Dooley v Smith - [2012] NZHC 1553

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2009-418-125 [2012] NZHC 1553

BETWEEN FRANCIS THOMAS DOOLEY Plaintiff

ANDRAYMOND BRUCE SMITH First Defendant

ANDMOHAMMED SHAHADAT Second Defendant

Hearing: 2 July 2012
(Heard at CHRISTCHURCH)

Counsel: R K P Stewart for plaintiff
R B Smith in person
M Shahadat in person

Judgment: 2 July 2012

(ORAL) JUDGMENT OF LANG J [on costs]

FRANCIS THOMAS DOOLEY V RAYMOND BRUCE SMITH HC GRY CIV-2009-418-125 [2 July 2012]

[1] On 26 March 2012, I delivered a judgment in which I upheld claims in defamation by Mr Dooley against the two defendants, Mr Smith and Mr Shahadat.1
I reserved the issue of costs, but reserved leave to all parties to seek a determination in respect of that issue should they not be able to reach agreement. That has proved to be the case and, accordingly, I am now required to determine the issue of costs.

[2] Costs in this case are not to be determined in accordance with the usual principles contained in the High Court Rules. Instead, they are governed by s 24(2) of the Defamation Act 1992 (“the Act”), which provides:

24 Declarations

...

(2) Where, in any proceedings for defamation,—

(a) The plaintiff seeks only a declaration and costs; and

(b) The Court makes the declaration sought,—

the plaintiff shall be awarded solicitor and client costs against the defendant in the proceedings, unless the Court orders otherwise.

[3] Counsel for Mr Dooley contends I should make an award of costs in his client’s favour on a solicitor-client basis as the section clearly allows. Mr Shahadat and Mr Smith advance, as a primary argument, a submission that my earlier factual findings mean that costs should lie where they fall. Alternatively, they submit they should not be required to pay costs on a solicitor-client basis.

[4] Mr Smith and Mr Shahadat point out that I have already determined that Mr Dooley contributed significantly to the circumstances giving rise to the defamatory statements. They say I should take this factor into account when fixing costs, and that Mr Dooley should be required to meet 75 per cent of the legal costs and disbursements he has incurred.

[5] Counsel for Mr Dooley contends that costs should be awarded on a joint and several basis. Mr Smith and Mr Shahadat contend that, if I make an award of costs, it should be on a several basis to reflect the fact that they each faced separate claims.

They agree that Mr Shahadat should be required to meet 80 per cent of any award of costs, and that Mr Smith should pay the balance.

Relevant principles

[6] There does not appear to be any authority regarding the manner in which the Court is to exercise its jurisdiction as to costs under s 24(2). I accept Mr Stewart’s submission, however, that as a general rule Parliament must have intended a successful applicant for a declaration under s 24(1) of the Act to receive an award of costs on a solicitor-client…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dooley v Smith

Details

AGLC: Dooley v Smith [2012] NZHC 1553
Case: [2012] NZHC 1553
Decision Date: 2 July 2012

CaseChat Overview and Summary

In Dooley v Smith, the High Court of New Zealand was tasked with determining the issue of costs following a defamation claim brought by Mr Dooley against Mr Smith and Mr Shahadat. The court had previously ruled in favor of Mr Dooley, finding that both defendants made defamatory statements about him and that he successfully rebutted the defences of truth, honest opinion, and qualified privilege. The court reserved the issue of costs, but as the parties were unable to reach an agreement, the court was required to determine the matter. The court held that, under the Defamation Act 1992, Mr Dooley was entitled to an award of costs on a solicitor-client basis, unless the court ordered otherwise. The defendants argued that the court should consider Mr Dooley's contribution to the circumstances that led to the defamatory statements when determining the costs, while Mr Dooley's counsel argued for a joint and several basis for the award of costs.

The court found that while some allowance should be made for Mr Dooley's contribution to the events that occurred, he should not be penalised for the actions of others. The court held that Mr Shahadat and Mr Smith should be responsible for 70 per cent of the legal costs Mr Dooley incurred in bringing the proceeding, while recognising Mr Dooley's contribution to the events that occurred. The court also held that the liability for costs should be several, as each claim was separate and based on different allegations. The court did not agree entirely with the apportionment agreed by Mr Smith and Mr Shahadat, and instead held that Mr Shahadat should be required to pay 70 per cent of Mr Dooley's costs, and Mr Smith should be required to pay 30 per cent.

The court directed that the costs payable to Mr Dooley were costs that were subject to taxation and that the defendants were to advise Mr Dooley's counsel within 21 days whether, and to what extent, they challenged any of the costs he had claimed. If no objection was received by 5 pm on 23 July 2012, counsel for Mr Dooley could seal an order for costs based on the apportionment set out above. If, however, either defendant challenged any of those costs, counsel for Mr Dooley shall seek an appointment for taxation of those costs from the Registrar in accordance with Sub-part 2 of Part 14 of the High Court Rules. The court also held that Mr Dooley was entitled to recover his reasonable solicitor-client costs, but doubted whether the remaining out-of-pocket expenses were properly claimable. The court reserved leave to the parties generally to seek further directions in the event they were unable to reach agreement regarding the quantum of costs.

Orders