Du Claire v Palmer - [2012] NZHC 1685

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-002638 [2012] NZHC 1685

UNDER the Defamation Act 1992, s 3(2) of the Crown Proceedings Act 1950 and s 16 of the Judicature Act 1908

BETWEEN LYSETTE LILLIAN DU CLAIRE Plaintiff

ANDMATTHEW SIMON RUSSELL PALMER First Defendant

ANDCROWN LAW OFFICE Second Defendant

Hearing: 20-23 February 2012

Counsel: Plaintiff in person
M McClelland and U Jagose for Defendants

Judgment: 13 July 2012

JUDGMENT OF ASHER J (Costs)

This judgment was delivered by me on Friday, 13 July 2012 at 1pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Law, DX SP 20208, Wellington. Email: una.jagose@crownlaw.govt.nz
M McClelland, PO Box 10242, The Terrace, Wellington. Email: mmcclelland@legalchambers.co.nz

Copy to:
L du Claire. Email: lysette@paradise.net.nz

DU CLAIRE V PALMER HC WN CIV-2009-485-002638 [13 July 2012]

[1] I issued a substantive judgment in this matter on 7 May 2012. The plaintiff failed in her claims and judgment was entered for the defendants on all causes of action.

[2] The defendants now seek costs at scale on a 2B basis. Miss du Claire opposes the making of such an order.

[3] The Crown filed a submission in support of its application for costs on

21 May 2012 in accordance with the timetable. Miss du Claire, who informs the Court that she has suffered ill-health, has not filed any written submission. However, in a telephone conference of 10 July 2012 arranged by the Wellington registry, Miss du Claire orally set out her opposition.

[4] The costs are at the discretion of the Court.[1] In the principles set out in r 14.2 of the High Court Rules, it is stated[2] that the party who fails with respect to a proceeding should pay costs to the party who succeeds. The determination of costs should be predictable and expeditious.[3] Appropriate daily recovery categories and categories for the determination of reasonable time are set out.[4]

[1] High Court Rules, r 14.1.

[2] Rule 14.2(a).

[3] Rule 14.2(g).

[4] Rules 14.4 and 14.5.

[5] Mr McClelland in his submission on behalf of the defendants states that there are no special circumstances warranting a departure from the usual principle that the successful party should obtain costs. He also refers to further particular factors supportive of an award of costs in that:

(a) The defendants carried a greater burden in preparation for trial.

(b)Miss du Claire repeatedly failed to provide adequate particulars despite orders that she should do so.

(c) Miss du Claire pursued claims and arguments that lacked merit.

(d) Miss du Claire unreasonably refused settlement offers.

[6] Miss du Claire in response repeated some of her original arguments on the merits, including a reiteration of her view that Dr Palmer was wrong in his views on the “secrecy” of the documents. She also submitted that there were a number of novel issues that arose in some of the rulings and in the judgment itself which were points of public importance. She submitted that the proceedings raised significant questions…

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.

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Details

Case: [2012] NZHC 1685
Decision Date: 13 July 2012

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, heard the case of Lysette Lillian du Claire versus Matthew Simon Russell Palmer and the Crown Law Office. The plaintiff, Lysette du Claire, pursued defamation claims against the defendants, who sought costs at scale on a 2B basis after the plaintiff's failure in her claims. The court needed to determine whether to order the plaintiff to pay costs to the defendants as the successful party and assess if any special circumstances warranted a departure from the usual principle. The court also needed to evaluate whether the plaintiff's arguments and conduct during the proceedings were reasonable.

The court considered the principle that the party who fails in a proceeding should pay costs to the successful party, as stated in the High Court Rules. The court assessed various factors, such as the burden of preparation for trial, the plaintiff's failure to provide adequate particulars, the merit of the plaintiff's claims and arguments, and the plaintiff's refusal of settlement offers. The court found that the plaintiff's claims were not supported by serious allegations of ill-will and malice and that the plaintiff did not act reasonably in the conduct of the proceeding. The court also noted that there were no core issues of public interest that could have legitimately raised and on which the case turned.

The court concluded that there were no special circumstances warranting a departure from the usual principle that the successful party should obtain costs. The court found that the plaintiff's failure to provide adequate particulars, her persistence with untenable arguments, and her refusal of settlement offers justified an award of costs in favour of the defendants. The court ordered the plaintiff to pay costs to the defendants on a 2B basis, certifying for a second counsel for the two days sought.

In summary, the court found in favour of the defendants and ordered the plaintiff to pay costs to the defendants on a 2B basis. The court found that the plaintiff's claims lacked merit and that she did not act reasonably in the conduct of the proceeding. The court also found that there were no core issues of public interest that could have legitimately raised and on which the case turned.

Orders