Christian v Bain

[2023] NZHC 424

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001818

[2023] NZHC 424

UNDER

the Defamation Act 1992

BETWEEN

GRAHAME CHRISTIAN

Plaintiff

AND

MURRAY IAN BAIN

Defendant

Hearing:	On the papers
Judgment:	7 March 2023

JUDGMENT OF WALKER J [COSTS]

This judgment was delivered by me on 7 March 2023 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

CHRISTIAN v BAIN [2023] NZHC 424 [7 March 2023]

[1]        This costs judgment follows my substantive judgment in this defamation claim.1 In that judgment, I held:

(a)Mr Bain was a joint tortfeasor in respect of publication of the articles in NZME print and website publications for the purposes of the law of defamation.

(b)The articles were defamatory of and concerning Mr Christian and bore some of the pleaded meanings.

(c)Mr Bain’s defence of responsible communication on a matter of public interest succeeded.

[2]         The result was that I dismissed Mr Christian’s claim.2 The parties have since been unable to resolve questions of costs.

[3]        In addition to costs on my substantive judgment, I now also determine costs on pre-trial interlocutory applications in which costs were reserved.

Memoranda filed

[4]        Mr Bain seeks costs of $169,092 and disbursements of $9,068 in respect of the substantive proceeding. This is primarily calculated in accordance with 2B costs, save for a small number of steps which are said to warrant 2C costs and one step warranting a 2A assessment. Mr Bain seeks a 50 per cent uplift on “scale” costs for the evidence and trial preparation phase.

[5]        Mr Christian argues that there should be no award of costs to Mr Bain or, alternatively, any costs award should be significantly reduced by approaching costs on an issue by issue basis. That is, awarding costs in respect of the defences on which Mr Bain succeeded. If the Court adopts this approach, Mr Christian argues that costs should be reserved pending the outcome of his appeal and Mr Bain’s cross-appeal to avoid redundancy.

1      Christian v Bain [2022] NZHC 3394.

2      It was unnecessary to determine the defence of honest opinion in those circumstances.

[6]        Mr Christian also seeks costs in respect of Mr Bain’s unsuccessful applications to strike out the claim, for a change in venue and to vacate the trial. He seeks costs on his own application for directions in respect of without prejudice correspondence which I ultimately found moot in view of my conclusion on the strike out application.

[7]        Mr Bain does not oppose an award nor the quantum of 2B costs on the first three applications but contends that he is entitled to costs on the application for directions.

Analysis

[8]        Costs are at the discretion of the Court.3 The overall objective is to achieve the outcome that best meets the interests of justice. Naturally, the discretion is not unfettered. It is qualified by the applicable cost rules. The exercise of discretion must be consistent with established principles. One…