Clotworthy v The Appeals Tribunal Appointed by the Judicial Control Authority HC Auckland CIV 2007-404-007224

[2008] NZHC 2282

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-007224

UNDER  The Declaratory Judgments Act 1908

AND UNDER                 The Judicature Amendment Act 1972 and

1977

AND UNDER                 The High Court Rules Part VII

BETWEEN  KIM FROOD CLOTWORTHY Plaintiff

ANDTHE APPEALS TRIBUNAL APPOINTED BY THE JUDICIAL CONTROL AUTHORITY

First Defendant

ANDJ M MCKENZIE Second Defendant

Hearing:         31 March 2008

Appearances: WW Peters for Plaintiff

J McBride for Defendants

Judgment:      29 April 2008 at 9:30 am

JUDGMENT OF ASHER J

This judgment was delivered by me on 29 April 2008 at 9:30 am pursuant to Rule 540(4) of the High Court Rules

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Registrar/Deputy Registrar

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Date

Solicitors:

WW Peters & Associates, PO Box 5053, Whangarei

Bell Gully, PO Box 1291, Wellington

CLOTWORTHY V THE APPEALS TRIBUNAL AND ANOR HC AK CIV 2007-404-007224  29 April 2008

[1]      The second defendant seeks costs in relation to an application for judicial review which has been discontinued by the plaintiff.   The second defendant seeks costs  on  a  2B  basis  but  further  seek  increased  costs  of  100 percent  under r 48C(3)(b)(ii) of the High Court Rules.   I have received memoranda from both parties, and from both memoranda in reply.

[2]      The judicial review proceeding relates to charges brought against the plaintiff and his son under the Rules of Racing, who trained in the partnership.  As a result of the charges, the plaintiff’s licence was suspended  for four months, to run from

17 December 2007 to 26 March 2008.  This period took into account the period for which the plaintiff’s licence had already been suspended.

[3]      The judicial review proceeding was  filed on 21 December 2007 but  not served until 29 January 2008.  An application for interim orders was heard by Potter J on 18 February 2008.   She reserved her decision.   On 25 February 2008, she declined the application.   She awarded costs against the plaintiff in favour of the defendants on a 2B basis.

[4]      The basis of the defendants’ claim for increased costs is that the application for judicial review was “singularly lacking in merit”.   The plaintiffs had already made an application for judicial review.  It is submitted that an order of twice the usual costs is appropriate.  The second defendant points to correspondence where at an early stage the plaintiff was invited to discontinue or face an application for indemnity costs.

[5]      In reply, the plaintiff accepts that costs on a standard 2B basis of $3,200 should be awarded in favour of the second defendant, but opposes the award of increased costs.  The plaintiff points out that costs must be assessed without regard to the unsuccessful application for interim orders, as costs have already been ordered on that matter.   The costs awarded there were scale costs, despite the plaintiff’s failure.

[6]      The proceeding was unexceptional.  The file discloses an orthodox exchange of pleadings and a lack of preliminary steps, save for the application for interim orders.

[7]      Rule 48C(3)(b)(ii) provides:

(3)      The Court may order a party to increase costs if –

(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in the proceeding by –

(ii)      taking  or  pursuing  an  unnecessary  step  or  an argument that lacks merit.

[8]      Not every argument that fails for lack of merit will result in an order under r 48C(3)(b)(ii); the failed argument must have contributed unnecessarily to the time or expense of the proceeding.  In the interim order decision, Potter J held that the claim was singularly lacking in merit.  But its lack of merit is not reflected in any particular attendances or extra wastage of time.

[9]      The particular concern in this case is that any costs awarded over and above the standard scale costs would not reflect the minimal nature of the required attendances.   While undoubtedly a lot of work was involved in opposing the application for interim orders, that was a separate matter from this proceeding.  Here the attendances appear to have been entirely orthodox and indeed quite limited.  The possibility of a discontinuance was flagged by the plaintiff at an early stage.  Any award on a higher basis would be inconsistent with the approach taken by Potter J.

[10]     I am not satisfied that there should be an award in excess of the scale.  I note that the first defendant has abided by the decision of the Court.  Costs are awarded in favour of the second defendant on a 2B basis.  The application for increased costs is declined.   So, also is the request of the plaintiff to reduce the duration of some attendances.  A general order is appropriate on a “swings and roundabouts” basis.

Result

[11]     The plaintiff is to pay the second defendant’s costs on a 2B basis.

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Asher J