Clayton v Currie
[2017] NZHC 1898
•10 August 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2011-409-1178 [2017] NZHC 1898
IN THE MATTER of the New Zealand Bill of Rights Act
1990
BETWEEN
VINCENT JAMES CLAYTON First Plaintiff
LINDA JOYCE WESTBURY Second Plaintiff
AND
PHILIPPA ANNE CURRIE First Defendant
RAYMOND DONNELLY & CO Second Defendant
CROWN SOLICITOR AT CHRISTCHURCH
Third Defendant
ATTORNEY-GENERAL OF NEW ZEALAND
Fourth Defendant
CIV-2013-409-1441
IN THE MATTER of the New Zealand Bill of Rights Act
1990
BETWEEN PETER LLOYD MACHIRUS First Plaintiff
NADIA MAVANA PELENATO Second Plaintiff
GARY GEORGE MORELL Third Plaintiff
… continued
VINCENT JAMES CLAYTON v PHILIPPA CURRIE [2017] NZHC 1898 [10 August 2017]
ANDPHILIPPA ANNE CURRIE First Defendant
RAYMOND DONNELLY & CO Second Defendant
CROWN SOLICITOR AT CHRISTCHURCH
Third Defendant
ATTORNEY-GENERAL OF NEW ZEALAND
Fourth Defendant
On the papers Counsel:
P N Allan for Mr Clayton and Ms Westbury
R W Maze for Mr Machirus, Ms Pelenato and Mr MorrellJ C Pike QC and S K Barr for Ms Currie, Raymond Donnelly and Co, Crown Solicitor at Christchurch and Attorney-General S M Kinsler and S K Shaw for Commissioner of Police (1178) R E Schmidt-McCleave for Legal Complaints Review Officer (1178)
Judgment:
10 August 2017
JUDGMENT OF THOMAS J
Introduction
[1] By my decision dated 15 June 2017:1
(a) the defendants’ application for summary judgment was dismissed;
(b) the defendants’ application for security for costs was dismissed;
(c) the Clayton/Westbury application for further discovery was dismissed;
and
1 Clayton v Currie [2017] NZHC 1302.
(d)the Clayton/Westbury application for non-party discovery was dismissed.
[2] The Machirus application for interrogatories was withdrawn.
[3] In my judgment, I observed there would seem no reason why costs on a 2B basis should not follow the event in respect of each application, save as against Ms Westbury, who is legally aided. This decision now addresses the various memoranda filed by the parties and non-parties for costs.
[4] The analysis is undertaken in light of the High Court Rules 2016. Costs are discretionary.2 The principles applying to the determination of costs are:
14.2 Principles applying to determination of costs
The following general principles apply to the determination of costs:
(a) the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:
(b) an award of costs should reflect the complexity and significance of the proceeding:
(c) costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:
(d) an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:
(e) what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs:
(f) an award of costs should not exceed the costs incurred by the party claiming costs:
(g) so far as possible the determination of costs should be predictable and expeditious.
[5] The position is slightly different as between the two sets of proceedings, the first involving Mr Clayton and Ms Westbury, Ms Westbury being legally aided, and
2 High Court Rules 2016, r 14.1.
the second involving Mr Machirus, Ms Pelenato and Mr Morell. The latter plaintiffs were not involved in the discovery applications. For that reason, I will deal with costs on a proceeding by proceeding basis.
Clayton and Westbury proceedings (CIV-2011-409-1178)
[6] The plaintiffs’ two causes of action are in misfeasance and breach of the New Zealand Bill of Right Act 1990. The defendants’ application for summary judgment was dismissed. I accept Mr Allan’s submission to the effect summary judgment was refused, relying principally on the existing Court of Appeal decisions involving the parties. The position can be distinguished from that of the other proceedings involving Machirus, Pelenato and Morell.
[7] On this basis, Mr Allan submits it would be unfair simply to take the view costs should lie where they fall on the basis Mr Clayton had successfully defended two applications (summary judgment and security for costs), but been unsuccessful in his two applications regarding discovery. Mr Allan submits Mr Clayton should recover costs against the defendants of $6,913.
[8] The defendants submit they should be liable to Mr Clayton for costs totalling
$1,172.08 only. They have calculated this sum by setting out separate calculations for each plaintiff under each of the applications, including “unless orders” relevant to Ms Westbury.
[9] The defendants have calculated costs on the plaintiffs’ successful opposition to the defendants’ summary judgment application as $3,679.50 for each plaintiff, dividing the time equally between the two of them.3 The defendants have attributed
1.2 days’ hearing time to the summary judgment proceedings. As I read the rules, step 26, appearance at hearing, is calculated on the basis of time occupied by the hearing measured in quarter days. This increases the amount for each plaintiff by
$55.75. As the application for security for costs was in respect of Mr Clayton only
(Ms Westbury being legally aided), they have calculated his entitlement as
$3,128.60.
3 Following the approach in Willis v Attorney-General HC Auckland CP1626/88, 14 March 1990 given Ms Westbury is in receipt of legal aid.
[10] In respect of the two applications where the plaintiffs were unsuccessful (further discovery and non-party discovery), the defendants have followed the same approach of dividing the time equally between the two plaintiffs, notwithstanding the submissions made by the third parties that, unless the Court otherwise directs, the liability of each of two or more parties is joint and several.4 Again, the matter of quarter days arises. The defendants have claimed 0.3 days for the discovery proceedings. This should be 0.25 days, split between Mr Clayton and Ms Westbury. That reduces the defendants’ costs in this part of the proceedings by $55.75 for each
plaintiff.
[11] As between the plaintiffs and the defendants, I accept the approach taken by the defendants is appropriate. For this reason, the defendants are liable to pay Mr Clayton costs totalling $1,283.58.
[12] Ms Westbury in fact ends up on the wrong side of the ledger in the amount of
$3,538.80, given costs for which she could have been liable in respect of unless orders. As she is in receipt of legal aid, it is appropriate costs lie where they fall.
Commissioner for Police
[13] The Commissioner for Police seeks costs and disbursements of $8,312.38. The Commissioner does not accept Mr Clayton should be required to contribute half only of the costs as a result of Ms Westbury’s immunity as a legally aided party. The Commissioner does not contend there are exceptional circumstances which would warrant an award of costs against Ms Westbury.
[14] However, the Commissioner relies on the presumption of joint and several liability for costs. He refers to the case of Curtis v Gibson,5 where one of two parties
was legally aided but full costs were awarded against the non-aided party.
4 Rule 14.14.
5 Curtis v Gibson [2014] NZHC 969 at [22]–[25].
[15] I do not accept the argument put forward on behalf of Mr Clayton that Ms Westbury alone could have made the application for non-party discovery and the result would have been no costs would have been awarded against him. That would clearly have been a ruse to avoid costs and the exceptional circumstances test in s 45 of the Legal Services Act 2011 might well have been made out.
[16] The Court of Appeal recently said in relation to r 14.14:6
[24] … While the default position under r 14.14 of the High Court Rules is joint and several liability among defendants, that is subject to the Court's overriding discretion. In our view, where the case is out of the ordinary in some significant way, consideration must be given to whether to alter that burden. In particular, where costs are not sought against one unsuccessful defendant, it does not follow that the other should be liable for the whole scale measure of costs. Likewise where a defendant has taken a reduced part in opposing judgment such as by abiding the outcome or admitting the cause of action.
[17] In my assessment, this case is not significantly out of the ordinary. The plaintiffs chose to seek non-party discovery and expose themselves to the risk of costs. The application sought irrelevant material and the scope of the orders sought was unreasonable. I see no reason why the Commissioner should not be entitled to full costs for which Mr Clayton is jointly and severally liable. This is different from the approach taken by the defendants in dividing costs between Mr Clayton and Ms Westbury, but that is because as between the plaintiffs and defendants there were applications where the plaintiffs were successful and some where they were not. In saying that, however, the defendants did not seek to pay one-half only of the costs on matters where they were unsuccessful but recover against Mr Clayton all the costs when they were successful. Such an approach would have been open to them given to r 4.14 and Ms Westbury’s legal aid.
[18] I do, however, agree that the plaintiffs should not be liable for the wasted costs incurred by the Commissioner in respect of the hearing scheduled for
30 November 2016, which was abandoned on commencement given the ill-health of
counsel for the plaintiffs in the Machirus proceedings. I accept the Commissioner’s
position that the costs were incurred and no prior warning was provided to the
6 Hong v Deliu [2016] NZCA 75, [2016] NZAR 667 (citations omitted).
Commissioner. I also note the Commissioner is seeking reimbursement of travel costs only and not costs associated with counsel’s time.
[19] Mr Kinsler, for the Commissioner, suggests the Commissioner would not have been involved were it not for the Clayton plaintiffs and there was a high degree of coordination between the Machirus and Clayton plaintiffs. In those circumstances, Mr Kinsler submits it is appropriate for Mr Clayton to bear the cost. The fact is the costs were wasted as a result of the illness of counsel in the Machirus proceedings. A wasted costs order against those plaintiffs is appropriate and is addressed in further detail below.
[20] For these reasons, costs and disbursements of $7,828.91 are awarded to the Commissioner against Mr Clayton, that is, the claimed costs less the cost of air travel on 30 November.
Legal Complaints Review Officer
[21] The same position applies as regards the non-party costs of the Legal
Complaints Review Officer, and for the same reasons.
[22] In respect of these costs, I accept the submission of Ms Schmidt-McCleave that it was always difficult to see any merit in the application given the presumption of privacy inherent in the Lawyers and Conveyancers Act 2006.
[23] Mr Clayton is to pay total costs and disbursements of $7,300.65, the balance of the claim, and $366 for air travel on 30 November, being payable by the plaintiffs in the Machirus proceedings.
Machirus proceedings (CIV-2013-409-1441)
[24] The plaintiffs seek costs of $10,815.50 in respect of the defendants’
application for summary judgment and application for security for costs.
[25] The defendants accept the costs calculation, but submit costs ought to be offset by the costs incurred by the defendants in respect of interrogatories and unless orders dealt with by the Associate Judge. However, the unless orders were not dealt with by me and I do not have the necessary background to deal with them. Therefore, I put that aspect of the application to one side and it is a matter which can be raised with the Associate Judge if necessary.
[26] The defendants, dividing costs equally between the three plaintiffs, have calculated a shortfall, including costs sought on unless orders, of $2,068.31 for each plaintiff (total $6,204.93).7 Overall, they submit costs should lie where they fall.
[27] If the unless orders claim is set aside, this results in an award to each plaintiff of $1,416.07 ($4,248.21 total). This comprises $6,021 for the summary judgment,8
$3,345 for the security for costs, less $5,117.79 for the plaintiffs’ abandoned interrogatories. I am satisfied that is the appropriate award to the plaintiffs, subject to a slight increase to reflect the correct total hearing time allocation.
[28] As mentioned above, however, the plaintiffs need to bear the wasted costs of the Commissioner for Police ($483.47) and Legal Complaints Review Officer ($366) in respect of the hearing abandoned on 30 November 2016.
Result
[29] For the reasons set out above, costs are awarded on the following basis:
Clayton/Westbury proceedings (CIV-2011-409-1178)
Defendants to pay Mr Clayton $1,283.58
Mr Clayton to pay Commissioner of Police $7,828.91
Mr Clayton to pay Legal Complaints Review Officer $7,300.65
7 Again, this is understated in respect of the time allocation for attendance at the hearing.
8 There is no allowance for filing of notices of opposition as none was filed in respect of the summary judgment and the notice in respect of security for costs was filed before counsel was instructed.
Machirus proceedings (CIV-2013-409-1441)
Defendants to pay plaintiffs $4,359.71
Plaintiffs to pay Commissioner of Police $483.47
Plaintiffs to pay Legal Complaints Review Officer $366.00
Thomas J
Solicitors:
Patient & Williams, Christchurch for Mr Clayton and Ms Westbury
S B Law, Christchurch for Mr Machirus, Ms Pelenato and Mr Morell
Crown Law, Wellington for Defendants
Meredith Connell, Wellington for Commissioner of PoliceOffice of Legal Counsel, Ministry of Justice, Wellington for Legal Complaints Review Officer
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