Curtis v The Museum of Transport & Technology Society HC Auckland CIV-2010-404-6476

[2011] NZHC 1704

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-6476

BETWEEN  ALAN JAMES CURTIS Applicant

ANDTHE MUSEUM OF TRANSPORT & TECHNOLOGY SOCIETY Respondent

Hearing:         By memoranda

Counsel:         D Grove for applicant

J Anderson for respondent

Judgment:      9 November 2011 at 9:30 AM

JUDGMENT OF LANG J [as to costs on discontinuance]

This judgment was delivered by me on 9 November 2011 at 9.30 am, pursuant to Rule

11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CURTIS V THE MUSEUM OF TRANSPORT & TECHNOLOGY SOCIETY HC AK CIV-2010-404-6476 9

November 2011

[1]      In this proceeding the applicant, Mr Curtis, sought judicial review of several decisions made by the respondent Society.  He initially applied for interim relief, but later withdrew that application.  The Society for its part belatedly filed a protest to jurisdiction but ultimately did not proceed with it.   The proceeding was initially allocated a three hour fixture on 9 February 2011.  This was subsequently changed to a two-day trial commencing on 21 September 2011.

[2]      The Society filed its affidavits in opposition to the application for judicial review on or about 21 July 2011.  Just over a month later, on 23 August 2011, Mr Curtis discontinued the proceeding.  No agreement having been reached as to costs, the Court is now required to determine that issue on the basis of the memoranda filed by counsel.

The arguments

[3]      The Society contends that it should receive an award of costs calculated on a Category 2B basis, but increased to reflect the fact that Mr Curtis took unnecessary steps in the proceeding.  It says that he applied for interim relief when there were no proper grounds for doing so, and he also unnecessarily contributed to the costs of the proceeding by filing an amended statement of claim.   This put the Society to unnecessary expense because it omitted several causes of action that the Society had already been forced to respond to.  In addition, the Society contends that Mr Curtis failed to comply with the Court’s timetable directions.

[4]      Mr Curtis accepts that the Society should receive an award of costs on a Category 2B basis.   He contends, however, that the award should be reduced to reflect  the  fact  that  the  Society only produced  a  critical  document,  namely the minutes of a meeting held by the Society on 20 September 2010, at a very late stage. Disclosure of this document was one of the catalysts for his decision to discontinue the proceeding.

Decision

Incidence of costs

[5]      The Society is clearly entitled to an award of costs in its favour because it ultimately succeeded in the proceeding.   One of the most important principles governing the costs regime under the High Court Rules is that the unsuccessful party should be required to contribute to the costs of the successful party.[1]    The Society was the successful party in this proceeding, because Mr Curtis ultimately elected to discontinue his application for judicial review.

[1] R 14.2(a).

[6]      There is no basis, however, for any award of costs in respect of steps taken by the  Society  in  relation  to  the  protest  to  jurisdiction,  because  the  Society  was ultimately the unsuccessful party in relation to that interlocutory issue.

Should Mr Curtis pay increased costs to the Society?

[7]      The costs to be awarded in favour of the Society obviously extend to the steps that it took to oppose the application for interim relief that Mr Curtis withdrew at an early stage.   I am not prepared to say, however, that Mr Curtis filed the application for interim relief seeking improperly to achieve a collateral object, or that the application was so devoid of merit that it should never have been filed.  For that reason I am not satisfied that the application for interim relief led to unnecessary expense for the Society sufficient to justify an award of increased costs.

[8]      Similarly, I do not view the filing of the amended statement of claim as providing justification for an award of increased costs.   Parties to a proceeding regularly amend  their  pleadings  as  they refine  their  respective  cases.    There  is nothing in the present case to suggest that this factor justifies an award of increased

costs.

[9]      I  reach  a  similar  conclusion  in  relation  to  the  assertion  that  Mr  Curtis breached the Court’s timetable orders to such an extent that he should be subject to an award of increased costs for that reason.  To some extent both parties failed to comply with timetable directions to which they had earlier agreed.   The level of default was not, however, of such magnitude that it should result in an award of increased costs for either party.

[10]     For these reasons the Society has  not  made out  a case for an  award  of increased costs against Mr Curtis.

Should the costs payable by Mr Curtis be reduced?

[11]     Mr Curtis argues that the Society had an obligation to disclose the minutes of the meeting held by the Society on 20 September 2010 at an early stage.  He says that his pleadings clearly signalled that the absence of any minutes taken at that meeting was a material issue. The Society did not, however, produce a copy of those minutes until it filed its evidence in opposition to the application for judicial review on 21 July 2011.  Had the Society met its obligation to produce the minutes earlier, Mr Curtis contends that he may have decided to discontinue the proceeding earlier. Had that occurred, both parties would have been saved considerable expense.

[12]     I do not accept this submission.  First, I do not accept that the Society was obliged to produce the minutes earlier than it did.  So far as I can tell from the file, the parties never agreed to undertake formal discovery and inspection of each other’s documents.   Rather, they agreed to timetables for the filing and service of their evidence in preparation for the application for interim relief and for trial.

[13]     I agree that it would have been preferable for the Society to have produced a copy of the minutes in October 2010 when it filed affidavits in opposition to the application for interim relief.   Of itself, however, I do not consider the Society’s failure  to  produce  the  document  at  that  stage  to  be  decisive  when  considering whether costs should be reduced.

[14]     I consider the issue of timing to be important in this context.  I infer that Mr Curtis elected not to continue with his claim once he received and considered the Society’s evidence.   It is likely, in my view, that he viewed the totality of the Society’s evidence as providing a significant obstacle to his application for judicial review.     At  that  point  he  responsibly  made  the  decision  to  discontinue  the proceeding.   It is likely, however, that the record of the meeting on 20 September was just one of the factors that Mr Curtis took into account in reaching his decision.

[15]     I therefore conclude that Mr Curtis has not made out a case for reduced costs.

Order

[16]     I direct that Mr Curtis is to pay the Society’s costs other than those relating to

the protest to jurisdiction.   Costs are to be calculated  on  a Category 2B basis, together with disbursements as fixed by the Registrar.

Lang J

Solicitors:

Skeates Law, Dominion Road, Auckland
Castle Brown, Newmarket

Counsel:

D Grove, Auckland
J Anderson, Auckland