Brady v Presbyterian Church of Aotearoa New Zealand

[2013] NZHC 864

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2549 [2013] NZHC 864

BETWEEN  LAISARINI HANIPALE BRADY First Plaintiff

ANDSO'OLEFAI FALE AND SOTIATA FALE Second Joint Plaintiffs

ANDLAISARINI HANIPALE, SOTIATA FALE AND LUPEMATASILA SIAOSI

Third Joint Plaintiffs

ANDLEOTA SENERITA HENDRIKSE AND EDWIN HENDRIKSE

Fourth Joint Plaintiffs

ANDTHE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND

First Defendant

ANDNORTHERN PRESBYTERY Second Defendant

ANDREVEREND TONY SPANDOW Third Defendant

ANDLES PARLANE, TEPU DEBBIE COOMBS AND FILEMONI FA'AVALE Fourth Defendants

ANDALISTAIRE HALL Fifth Defendant

Hearing:         4 March 2013 (on papers)

Appearances: Mr Illingworth QC and Ms Woodroffe for plaintiffs

Mr Barker and Ms De Joux for first to fourth defendants

Mr Corlett for fifth defendant

Judgment:      24 April 2013

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]

BRADY & ORS V THE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND & ORS HC AK CIV-

2012-404-2549 [24 April 2013]

[1]      I gave judgment in this proceeding on 8 February 2013.1    The parties have not been able to agree on costs and the matter has been referred back to me for decision.

[2]      The defendants were successful overall in striking out or obtaining summary judgment in respect of all causes of action which the plaintiffs brought.  They have submitted that the Court ought to award costs on a 2B basis together with 50 % uplift.  The plaintiffs, on the other hand, assert that no costs order ought to be made in respect to the first and second defendants, and as to the other defendants, costs ought to lie where they fall, or alternatively, be awarded on a 2B basis without an uplift.

First and second defendants were not incorporated bodies

[3]      The  submission  was  made  for  the  plaintiffs  that  consistently  with  the conclusion of the Court that the first and second defendants could not be sued because they were not incorporated entities, no costs order could be made on their behalf.  Reference was made to the decision in Hawke's Bay Bulk Gas Users Group v Commerce Commission,2 where a costs order was declined on the grounds that “neither judgment nor costs can be enforced by or against an unincorporated person, an entity which is unknown in law.”

[4]      I accept that submission which was made for the plaintiffs.

The costs application by the remaining defendants

[5]      The third to fifth defendants sought costs on a 2B basis with an uplift of 50% having regard to the matters stated in r 14.2 High Court Rules and the following rules in part 14.

[6]      The entitlement to costs in favour of those defendants was primarily founded on r 14.2(a).   I agree that because the plaintiffs failed in their applications for the

various interlocutory applications that they had brought, the starting point is that

1 Brady v Presbyterian Church of Aotearoa New Zealand [2012] NZHC 3526.

2 Hawke’s Bay Bulk Gas Users Group v Commerce Commission (1988) 4 NZCLC 64,147 (HC).

those  defendants  are  entitled  to  costs.    The  remaining  defendants  are  therefore entitled to costs in regard to the application for interlocutory injunction, an application for freezing order, and the summary judgment applications brought by and against them and as well the strikeout application brought against them.

[7]      The next issue is the extent of those costs.  I agree that in general terms the way in which the plaintiffs have conducted this litigation attracts the operation of r

14.6(3)(b)  HCR.     In  relation  to  the  interlocutory  application  for  an  interim injunction, I am of the view that sub rule “ii” applies.  While I accept that a party who fails to obtain the order that it seeks does not thereby expose itself to increased costs, in general terms the seeking of an interlocutory application which was at best a forlorn hope must be a legitimate matter to take into account either under sub rule (b) or (d).  It is a matter of balancing the right of the parties to have access to the Court to  have  their  grievances  resolved,  on  the  one  hand,  and  the  need  to  protect defendants from applications which do not have a substantial arguable basis on the other.  I consider that by bringing the interlocutory application for an injunction, the plaintiffs exposed the defendants to the unavoidable expense that would be incurred in opposing a meritless application.  The same can be said of the application for a freezing order.

[8]      It is also the case that  the application for summary judgment which  the plaintiffs brought involved arguments that lacked merit.   The claim for exemplary damages and the bringing of an application against an unincorporated entity fall into this category.  It is no answer for the plaintiffs to argue, as I understand they do, that it would have been possible for an application to be brought against the various individuals who are compendiously described as “the Presbyterian Church of Aotearoa New Zealand”.  They had not done so by the time the various interlocutory applications were commenced and they had still not done so by the time those applications were heard on a defended basis.

[9]      The plaintiffs point out that the third cause of action was withdrawn on the grounds that “subsequent to the filing of these proceedings, the second defendant confirmed that a new enquiry would be conducted in respect of the behaviour of the third defendant.”   However, the willingness of the Church to conduct a further

enquiry was known in advance of the point where the parties were required to prepare submissions and to appear in Court in support of their positions.  While in broad terms an agreement to convene a further enquiry might reflect a moral victory for the plaintiffs, it says nothing about the sustainability of proceedings based upon allegations that the Church negligently breached a duty of care that it owed to the plaintiffs in carrying out the first enquiry in the way that it did.   If that particular cause  of  action  had  not  been  abandoned,  it  seems  unlikely  that  it  would  have survived a strikeout/summary judgment application.

[10]    In broad terms, the plaintiffs seek to justify the position that they took in bringing  the  proceedings  on  the  grounds  that  they  were  morally  in  the  right. Whether that is correct or not is not something that can realistically be determined in the context of this costs application.  In broad terms, it is difficult to view the steps that the plaintiffs took in filing the sort of proceedings that they did as representing a sensible and proportionate way of resolving a schism that had arisen between the two blocs of worshippers at the Church.  If anything, the way in which the various causes of action were pleaded in the affidavits filed in support of them could only have had an inflammatory effect.   As well, the allegations that the plaintiffs had taken the moral high ground would very much be open to dispute by the defendants, given the complaints that had been made about assaults and disruptive conduct and insulting behaviour - all of which were charges that the defendants brought against several of the plaintiffs.  As well, while the Presbytery has agreed to carry out a further enquiry into the root cause of the problem, that is alleged misconduct on the part of the pastor, it would be quite wrong to assume that the plaintiffs’ criticisms will be upheld by the enquiry.

[11]     The inclusion of damages claims of $600,000 including exemplary damages is indicative of a lack of balance and perspective and may well have been actuated by the objective of causing concern and alarm to the defendants.

[12]    For all of these reasons I consider that the position which is taken by the defendants is correct and that an award of costs ought to be made on a 2B basis together with an uplift of 50%.  I have however already indicated my agreement with the submission for the plaintiffs that a cost award in respect of the first and second

defendants is not justified consistently with the authority of Hawke’s Bay Bulk Gas

Users Group.  There will be orders accordingly.

J.P. Doogue

Associate Judge