Geary v Accident Compensation Corporation
[2015] NZHC 1646
•14 July 2015
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CIV-2013-476-000299 [2015] NZHC 1646
BETWEEN IAN RUSSELL GEARY
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 10 July 2015 (by way of Telephone Conference) Appearances:
A Beck for Appellant
I Hunt for RespondentJudgment:
14 July 2015
JUDGMENT OF GENDALL J
GEARY v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 1646 [14 July 2015]
Introduction
[1] This is an application for leave to appeal to the Court of Appeal against a decision on costs I gave in this matter on 20 June 2014.1 That costs decision (the High Court costs decision) followed an earlier decision I gave in this proceeding (the High Court substantive decision) relating to two appeals against decisions of Judge Maze in the District Court at Timaru dated 23 July 2013 (the District Court substantive decision) and 10 August 2013 (the District Court costs decision). The
High Court substantive decision was delivered on 16 May 2014 under reference
[2014] NZHC 1037.
[2] The appellant’s original claim against the Accident Compensation
Corporation (ACC) as ultimately pleaded in the District Court sought damages of
$63,173, although it seems that in the course of negotiations between the parties the appellant at various times sought $145,000 and $95,000 respectively.
[3] In the District Court substantive decision, Judge Maze awarded judgment to the appellant of $8493 plus interest of $3416.
[4] Except for the correction of an error identified by way of detailed evidence provided to the High Court by the respondent ACC, the appeal against the District Court substantive decision effectively failed.
[5] Turning now to the appeal to this Court against the District Court costs decision, the appellant was successful in part with this appeal. In the High Court substantive decision I quashed the costs order made in the District Court of $70,000 and substituted an order that the appellant pay the respondent costs of $21,000 together with disbursements.
[6] These decisions were given on the basis that the appellant’s success, as I noted at [86] of my High Court substantive decision, “…was very largely, if not entirely due to the efforts and co-operation of the respondent and the independent accountant appointed by the Court, Mr Copland.”
[7] In my 20 June 2014 judgment as to costs, which is the subject of this leave application, I ordered that costs with respect to the two appeals which were the subject of the High Court substantive decision were simply to lie where they fell. No order as to costs with respect to those appeals was made. It is that order that the appellant challenges here, suggesting that he should be entitled to costs on those appeals, and hence the present leave application.
Jurisdiction
[8] This application for leave to appeal is made in reliance on s 67 of the
Judicature Act 1908 which provides:
67 Appeals against decisions of High Court on appeal
(1) The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—
(a) to the Court of Appeal; or
(b) directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).
(2) An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.
(3) An application under subsection (1) for leave to appeal directly to the Supreme Court must be made to the Supreme Court.
(4) If leave to appeal referred to in subsection (1)(a) is obtained, the decision of the Court of Appeal on appeal from the High Court is final unless a party, on application, obtains leave to appeal against that decision to the Supreme Court.
(5) Subsections (1), (3), and (4) are subject to the Supreme
Court Act 2003.
[9] The test to be applied in considering an application pursuant to s 67 of the Judicature Act 1908 has been set out by the Court of Appeal in Snee v Snee2 as follows:
To summarise, for leave to be granted pursuant to s 67, the appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the Court system and to the parties, and the delay involved in the further appeal. Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
[10] Although Snee v Snee emphasises the restrictive approach that is to be taken in the case of second appeals, it is arguable here that in seeking leave to appeal, the appellant is advancing a first appeal from the costs decision of this Court, it is accepted by both parties here that the intended appeal to the Court of Appeal here is by way of leave only.
Counsel’s arguments and my decision
[11] Turning now to the grounds advanced by the appellant for leave here, these are:
a.The Court wrongly treated the situation before it as an exception to the costs rules, and failed to treat the appellant as the substantially successful appellant.
b.The Court failed to take into account the fact that the appellant was legally aided.
c.The Court failed to make appropriate costs awards to deal with the substantial non-compliance on the part of the respondent.
d.The Court failed to recognise and make an appropriate award for the substantial disbursements incurred by the appellant in pursuing an appeal, thereby penalising the appellant as the party required to meet these costs.
e.There are matters of principle at stake as well as a financial sum that is significant for a litigant who is legally aided.
[12] In addressing these grounds, it is clear that although originally there were two appeals to this Court from decisions of the District Court dealt with in my judgment of 16 May 2014 they were heard together and need to be treated for all practical purposes as a single appeal.
[13] In the judgments appealed from, when these were addressed on appeal in this Court, there can be no doubt in my view that the true questions at issue were simply about money. Few real matters of principle arose.
[14] On the question of who may have been the successful party here, I reject contentions which Mr Beck for the appellant purported to advance before me that it was truly the appellant who had succeeded in his appeal to this Court. On this aspect, it is useful here to repeat comments I outlined at [107] and [108] of the High Court substantive decision which, although directed to the appellant’s costs decision appeal (against the $70,000 costs order imposed against him in the District Court) are nevertheless generally relevant here.
[107] Although generally it will be only in extreme cases that a successful party will be required to pay costs to the other party, and in large measure most of the cases noted at para [106] above will not apply directly in the circumstances prevailing here, in my view this is one of those unusual cases where the appellant although successful to a degree in his claim should be required to pay something towards the costs of the respondent. This is because the appellant has raised issues and made claims here which have been entirely unsupportable and unreasonable, his claim it seems without question would have failed at the first hurdle had not the Court appointed Mr Copland the independent accountant to carry out the detailed and extensive enquiry he undertook and given too that the respondent also has chosen to assist the process by providing virtually all the information required by Mr Copland. On all of this, it seems the appellant really provided little assistance at all, and, as I have noted above, could at the very least have been required to pay the entire costs rendered by Mr Copland. The appellant’s claim for service charges and travel costs here failed as to nearly 80%. The work involved on the part of the respondent and Mr Copland to analyse and properly consider the myriad of claims advanced by the appellant it seems was in no way assisted by the efforts of the appellant. The hearing of these claims occupied some six hearing days on what should essentially have been a simple debt recovery exercise. There can be little doubt that the real responsibility for this extended hearing time, and the mammoth task required to be undertaken by Mr Copland and the respondent in the lead up to this hearing, must rest largely with the appellant.
[108] Under all these circumstances, and bearing in mind all the material features of this case which I have outlined above, in an endeavour to do justice to both sides in this case, I take the view that Judge Maze was correct to determine finally that the appellant should be liable to some extent to contribute towards the respondent’s costs here.
[15] And in essence, therefore, all grounds the appellant had advanced for his appeal to the High Court failed as I noted at para [19] of the 20 June 2014 High Court costs decision. Throughout it was incumbent upon the plaintiff who was
advancing his claim to provide sufficient evidence which, on the balance of probabilities, would have proven the monetary claim he was bringing against ACC. In fact, the only reason he had achieved some slight financial success in his substantive monetary claim on appeal was because of work which, to their credit, the ACC had undertaken and put before the Court, and the efforts of the independent account, Mr Copland. It could not, therefore, truly be said in my view that the appellant had been the successful party as to that aspect. Success was achieved in a sense by way of a final resolution of that issue in large measure simply because of the actions of the ACC and Mr Copland alone, even though the result was a small additional payment due from ACC to the appellant.
[16] I reject any suggestion that the true position is that the appellant contributed in being actually the successful party in achieving that outcome.
[17] Turning now to the reduction in the costs award made in the District Court costs decision from $70,000 to $23,000, there is a possible argument that the appellant was indeed the successful party with respect to that matter. There is no doubt that his costs liability to the respondent had been substantially reduced.
[18] Even accepting that position, however, it is difficult to escape the conclusion that through his own actions, or inactions, the appellant has only been partly successful in his appeal (relating as it does to the District Court costs award reduction) and unsuccessful in anything he put before the Court with respect to the other substantive matter.
[19] For these reasons alone, it seems to me that the decision that costs should lie where they fall is scarcely open to attack.
[20] Turning to the specific grounds advanced by the appellant for leave as outlined at para [11] above, I dismiss each of these grounds on the following basis:
(a) In the High Court costs decision clearly I referred to the applicable costs rules here and in my view it cannot be seriously arguable that in my decision I failed to apply those rules in an appropriate way given
that I had received and considered detailed submissions and argument from counsel for both parties.
(b)It is entirely unclear to me on what basis it is suggested by the appellant that, because he may have been legally aided, I should not have applied the High Court Rules to the question of costs in the principled manner that occurred here.
(c) Matters concerning the appellant’s claim that there had been substantial non-compliance on the part of the respondent were addressed at para [17] of my High Court costs decision and throughout the High Court substantive decision itself. Certainly, as I have alluded to in the extracts from the High Court substantive decision noted at para [14] above, the suggestion that it has been the respondent which has been non-compliant in this case, given the immense help the respondent has provided to the appellant to establish his case here, is entirely without merit.
(d)As to the suggestion that the Court failed to treat the appellant as the successful party and to make an award of costs and disbursements in his favour, on the basis of the matters outlined above, there can be no doubt in my mind that the appellant was not the substantially successful party on appeal here. And, in this long-running matter, arguably kept alive and pursued to every conceivable length by the actions of the appellant (despite the relatively meagre sums ultimately at stake), he must bear the cost of these actions.
(e) As to the final suggestion that there are matters of principle at stake here, as well as a significant financial sum for the legally aided appellant, again I am unclear as to what these matters of principle at stake may be. Also, I take the view, as noted at [13] above, that the true questions at issue here are in reality simply about money.
[21] Finally, on questions relating to disbursements, I am satisfied the appellant’s claim for disbursements fell to be assessed in the same way as his claim for costs generally. It follows in my view therefore that, as the appellant had not in fact succeeded wholly in respect of his substantive appeal, but indeed there was a measure of success effectively achieved on both sides, the disbursements question should be left undisturbed, with these also to simply lie where they fell.
Conclusion
[22] For all the reasons outlined above I conclude that none of the matters advanced by the appellant here in my judgment raise questions of law or fact warranting consideration on appeal by the Court of Appeal. This long-running litigation needs to come to a conclusion. The appellant has raised no grounds suggesting the appearance of any miscarriage of justice in respect of the disposition of costs in the High Court costs decision following his appeals from the District Court decisions. Leave to take this matter further, involving as it does a simple refusal to award costs to the legally aided appellant, is not appropriate in all the circumstances prevailing here.
[23] The appellant’s application for leave to appeal is dismissed.
...................................................
Gendall J
Solicitors:
Andrew Beck, Greytown
Young Hunter, Christchurch
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