Clark v Smith

[2019] NZHC 1782

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-12

[2019] NZHC 1782

IN THE MATTER

of an Appeal against a restraining order pursuant to s 9 of the Harassment Act 1997

BETWEEN

JOHN WILSON CLARK

Applicant

AND

JASON SMITH

First Respondent

JODIE MOORE

Second Respondent

Hearing:

On the papers

Counsel:

Appearance:

BA Edwards for respondents

JW Clark, applicant in person

Judgment:

26 July 2019

JUDGMENT OF FITZGERALD J

[As to costs on abandoned appeal]

This judgment was delivered by me on 26 July 2019 at 3:45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Straighttalk Law, Tauranga To:        J Clark, Tauranga

Clark v Smith [2019] NZHC 1782 [26 July 2019]

Introduction and background

[1]    In a judgment delivered on 15 August 2018, Judge Ingram in the District Court at Tauranga made a restraining order against the appellant (Mr Clark) pursuant to the Harassment Act 1997.1 The underlying issue which gave rise to the restraining order was what the Judge accepted to be Mr Clark’s ongoing harassment of the respondents (who live in a neighbouring property to Mr Clark), as a result of Mr Clark’s displeasure at the respondents’ vehicles being parked in the street on which his property is located.

[2]    Mr Clark subsequently applied to discharge the restraining order. That application was heard by Judge Mabey QC on 16 January 2019.2 In the Judge’s decision dismissing Mr Clark’s application, he observed that the complaints raised were more appropriately the subject of an appeal. The Judge also made a costs award against Mr Clark.

[3]    On 11 February 2019, Mr Clark (who has represented himself throughout) filed a notice of appeal with this Court against the decisions of Judge Ingram and Judge Mabey. Given his appeal was, however, filed out of time, he needed leave. He accordingly also filed an application for leave to appeal and an application for an order staying enforcement of the costs award. I will refer to the notice of appeal, the application for leave to appeal and the application for a stay of enforcement collectively as “the appeals”.

[4]    The respondents filed a notice of opposition to the application for leave to appeal out of time and for a stay of enforcement of the costs award.

[5]    The appeals were the subject of a case management conference before Edwards J on 11 April 2019, at which her Honour made various timetabling directions. The Judge ordered that the appeals be heard and determined at a half-day hearing on Friday 12 July 2019. She also categorised the appeals as category 1 for costs purposes. As is standard on appeals to this Court, Mr Clark was also ordered to pay security for costs, in an amount of $1,115. Edwards J made an order deferring payment of that

1      Smith v Clark [2018] NZDC 19119.

2      Smith v Clark [2019] NZDC 566.

amount, however, pending determination of Mr Clark’s then extant application for legal aid.

[6]    A second case management conference was convened before van Bohemen J on 24 May 2019. Mr Clark had not secured civil legal aid and confirmed he would continue to represent himself. At the conference, the Judge raised with Mr Clark the need to pay the security for costs. He made an order that if it was not paid by 10 June 2019, his appeals would be deemed abandoned.

[7]This led to Mr Clark filing a notice of discontinuance on 30 May 2019.

[8]    The respondents now seek costs on the discontinued appeals. Ms Edwards, counsel for the respondents, has filed a memorandum seeking costs totalling $2,812, based on a 1B categorisation. The respondents claim costs for the commencement of a response to an appeal, and preparation for and attendance at the two case management conferences.

[9]    Mr Clark opposes any award of costs. He says costs of the appeals should lie where they fall. In an affidavit filed in support of his opposition, he refers to what he says are a large number of false and untrue statements contained in the respondents’ original application to the District Court for a restraining order, and over 40 false and untrue statements in the notes of evidence from the District Court hearing. He further says that it was solely due to security for costs being ordered, but unaffordable, that he has had to discontinue these proceedings.

Discussion

[10]   Rule 20.12(2) of the High Court Rules 2016 provides that if an appellant signs, files and serves on every other party a statement to the effect that he or she abandons the appeal, the appeal is taken to have been dismissed, subject to a respondent’s right to apply for an order as to costs. Accordingly, Mr Clark’s notice of discontinuance has the result that the appeals are dismissed, subject to the respondents’ right to apply for costs – a right which they have exercised.

[11]   I am also mindful of the ordinary approach to costs on the discontinuance of proceedings, namely the presumption that a discontinuing plaintiff will be required to pay the costs of the discontinued proceedings. In this context, r 15.23 provides:

15.23   Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[12]McGechan on Procedure summarises the applicable principles as follows:3

(a)The r 15.23 presumption obviates any requirement for the defendant to demonstrate that the plaintiff acted unreasonably in commencing and then discontinuing the proceeding. The defendant has the advantage of the presumption even where there has not been such unreasonableness.

(b)Although the r 15.23 presumption is designed to give a certain and predictable outcome upon discontinuance, it may be displaced if the court finds there are circumstances which make it just and equitable that it should not apply.

(c)Although the court is not limited in the factors it may take into account when considering whether the presumption is displaced, generally:

(i)The court will not consider the merits of the respective cases, unless they are so obvious that they should influence the costs outcome.

(ii)The court will consider the reasonableness of the stance of both parties up to the point of discontinuance: whether it was reasonable for the plaintiff to bring and continue the proceeding; and for the defendant to oppose the proceeding. The plaintiff will not be able to avoid the presumption by showing that at one point it had reasonable grounds for believing it would be successful in the proceeding.

(iii)The reason for discontinuing may be relevant, for example a change of circumstances rendering the proceeding unnecessary. However, it must be clear that the plaintiff would have succeeded had the circumstances (in this case new legislation) not changed: The Star Trust v Hamilton City Council [2016] NZHC 821 at [10].

(d)The court’s general discretion in r 14.1 as to costs can also override the general principles relating to discontinuance.

3      R Osborne and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR15.23.01].

[13]   I have found these principles of assistance when considering the respondents’ application for costs.

[14] As noted at [9] above, a key reason why Mr Clark says he should not now be ordered to pay costs is what he says are numerous misleading statements made in both the respondents’ application for a restraining order and in their evidence at the hearing in the District Court. Mr Clark accordingly says there was sufficient evidence to support his appeal. He says that in this context, given he had made efforts to resolve matters through discussion with the respondents, and he has had to abandon the appeal solely because of the requirement to pay security for costs, it would be an “insult to injury” for the respondents to be awarded costs.

[15] The difficulty is, however, that this Court is simply not in a position to assess the merits or otherwise of Mr Clark’s proposed appeal. Indeed, it is almost impossible to do so in circumstances where an appeal has been abandoned before being heard. Hence the guidance set out at [12] above that the Court will generally not inquire into the merits of a claim when considering costs on discontinued proceedings – unless it is so obvious that they should influence the question of costs. That is not the case here. Further, while Mr Clark’s appeal would have proceeded by way of a rehearing in accordance with the principles in Austin, Nichols & Co Inc v Stitching Lodestar4 (pursuant to which an appeal court is required to form its own view on the evidence given before the lower court), the Supreme Court has recently re-emphasised that even in that context, an appellate court must take into account any advantages the trial court may have had – in particular, the ability to assess competing oral evidence first hand over the course of a trial.5

[16]   It is unfortunate Mr Clark’s inability to pay security for costs has driven him to abandon his appeals. But security for costs on appeals is the norm.  Respondents to appeals already have a formal court judgment in their favour. Security provides some protection from potentially unmeritorious appeals being pursued, and the inevitable costs incurred by respondents in responding to them. Moreover, exceptional

4      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

5      Sena v Police [2019] NZSC 55, at [38], [40].

circumstances will be required before security is waived. Impecuniosity by itself does not justify a waiver.

[17]   Accordingly, I conclude that there is nothing which warrants costs on the abandoned appeals in this case lying where they fall. There will be a costs award in the respondents’ favour.

[18]   The next question is the quantum of the costs to be awarded. As noted, the respondents seek costs for the commencement of opposition to an appeal and preparation for and attendance at the two case management conferences, all on a 1B basis.

[19]   I consider that costs ought to be awarded based on a 1A categorisation, rather than 1B. The matters for which costs are claimed were straightforward, such that a comparatively small amount of time for each step is reasonable.6

[20]   I also do not agree that costs should be awarded for the commencement of opposition to an appeal. Rather, the respondents filed a notice of opposition to the application for leave to appeal out of time and for a stay of enforcement of the costs award. I consider the appropriate step for this is to apply, by analogy, step 23, filing opposition to an interlocutory application. I agree that the respondents should have costs for preparation for and attendance at the two case management conferences.

Result

[21]   There is accordingly a costs award in the respondents’ favour against Mr Clark in the sum of $1,924, as set out in the schedule attached to this judgment.7

Fitzgerald J

6      High Court Rules 2016, r 14.5(2)(a).

7      Of course, to the extent the respondents’ actual costs are lower than this, only those (lower) actual costs will be payable; High Court Rule 14.2(f).

SCHEDULE

Step taken	Rate	Costs award
Step 23 – filing opposition to interlocutory application	0.3	$444
Step 10 – preparation for first case management conference	0.2	$296
Step 11 – filing memorandum for first or subsequent case management conference	0.2	$296
Step 13 – appearance at first or subsequent case management conference	0.3	$444
Step 13 – appearance at first or subsequent case management conference	0.3	$444
Total costs		$1,924