Clarke v Police

IN THE COURT OF APPEAL OF NEW ZEALAND
CA222/06
[2007] NZCA 294
BETWEENNEIL MARTIN CLARKE

Applicant

ANDNEW ZEALAND POLICE

First Respondent
ANDCOREY WATTS

Second Respondent
ANDCHUBB SECURITY LIMITED

Third Respondent

Hearing:14 May 2007

Court:William Young P, Glazebrook and Wilson JJ
Counsel:J McGuire for Applicant

D G Dewar and M A Robertson for Respondents

Judgment:14 May 2007
Reasons:17 July 2007

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
BThe applicant is ordered to pay costs to the respondents in the total sum of $750.

____________________________________________________________________
REASONS OF THE COURT
(Given by Wilson J)
Introduction
[1]       The applicant sought special leave to appeal to this Court against a costs decision of Associate Judge Gendall delivered in the High Court on 9 March 2006.
[2]       At the conclusion of the hearing, we dismissed the application for want of jurisdiction and said that we would provide our reasons later.
[3]       We now do so.
Jurisdiction
[4]       In the decision in respect of which leave to appeal is sought, the Associate Judge ordered the applicant to pay costs and disbursements to the second and third respondents in the amounts of $4,680 and $6,110 respectively.
[5]       In making this order, the Judge was plainly exercising the jurisdiction conferred on him by s 26J of the Judicature Act 1908 and was as a matter of law doing so in Chambers rather than in Court.
[6]       Section 26P(1) requires that any challenge to such a decision be by way of an application for review of the decision by a Judge of the High Court in accordance with Rule 61C of the High Court Rules.
[7]       It follows that this Court does not have jurisdiction to grant leave to appeal to it against the decision of the Associate Judge.
Costs
[8]       The respondents sought costs on the present application.
[9]       The applicant was refused legal aid and did not appeal against that decision.
[10]     The applicant opposed any order for costs on the ground that the second respondent is receiving financial support from the Police Association.
[11]     We do not see that as a ground for refusing costs, just as it would not be a reason for refusing costs to the applicant if he had been successful.
[12]     We therefore order the applicant to pay costs to the respondents in the total sum of $750.
Solicitors:
J McGuire for Applicant
Thomas Dewar Sziranyi Letts for Respondents

CaseChat Overview and Summary

In the case of Clarke v Police, the applicant, Neil Martin Clarke, sought special leave to appeal a decision made by Associate Judge Gendall in the High Court. The applicant challenged the Associate Judge's order for him to pay costs and disbursements to the second and third respondents, Corey Watts and Chubb Security Limited, respectively. The second and third respondents were awarded amounts of $4,680 and $6,110. The applicant's application for special leave to appeal was dismissed by the Court of Appeal of New Zealand, which was comprised of William Young P, Glazebrook, and Wilson JJ. The Court of Appeal held that it did not have jurisdiction to grant leave to appeal against the decision of the Associate Judge because such challenges must be made by way of an application for review of the decision by a Judge of the High Court in accordance with Rule 61C of the High Court Rules.

The Court of Appeal found that the Associate Judge was exercising jurisdiction under section 26J of the Judicature Act 1908, which allowed him to make the costs order in Chambers rather than in Court. The Court of Appeal held that, since the applicant had not followed the correct process for challenging the Associate Judge's decision, it did not have jurisdiction to hear the appeal. The respondents sought costs on the present application, and the applicant opposed any order for costs on the ground that the second respondent is receiving financial support from the Police Association. However, the Court of Appeal did not see this as a valid ground for refusing costs and ordered the applicant to pay costs to the respondents in the total sum of $750.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established