Dorn v Enviornment Waikato HC Auckland CP 182-Sd99 - [2001] NZHC 396

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CP 182-SD99

BETWEEN J.P. DORN
Plaintiff

AND ENVIRONMENT WAIKATO
Second Defendant

AND R.H. KILVINGTON
Third Defendant

Hearing: 22 May 2001

Counsel: P.T.R. Heaslip for Plaintiff
S.J. Chatwin for Second Defendant
J.N. Burton for Third Defendant

Judgment: 22 May 2001

JUDGMENT OF FISHER J

Solicitors:
P.T.R. Heaslip, P.O. Box 4108, Auckland, for Plaintiff
Tompkins Wake, P.O. Box 258, Hamilton, for Second Defendant
Izard Weston, P.O. Box 5348, Wellington, for Third Defendant

Introduction

[1] Before me for resolution today are an application by the plaintiff for an order discharging an earlier order requiring security for costs and applications by the second and third defendants to strike out the proceedings.

[2] The background is set out in more detail in my judgment of 11 February 2000. At that time most of the plaintiff’s claims and causes of action were struck out but I declined to strike out a potential claim concerned with damage to chattels given the possibility that the statutory protection to the defendants under s 110(3) of the Maritime Transport Act 1994 did not extend to the destruction of chattels. That left the plaintiff in a position whereby it could continue with an action against the second and third defendants confined to destruction of chattels.

[3] On 19 April 2000 1 granted the defendants’ application for security for costs against the plaintiff in the sum of $12,000 for each of the two remaining defendants and directed that the proceedings against each of those defendants would be stayed until they were paid by the plaintiff.

[4] Before me today is an application to have those orders for security discharged on the ground that the plaintiff has now been granted legal aid. In support Mr Heaslip rightly submits that in accordance with the authorities security for costs is often refused in circumstances where a person is legally aided (as to which see Amev Life Assurance Co Ltd v Dixon-McIver [1993] 1 NZLR 733; (1992) 5 PRNZ 503 and O’Malley v Garden City Helicopters Ltd (1994) 8 PRNZ 182) although the grant of legal aid is of itself not a bar to security (see Young v News Media (Auckland) Ltd (1992) 6 PRNZ 183 and Glass v James (1992) 6 PRNZ 476).

[5] As I understand it, under normal circumstances a grant of legal aid is likely to be an important consideration mitigating against requiring security from the legally aided party for three reasons. One is the degree of protection which legal aid affords to a successful party seeking costs recovery from the legally aided party. Secondly there is the legislative intention that the legally aided party should be placed in a special category when it comes to liability to pay the opposition’s costs. Those concepts are to be found in s 40 and 41 of the Legal Services Act 2000. Thirdly legal aid can be an indirect indication to the Court that the legally aided person’s claim or defence was investigated to at…

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 Dorn v Enviornment Waikato HC Auckland CP 182-Sd99

Details

AGLC: Dorn v Enviornment Waikato HC Auckland CP 182-Sd99 [2001] NZHC 396
Case: [2001] NZHC 396
Decision Date: 22 May 2001

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, the case of Dorn v Environment Waikato, along with applications by the second and third defendants to strike out the proceedings, was heard on 22 May 2001. The plaintiff, J.P. Dorn, sought an order to discharge an earlier order that required security for costs, while the second and third defendants applied to dismiss the proceedings. The plaintiff had previously been granted limited legal aid, and the defendants argued that this was not sufficient grounds to discharge the security for costs order.

The court considered whether the limited legal aid granted to the plaintiff was enough to discharge the security for costs order. It was noted that legal aid, when granted for the entire proceedings, often influenced the court's decision to refuse security for costs. However, in this case, the legal aid was limited to addressing the security for costs issue and obtaining the release of a video for valuation purposes. The court concluded that this limited legal aid did not provide a sufficient basis for discharging the security for costs order. Additionally, the court considered whether the plaintiff's consent to the destruction of the chattels and the potential for an equitable set-off or counter-claim in respect of the defendants' costs would affect the merits of the plaintiff's case.

Furthermore, the court examined the third defendant's application to strike out the proceedings. It was determined that the third defendant had no role in the actions taken with respect to the chattels and, therefore, could not be held liable for the plaintiff's claims. Consequently, the claim against the third defendant was dismissed.

In conclusion, the court dismissed the claim against the third defendant and allowed the proceedings to continue against the second defendant. However, the existing orders for security in the sum of $12,000 and a stay of all steps by the plaintiff pending payment would remain in effect. The second defendant's application to have the proceedings dismissed would be adjourned to a later date to be fixed by the Registrar.

Orders