Dunstan v District Court at Manukau

[2021] NZHC 1320

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-996

[2021] NZHC 1320

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review

BETWEEN

TANYA FELICITY DUNSTAN

Applicant

AND

THE DISTRICT COURT AT MANUKAU

First Respondent

JOHN DUDLEY NEILL
Second Respondent

PATRICIA PLOWRIGHT, KAREN ALLEN, RACHEL HARRIOTT AND TRICIA

STEVENSON

Third Respondents

Hearing:

Counsel:

On the papers

V McCall, Counsel assiting the Court

Appearances:

TF Dunstan, Applicant in person

Judgment:

8 June 2021

JUDGMENT OF FITZGERALD J

[As to application for stay of costs award]

This judgment was delivered by me on 8 June 2021 at 3.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar  Date……………………

Solicitors:           Crown Law, Wellington To: C Wrightson, Wellington

T Dunstan, Auckland J Neill, Auckland

Heaney & Partners (P Robertson), Auckland

DUNSTAN v MANUKAU DISTRICT COURT [2021] NZHC 1320 [8 June 2021]

Introduction

[1]    On 26 February 2021, I dismissed Ms Dunstan’s application for judicial review of a decision made in the District Court.1   In a subsequent judgment delivered on    22 March 2021, I made a costs award in Crown Law’s favour against Ms Dunstan, in the sum of $3,352.00.2 The background to this is that none of the named respondents to the underlying application for judicial review participated in the proceedings. The Court accordingly appointed counsel assisting the Court (a solicitor employed by Crown Law), who filed written submissions and made oral submissions at the substantive hearing. The costs award reflected a modest contribution to the actual costs incurred by Crown Law in providing counsel assisting the Court.

[2]    Ms Dunstan subsequently applied for an order staying the costs award against her pending determination of her appeal against my 26 February 2021 judgment.

[3]    Ms Dunstan submits that there are legitimate grounds for appealing against my earlier decision, including that I made “a significant failing” in my decision, in concluding that there was no evidence the child in question sustained an injury during a fall in May 2019.

Legal principles

[4]    An application to stay a first instance judgment, or a costs award, pending appeal is governed by r 12(3) of the Court  of  Appeal  (Civil)  Rules  2005.  In Keung v GBR Investment Limited, the Court of Appeal summarised the applicable legal principles as follows:3

[11]The stay application is brought under r 12(3) of the Court of Appeal (Civil) Rules 2005. In determining whether or not to grant a stay, the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”. Factors to be taken into account in this balancing exercise include:

1      Dunstan v District Court at Manukau [2021] NZHC 311.

2      Dunstan v District Court at Manukau [2021] NZHC 582.

3      Keung v GBR Investment Ltd [2010] NZCA 396.

(a)whether the appeal may be rendered nugatory by the lack of a stay;

(b)the bona fides of the applicant as to the prosecution of the appeal;

(c)whether the successful party will be injuriously affected by the stay;

(d)the effect on third parties;

(e)the novelty and importance of questions involved;

(f)the public interest in the proceeding; and

(g)the overall balance of convenience.

That list does not include the apparent strength of the appeal but that has been treated as an additional factor.

(Citations omitted)

[5]    What Ms Dunstan seeks to stay in this case is a costs award. In a detailed discussion of the approach to applications for a stay of execution of money and costs judgments, Associate Judge Osborne (as he then was) in Walker v Castlereagh Properties Ltd said this:4

[42]      I view costs judgments as requiring consideration beyond that which applies to money judgments generally.

[43]      Those involved in litigation in this Court are subject to a regime whereby costs become payable when they are fixed. Successful parties are intended to have (upon the fixing of costs) the cash flow benefits of the costs to which the Court has found them entitled.

[44]      Where the unsuccessful party appeals a substantive judgment, the justice in relation to identifying who should be out of pocket for awarded costs in the interim will most often (albeit not invariably) favour the successful respondent. The respondent has had to bear costs in either suing the other party or defending the other party’s unsuccessful claim. That stage of the litigation is over. If the unsuccessful party elects to embark on a further stage of litigation through appeal it will generally be just that the successful party (through the payment of costs) is reimbursed in the interim for the costs awarded and fixed pursuant to its success.

[45]      Such an approach will by the nature of the balancing exercise remain subject to influence by factors of particular relevance in an individual case. One such factor is where the appellant establishes that the successful party may be unable to repay the awarded costs in the event the appeal is unsuccessful. But such factors are more likely to inform the Court’s decision

4      Walker v Castlereagh Properties Ltd [2015] NZHC 907.

on the way in which the unsuccessful party should make any payment in the interim (e.g. by outright payment to the plaintiff or by payment in to a stakeholding) rather than on whether the unsuccessful party should be relieved of the requirement to make payment pending the determination of the appeal.

Application of the principles to this case

[6]    There is no suggestion that an appeal may be rendered nugatory if a stay is not granted. For example, it is not suggested that if the costs were paid by Ms Dunstan in the interim, and her appeal were to be allowed, costs would not be repaid by Crown Law.

[7]    As to Ms Dunstan’s bona fides in the prosecution of her appeal, there is no material on the file evidencing that an appeal has actually been filed with the Court of Appeal (the notice of appeal ordinarily being transmitted by the Court of Appeal Registry to the High Court Judge in question). Inquiries of the Court of Appeal Registry (as to whether a hearing date for the appeal has yet been allocated) indicate that an appeal may have not yet been filed.   It would not appear, therefore, that     Ms Dunstan is pursuing an appeal with all due speed.

[8]    I am also satisfied that the prospects of any appeal succeeding are low. As I noted in my original judgment, Ms Dunstan’s application for judicial review failed, and failed by some margin.5 In terms of the other relevant considerations set out at

[4] and [5] above, I do not discern there to be any qualifying effect on third parties, nor is there, in my view, any novelty or importance of the questions involved, or broader public interest in the appeal.

[9]                 That brings me to the overall balance of convenience. I proceed on the basis that Ms Dunstan may suffer from financial hardship, and would not be in a position immediately to pay the costs award to Crown Law. I note in this context that in a recent costs judgment of Powell J in proceedings between Ms Dunstan and her former partner, Powell J accepted that Ms Dunstan suffers from financial hardship, though noted that that would not be a proper basis upon which to refuse to make a costs order.6

5      Dunstan v District Court at Manukau [2021] NZHC 311 at [62].

6      Dunstan v Neill [2021] NZHC 1008 at [9].

[10]              I have already made a costs order. The question is now whether it ought to be stayed pending determination of Ms Dunstan’s appeal. I am not persuaded that a stay should be granted in this case. As noted, parties who have a costs award made in their favour ought to be entitled to the fruits of that award without unreasonable delay. While there is no discernible prejudice to Crown Law were a stay to be granted, in my view there must nevertheless be a proper reason to depart from the proposition that costs awards ought to be paid within a reasonable time. Given my view that the merits of Ms Dunstan’s appeal are very weak, I conclude that it would be inappropriate to grant a stay in this case.

[11]              Ms Dunstan’s application for a stay of the costs award made in Crown Law’s favour is accordingly dismissed.

Fitzgerald J