Fielding v Police

[2021] NZHC 47

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-212

[2021] NZHC 47

BETWEEN

ALISOHN JOAN FIELDING

Plaintiff

AND

NEW ZEALAND POLICE

Respondent

Hearing:

On the papers

Counsel:

Plaintiff in Person

S B McCusker for Respondent

Judgment:

2 February 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON (COSTS)

[1]                 In my judgment of 4 December 2020 I dealt with an application by the respondent for an order striking out Ms Fielding’s claim pursuant to r 15.1(1)(a) of the High Court Rules 2006 on the basis that her pleading does not disclose a reasonably arguable cause of action.

[2]                 In the result, I struck out one cause of action which I concluded could not succeed, but I declined to strike out the balance of Ms Fielding’s claim because I concluded that it might be possible for her to replead it in a way which demonstrates an arguable legal basis for her claim. These orders were made on strict conditions. I did not deal with costs as these had not been argued. I indicated that I would do so on the papers if the parties were unable to resolve costs.

FIELDING v NEW ZEALAND POLICE [2021] NZHC 47 [2 February 2021]

[3]                 I  now  have  memoranda  from  Mr McCusker  for   the   respondent   and Ms Fielding indicating that costs have not been agreed. The respondent seeks costs on a 2B basis.

[4]                 The costs regime is contained in r 14 of the High Court Rules 2016. It is straightforward. The starting point is that costs are a matter of discretion for the Court. Like every discretion, it must be exercised on a principled basis. Generally, costs are to follow the event, that is to say that the successful party is entitled to an award of costs in all but exceptional circumstances. As to quantum, costs are, again, in all but exceptional circumstances, awarded in accordance with the scales contained in appendices 2 and 3 of the High Court Rules.

[5]                 The respondent was the successful party. Prima facie it is entitled to a costs award. Whilst Ms Fielding opposes a costs order, there is nothing in her memoranda suggested that the circumstances are such as to undermine the respondent’s prima facie entitlement. In her pre-emptive memorandum dated 11 January 2021 and a memorandum in reply dated 28 January 2021, Ms Fielding goes little further than reiterating her substantive argument.

[6]In my view, the respondent is entitled to a costs award.

[7]                 As to quantum, the respondent claims costs on a 2B basis. In my assessment, this was a straightforward application. I accept that in terms of r 14.3 it is properly categorised as a category 2 proceeding being of average complexity, but the straightforward nature of the application itself appears to me to fit more comfortably, in terms of r 14.4, within category A.

[8]                 I order that Ms Fielding pay the respondent costs on a 2A basis, together with such disbursements as may be allowed by the Registrar.

Associate Judge Johnston

Solicitors:
Luke Cunningham Clere for the defendant