Cropp v Welch

[2013] NZHC 1401

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-7040 [2013] NZHC 1401

BETWEEN  LISA KATHRYN CROPP Plaintiff

ANDPHILIP HENRY MATHIE WELCH First Defendant

A JUDICIAL COMMITTEE Second Defendant

BRYAN FRANCIS McKENZIE Third Defendant

Hearing:                   12 June 2013

Counsel:                  No appearance by, or on behalf of Plaintiff

No appearance by, or on behalf of First and Second Defendants
A Longdill for Third Defendants

Judgment:                12 June 2013

(ORAL) JUDGMENT OF HEATH J

CROPP v WELCH [2013] NZHC 1401 [12 June 2013]

[1]      On 7 July 2006, Baragwanath J gave judgment on Ms Cropp’s application to

review a decision to appoint a judicial committee under the Racing Act 2003.[1]

Ms Cropp, a jockey at the time, had been charged under the Rules of Racing with riding with methamphetamine in her urine or alternatively that the urine sample contained methamphetamine in breach of a particular rule.

[1] Cropp v Welch HC Auckland CIV 2005-404-7040, 7 November 2006.

[2]      In  a  careful  and  considered  judgment,  Baragwanath  J  dismissed  the application.  He reserved leave to the judicial committee (comprising Mr Hall and Mr Welch)  and  the  race  course  inspector,  Mr  McKenzie,  to  apply  for  costs  by memorandum. The time fixed for any application for costs was within 14 days of the

date of judgment, with Ms Cropp to respond within a further period of 14 days.[2]

[2] Ibid, para [83].

[3]      A memorandum seeking costs on behalf of Mr McKenzie was filed on 16

November 2006.  No application was made by the judicial committee.  No response was filed by Ms Cropp.  It appears that the memorandum on behalf of Mr McKenzie was put before Baragwanath J before his retirement from the Bench in August 2010.

[4]      In a Minute of 25 June 2010, the Judge made a direction giving Ms Cropp “reasonable time to reply” and indicating that another Judge would need to deal with the application, if he were not able to do so prior to his retirement.  That direction was made notwithstanding a memorandum dated 15 December 2006 from Mr Shaw, who then acted as counsel for Ms Cropp.   Mr Shaw resisted an application for indemnity or increased costs and submitted that if any were to be awarded they should be according to scale on a 2B basis.

[5]      It appears that difficulties caused by a member of the Registry staff leaving, left the application in abeyance, and undetermined.   Having said that, it does not appear that any steps were taken on behalf of Mr McKenzie to ensure his application was referred to a Judge until a formal application was filed on 22 May 2013 seeking

costs. That formal application sought either indemnity or increased costs.

[6]      While  it  appears  that  Ms  Cropp  has  not  been  served  with  the  present application, her counsel at the time of the substantive hearing, Mr Shaw, having been forwarded the application as a courtesy by the solicitors for Mr McKenzie, has filed a memorandum identifying some points of concern with regard to the making of any costs orders. As Mr Shaw is without instructions, I treat his memorandum as akin to that given by amicus curiae.

[7]      At  the  beginning  of  today’s  hearing,  I  indicated  to  Ms  Longdill,  for Mr McKenzie, that  I would  not  be prepared  to  make an  order for increased  or indemnity costs today.  In my view, any application of that sort would require a full hearing.  Nevertheless, I indicated that because Ms Cropp had been on notice of the original claim for costs and a memorandum had been filed earlier by Mr Shaw, I would be prepared to make an order for costs on a 2B basis, subject to a right to Ms Cropp to apply to set aside or vary the order on application made on notice to Mr McKenzie no later than seven days after service of it on her.   Ms Longdill indicated that her instructions were to have the proceeding resolved today and amended the claim for costs to one made on a 2B basis.

[8]      Given that Ms Cropp was aware of the claim for costs and Mr Shaw had responded  by opposing  indemnity and  increased  costs,  I propose  to  proceed  as indicated initially to Ms Longdill.  There is no reason to deny the successful litigant costs and no clear basis on which the direct increased or indemnity costs in terms of the principles articulated in Bradbury v Westpac Banking Corporation.[3]

[3] Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400 (CA).

[9]      I make an order that Ms Cropp pay the costs of Mr McKenzie in relation to this proceeding on a 2B basis, together with reasonable disbursements.   Both the costs and the disbursements shall be fixed by the Registrar.

[10]     Ms Cropp shall be served personally with the costs order.  The order may not be enforced for a period of seven days from the date on which Ms Cropp is served.

If she were to apply within that time to set aside or vary the order, the prohibition on

enforcement  continues.     If  no  application  were  made,  the  order  may  then  be

executed.

Solicitors:

Meredith Connell, Auckland

Copy to:

A Shaw, Wellington

P R Heath J