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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 1782
Decision Date: 26 July 2019

CaseChat Overview and Summary

The High Court of New Zealand, Tauranga Registry, heard an appeal by John Wilson Clark against a restraining order made against him by the District Court. The restraining order was a result of Mr Clark's alleged harassment of his neighbours, Jason Smith and Jodie Moore, due to his displeasure with their vehicles parked on the street. The respondents now sought costs on the abandoned appeals. The court considered the appeal and the application for leave to appeal and a stay of enforcement of the costs award collectively as “the appeals”. The appeals were the subject of a case management conference before Edwards J, who made various timetabling directions. The appeals were then heard and determined at a half-day hearing on 12 July 2019. The court found that the appeals were dismissed, subject to the respondents’ right to apply for costs, a right which they had exercised.

The court examined the principles and rules applicable to costs on discontinued proceedings and found that the presumption was that a discontinuing plaintiff would be required to pay the costs of the discontinued proceedings. The court also found that it would generally not inquire into the merits of a claim when considering costs on discontinued proceedings, unless they were so obvious that they should influence the question of costs. The court concluded that there was nothing which warranted costs on the abandoned appeals in this case lying where they fall and that there would be a costs award in the respondents’ favour.

The court then considered the quantum of the costs to be awarded and found that the appropriate categorisation was 1A rather than 1B. The matters for which costs were claimed were straightforward, such that a comparatively small amount of time for each step was reasonable. The court also found that costs should not be awarded for the commencement of opposition to an appeal but rather, for the preparation for and attendance at the two case management conferences. The court accordingly made a costs award in the respondents’ favour against Mr Clark in the sum of $1,924.

In conclusion, the High Court of New Zealand, Tauranga Registry, dismissed the appeal and ordered costs in the respondents' favour against Mr Clark. The court found that there was nothing which warranted costs on the abandoned appeals in this case lying where they fall and that the appropriate categorisation for the costs was 1A rather than 1B. The court also found that costs should not be awarded for the commencement of opposition to an appeal but rather, for the preparation for and attendance at the two case management conferences. The court made a costs award in the respondents' favour against Mr Clark in the sum of $1,924.

Orders