay also have an Auckland office, in which Counsel from the Auckland office could have been appointed. It is submitted that travel expenses are not a reasonably necessary payment in this matter (See: Westpac Banking Corporation v Topless (1992) 6 PRNZ 424 and Turners and Growers Ltd v Zespri Group Ltd HC Auckland CIV-2009-404-4392, 29 October 2010).

[6]   The claim for disbursements is brought under r 14.12 HCR.  Subrule (2) of the rule provides:

(2)A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—

(a)of a class that is either—

(i)approved  by  the  court  for  the  purposes  of  the proceeding; or

(ii)       specified in paragraph (b) of subclause (1); and

(b)specific to the conduct of the proceeding; and

(c)reasonably necessary for the conduct of the proceeding; and

(d)       reasonable in amount.

[7] The focus of the dispute between the parties would appear to be on paragraph “(c)”, whether the claimed disbursements were “reasonably necessary for the conduct of the proceeding”.

[8] The authorities were reviewed in the decision of Rodney Hansen J in Buis v ACC,[2] which affirmed a line of authority that the costs of counsels’ travel will not be reasonable where there is no special justification for instructing out of town counsel: Russell v Taxation Review Authority.[3] The following passage from the judgment of Fisher J appears in particular to be relevant:

The position is different in the High Court. It would be hard to argue necessity where there is an adequate choice of suitable counsel in the High Court centre involved and no other special justification for instructing out of town counsel. Of course that is only the starting point. Available experience and expertise is one obvious dimension. I hope that Gisborne practitioners will not take it amiss if I speculate that there would be few counsel there equipped to lead in a microbiology patent case. Another could be the location of the client. If the client comes from a different region the cost of transporting counsel from that region might well be outweighed by efficiencies gained during the preparatory stage. A third could be disqualifying associations between local counsel and the parties or issues at stake eg proceedings against a local lawyer.

[2] Buis v Accident Compensation Corporation (2000) 19 PRNZ 585 (HC).

[3] Russell v Taxation Review Authority (2002) 14 PRNZ 515.

[9] Fisher J concluded that in the circumstances of that case there were reasons which would justify payment of out of town counsel’s disbursements because the proceedings involved serious allegations of impropriety against the Commissioner of Inland Revenue and Auckland counsel previously acting for him.

[10] The approach which Fisher J took in Russell v Taxation Review Authority was followed by Chambers J in Taylor v Taite.[4] The approach taken in both of the cases which I have mentioned was followed by Gendall AJ in his decision in Ainsworth & Collinson Ltd v Edmunds,[5] where he made reference to both the cases of Russell v Taxation Review Authority and Taylor v Taite.  Gendall AJ also referred

[4] Taylor v Taite HC Rotorua M13/00, 30 July 2002. Chambers J concluded there were no particular circumstances present in that case which would justify instructing counsel from a distance and he

noted that there were Rotorua counsel (Rotorua being the city where the proceedings were filed and heard) who could have conducted the litigation on behalf of the plaintiff. While it was the plaintiff’s prerogative to instruct out of town counsel, she could not expect the defendant to contribute to such counsel’s travel costs.

[5] Ainsworth & Collinson Ltd v Edmunds (2009) 19 PRNZ 565 (HC).

to a decision of Clifford J in Commerce Commission v Bay of Plenty Electricity Limited.[6] That was apparently a case where litigation was dealt with in Wellington and the successful party sought the disbursements incurred through Auckland counsel being retained. That judgment emphasised the particular specialist skill and experience that the Auckland counsel had but also made some comments about whether the concept of “out of town counsel” was outdated.   In his judgment in

Ainsworth & Collinson Ltd v Edmunds, Gendall AJ was not prepared to accept that the concept of “out of town” counsel has lost its relevance:[7]

I do not consider that the concept of “out of town” counsel has lost its relevance in the context of relatively routine matters such as the present application to set aside a statutory demand that does not necessarily require resolution of complex legal issues.

[6] Commerce Commission v Bay of Plenty Electricity Limited, HC Wellington, CIV-2001-485-917, 4 December 2008.

[7] Ainsworth & Collinson Ltd, above n 5, at [9].

[11] I consider that the decisions in Russell v Taxation Review Authority, Taylor v Taite and Ainsworth & Collinson Ltd v Edmunds continue to state the correct position. As noted above, they were also applied by Hansen J in his decision in Buis v ACC where the Judge agreed that the cost of counsel’s travel will not be reasonable where there is no special justification for instructing out of town counsel.

[12] No circumstances have been indicated in the present case which would justify the Court viewing the present case as being exceptional. The proceeding was of moderate complexity because of the numerous issues and the multiplicity of parties. Nonetheless, there were doubtless counsel in Auckland who could have been instructed. That does not derogate from the fact that the case for the first to fourth defendants was presented in an efficient and skilful way.

[13] It was suggested for the defendants that the fact that one of the principal officers of the relevant part of the Presbyterian Church resides in Wellington would justify the retainer of Wellington-based counsel and therefore justify the travel costs of that counsel from Wellington to Auckland for the defended hearing. I do not agree that this constitutes a reason why the plaintiffs should be required to pay for those travel costs. Even though the church officer in question, Mr Martin Baker who is  described  as  the  Executive  Secretary,  is  based  in  Wellington,  it  does  not

necessarily follow that he restricts himself entirely to carrying out his duties in that city and that an opportunity would not have presented itself for him to be available for briefing in Auckland while he was in that city in the course of his work.

[14] It was also said that the long-standing legal adviser of the church is based in the Wellington offices of Buddle Findlay and that that was another reason justifying the retention of counsel from the same office. In my view it is a matter of assessing the reasonableness of that proposition when making a final determination on the question of whether the travel costs for counsel ought to be ordered against the plaintiffs. I am not persuaded that it is a factor which would justify such an order. Opportunities for telephone and video conferencing and the electronic managing of documents leave me doubtful that this is a compelling reason why counsel had to be be based in the Wellington office of Buddle Findlay.

[15] For those reasons, this is not a case where the  defendants  ought  to  be expected to pay the expenses of out of town counsel and I disallow those items in the schedule of disbursements which the first to fourth defendants have claimed. Apart from disbursements in this category the other disbursements are approved.

J.P. Doogue

Associate Judge