FMV v TZB - [2021] NZSC 145

NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES REMAINS IN FORCE SO LONG AS THE SUPPRESSION ORDER MADE BY THE EMPLOYMENT RELATIONS AUTHORITY REMAINS IN FORCE. SEE [2021] NZSC 102 AT [138].

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 72/2019
[2021] NZSC 145

BETWEEN	FMV Appellant
AND	TZB Respondent

Court:	Winkelmann CJ, William Young, Glazebrook, O’Regan and Williams JJ
Counsel:	R E Harrison QC for Appellant T L Clarke for Respondent
Judgment:	2 November 2021

JUDGMENT OF THE COURT

The appellant must pay the respondent costs of $13,300 plus disbursements of $789.20.

____________________________________________________________________

REASONS

In our judgment of 20 August 2021, we dismissed FMV’s appeal to this Court and reserved costs.[1] TZB, the respondent, now claims costs of $25,000 plus disbursements of $789.20. FMV submits that costs should lie where they fall or, alternatively, that costs should be discounted in the context of this case.

TZB’s submissions

[1]FMV v TZB [2021] NZSC 102 at [141]–[142].

TZB submits that there are no reasons in this case to depart from the general rule that costs follow the event. Specifically, it says that it was completely successful in the appeal and had prevailed in the Courts below. Further, this was not a “test case” that might warrant departure from the general rule. Almost all appeals considered by this Court involve matters of general or public importance, and unlike the appellants in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd,[2] FMV was not a public interest litigant. The appeal was litigation brought in FMV’s personal interest, not to resolve an uncertainty in an area of law.
[2]Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 167.
TZB says it would not be just to require it to bear the full costs of the appeal, given the significant trouble and cost it has been put to.

FMV’s submissions

FMV opposes an award of costs, first because she says the outcome in the appeal was mixed. She notes that she was successful in overturning the High Court’s permanent suppression order, which is now only contingent on suppression remaining in the Employment Relations Authority. And as the Court did not deal with the abuse of process issue, neither party was successful or unsuccessful (although it is her belief that had the Court addressed this issue, she would have been successful).
Second, FMV submits that the appeal could properly be regarded as a test case by the time the parties’ arguments had been fully elaborated. In any event, she says that the law relating to the Authority’s exclusive jurisdiction was unclear and has now been resolved to the broader public benefit. And King Salmon shows that the fact that a party brought a case in their own interest is not necessarily conclusive.[3]
[3]Quoting the passage at [28].
FMV submits that given she has already paid costs in the Courts below and given the…

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 FMV v TZB

Details

AGLC: FMV v TZB [2021] NZSC 145
Case: [2021] NZSC 145
Decision Date: 2 November 2021

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to determine the appropriate costs to be awarded in an appeal brought by FMV against TZB. The appeal itself had already been dismissed, and the matter before the Court was the allocation of costs between the parties. TZB sought costs of $25,000 plus disbursements of $789.20, while FMV argued either that costs should lie where they fell, or that the costs should be discounted due to the financial disparity between the parties and the mixed outcome of the appeal. The Court was required to decide whether the general rule that costs follow the event should apply, and if not, whether the appeal could be considered a test case or public interest litigation warranting a departure from the usual principle for costs.

The Court held that there were no reasons to depart from the general rule that costs follow the event, as TZB had been completely successful in the appeal and had prevailed in the Courts below. The Court found that the present case did not produce a mixed outcome justifying an order that costs lie where they fall, as FMV was only successful in overturning the High Court’s permanent suppression order, which was not a significant aspect of the case. The Court also found that the appeal was not a test case or public interest litigation, as almost all civil appeals in the Court involved a question of law of wider significance than the interests of the parties. However, the Court exercised its discretion to make a costs order that seemed just, discounting the costs by approximately one third due to the circumstances of the case.

The Supreme Court of New Zealand ordered that FMV pay TZB costs of $13,300, plus disbursements of $789.20 as agreed. This outcome represented a discount from the standard rate for a one-day appeal in the Court with two or more counsel, reflecting the Court's assessment of the circumstances of the case.

Orders