Fairfax New Zealand Limited v C and New Zealand Police

[2008] NZCA 94

IN THE COURT OF APPEAL OF NEW ZEALAND

CA429/07
[2008] NZCA 94

BETWEENFAIRFAX NEW ZEALAND LIMITED

Appellant

AND"C"

First Respondent

ANDNEW ZEALAND POLICE

Second Respondent

Court:O'Regan, Robertson and Ellen France JJ

Counsel:R K P Stewart and B J Marten for Appellant

M B Ryan for First Respondent
M F Laracy for Second Respondent

Judgment:21 April 2008 at 10.30 am 

JUDGMENT OF THE COURT

The appellant must pay to the first respondent costs of $750 plus reasonable travel expenses the latter to be determined by the Registrar if necessary.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] On 29 February 2008, this Court dismissed the appellant’s appeal against an order for interim name suppression in favour of C for want of jurisdiction: [2008] NZCA 39. The Court determined that the media interests represented by the appellant were not a “party” to the proceedings and so had no right of appeal in terms of s 144 of the Summary Proceedings Act 1957. Nor was there any right of appeal under s 66 of the Judicature Act 1908 because that section only conferred a right of appeal in cases involving the court’s civil, not its criminal, jurisdiction. The judgment did include some observations about the merits of the proposed appeal which concerned the relationship between the diversion scheme and suppression orders.

[2]       Costs were not dealt with at the time.  Counsel for C has now requested the Court by way of memorandum to make an order that the appellant contribute to C’s costs.  The appellant opposes any award of costs and says costs should lie where they fall.

Discussion

[3] In terms of s 8(1) of the Costs in Criminal Cases Act 1967, where an appeal is made pursuant to the Summary Proceedings Act, the court which determines the appeal may make such order as to costs as it thinks fit. The court’s power is subject to the Costs in Criminal Cases Regulations 1987 which prescribe the scale of costs (s 8(1)). The Court may make an order for costs in excess of the scale if satisfied in terms of s 13(3), namely:

[T]hat, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.

[4]       The first respondent seeks a contribution to his costs from the appellant on the basis that he has incurred costs by virtue of the appellant’s wish to resolve issues of more general application.  The first respondent is not legally aided.

[5]        The appellant makes two principal submissions in opposing costs.  First, the appellant says it is too late to raise this issue now, given that the question of costs  was not raised by the first respondent in the context of the appeal and nor has any order for costs been made to date.

[6]       Second, the appellant argues that the merits do not support a costs award.  In developing that submission the appellant says that the appeal raised legitimate issues of law of importance to the parties and more generally.

[7]       Counsel for the police does not seek to make submissions on the merits of the costs application but has made helpful submissions on the relevant sections of the Costs in Criminal Cases Act. Costs are not sought from the police.

[8]       We consider that in terms of s 8(1) an award of costs should be made. It is not right for C to be out of pocket because Fairfax sought to have issues of more general application determined albeit in the context of C’s case. To some extent, at least, C’s case has been made a “test” case in a situation where C had no control over that situation.

[9]       We also consider that, given the combination of complexity and importance in the case, it is appropriate to make an award in excess of the scale.  On the scale, C would receive a maximum of $226 plus reasonable travel expenses.  Although C only seeks a contribution, an award of $750 plus reasonable travel expenses better reflects the complexity and importance.

[10]     We make orders accordingly.

Solicitors:

Izard Weston, Wellington for Appellant
M B Ryan, Solicitor, Palmerston North for First Respondent
Crown Law Office, Wellington for Second Respondent