Foster v Racing Industry Transition Agency (formerly New Zealand Racing Board)

[2019] NZHC 2979

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-192

[2019] NZHC 2979

BETWEEN

NEIL FOSTER

Plaintiff

AND

RACING INDUSTRY TRANSITION AGENCY (FORMERLY NEW ZEALAND RACING BOARD)

First Defendant

KIT
Second Defendant

CHARLIE
Third Defendant

OLLY

Fourth Defendant

On the papers:

Counsel:

Plaintiff in person

R J Gordon for Defendants

Judgment:

14 November 2019

JUDGMENT OF CHURCHMAN J (COSTS)

[1]                   In a judgment dated 19 September 2019, the Court dismissed proceedings instituted by the plaintiff against the four defendants. The Court invited the parties to agree costs and, in the absence of agreement, indicated that the question of costs would be resolved on the papers.

[2]The parties have been unable to resolve costs. Each has filed a memorandum.

FOSTER v RACING INDUSTRY TRANSITION AGENCY (FORMERLY NEW ZEALAND RACING BOARD) & ORS [2019] NZHC 2979 [14 November 2019]

[3]                   Mr Gordon, for the first defendant, seeks costs on the basis that costs follow the event, and that as Mr Foster was unsuccessful, he should be obliged to pay costs. He asks for costs to be fixed on a 2B basis with disbursements as fixed by the Registrar. He has not filed a draft schedule setting out what costs on a 2B basis would come to.

[4]                   Mr Foster has filed a brief memorandum dated 16 October 2019. In that document he has referred to himself as Neil Martin Clarke. The name that he used when he commenced the proceedings was Neil Martin Foster. Neil Martin Clarke is apparently an alias that he also uses. His memorandum of 16 October 2019 is brief. It asserts:

(a)the first defendant is not entitled to costs;

(b)the case is under appeal;

(c)he refers to Lowrie v Hutt City Council;1 and

(d)says he is currently on a WINZ benefit.

Analysis

[5]                   The Court’s jurisdiction as to costs is set out in Part 14 of the High Court Rules 2016 (HCR).

[6]                   HCR 14.02 provides that the primary principle in fixing costs is that the unsuccessful party should pay the costs of the successful party. The rules provide for three different categories of complexity, categories 1, 2 and 3, which correspond with increasing requirements for skill and experience. The time required in respect of various tasks is also categorised into three bands, A, B and C, depending on whether a comparatively small, normal or large amount of time is considered reasonable for a particular step in the proceeding.

1      Lowrie v Hutt City Council [2019] NZHC 1030.

[7]                   Schedule 3 of HCR sets out the appropriate time allocation by reference to the step in the proceeding.

[8]                   Category 2B costs are generally awarded in proceedings of average complexity which take an average amount of time. They are the most commonly awarded category of costs. 2B costs are appropriate for this case.

[9]                   The fact that Mr Foster has chosen to appeal the decision is not relevant to the fixing of costs. If his appeal is successful, then the Court of Appeal will either determine what a new costs award in the High Court proceeding should be, or remit the matter to the High Court for determination.

[10]               The case of Lowrie v Hutt City Council, referred to by Mr Foster, is not relevant. It concerned the provisions of s 45 of the Legal Services Act 2011 (LSA), and the circumstances in which an order for costs may be made against a legally aided person in civil proceedings. That section requires exceptional circumstances before such a costs award can be made. Dobson J was satisfied that there were exceptional circumstances and awarded costs as a result of that finding.

[11]Mr Foster is not legally aided. No consideration of s 45 of LSA is required.

[12]               Although the Court has a discretion in relation to the fixing of costs, the fact that an unsuccessful plaintiff is in receipt of an income-tested benefit does not, of itself, justify a departure from the general principles in relation to costs set out in r 14.2 HCR.

[13]               Other than Mr Foster’s claim that he is currently on a WINZ’s benefit, the Court has no information about his asset position or overall financial circumstances.

[14]               Mr Foster made the choice to bring these proceedings. He put the first defendant to considerable cost and trouble to defend them. The proceedings were completely without merit. One of the consequences of issuing and pursuing such proceedings is a liability for costs.

Outcome

[15]               Costs are awarded to the first defendant on a 2B basis. Counsel for the first defendant is to file with the Registrar, for approval, a schedule of costs calculated on a 2B basis, together with a schedule of claimed disbursements.

Churchman J

Solicitors:

MinterEllisonRudd Watts, Wellington cc:       N M Foster