Gill v Lethlean

[2021] NZHC 296

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000367

[2021] NZHC 296

BETWEEN

PETER GLEN GILL

Appellant

AND

ANTHONY JAMES LETHLEAN

Respondent

Hearing:	11 February 2021
Appearances:	C R D Williams for Appellant G A Cooper for Respondent
Judgment:	26 February 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 26 February 2021 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1]    In April 2020, Mr Lethlean applied for a restraining order against Mr Gill.1 He also sought an award of indemnity costs. On 19 May 2020, the Court made the restraining order against Mr Gill, without opposition. The Judge reserved the issue of costs, to be dealt with at a subsequent hearing. In the interim, Mr Gill had a grant of legal aid confirmed which was advised to Mr Lethlean’s lawyers on 16 June 2020.

1      Under the provisions of the Harassment Act 1997.

GILL v LETHLEAN [2021] NZHC 296 [26 February 2021]

[2]    At the costs hearing on 25 June 2020, Mr Lethlean pursued a claim for indemnity costs. Mr Gill opposed any order for costs on the grounds he was protected by s 45 Legal Services Act 2011 (the Act).

[3]    Section 45 gives an unsuccessful party who is legally aided, an immunity from an award of costs against him or her unless there are “exceptional circumstances”. Section 45(3) gives guidance on what constitutes such circumstances. It provides:

(3)In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:

(a)any conduct that causes the other party to incur unnecessary cost:

(b)any failure to comply with the procedural rules and orders of the court:

(c)any misleading or deceitful conduct:

(d)any unreasonable pursuit of 1 or more issues on which the aided person fails:

(e)any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:

(f)any other conduct that abuses the processes of the court.

[4]In a decision issued on 9 July 2020, the District Court held that:2

(a)there were “exceptional circumstances”;

(b)the amount which was reasonable to pay having regard to all the circumstances, was 1.5 times the cost calculated on a 2B basis, together with such disbursements as the Registrar permitted.

[5]    That judgment resulted in a costs award of $8,450.50 against Mr Gill, although Mr Lethlean incurred costs totalling $38,462 by the time of the hearing.

[6]Mr Gill appeals that costs decision on the following grounds:

2      Lethlean v Gill [2020] NZDC 13181.

(a)the Judge wrongly concluded there were exceptional circumstances justifying an award of costs against the appellant;

(b)the Judge failed to determine the means of the appellant before making an award of costs against him; and

(c)the Judge failed to explain why, in the event an award of costs was both permitted under s 45(1) of the Act and appropriate, costs in excess of scale were justified.

The background to the proceedings

[7]    Before going on to discuss each ground of appeal, it is necessary to set out the history of matters between the parties, as Mr Lethlean relies on it to say that exceptional circumstances existed.

[8]    Mr Gill was a customer of Eric James and Associates (EJA), an insurance brokerage company, and through that company he obtained income protection insurance from Cigna Life Insurance New Zealand Ltd. Mr Lethlean is the sole director of EJA.

[9]    In March 2020, when the country went into lockdown to prevent the spread of COVID-19, Mr Gill attempted to make a claim on the policy for lost income because he was unable to work in his concrete removal business. However, he was told the policy would only respond if Mr Gill was sick or injured. It did not provide general business interruption cover in the case of something like a pandemic.

[10]   Mr Gill’s firm view is that, at the time he purchased the policy, he was assured it would provide cover under these circumstances. He communicated that to a staff member of EJA, Mr Kelly, in a telephone call on Tuesday 24 March 2020. On the same day, Mr Kelly responded by email saying he would conduct a full investigation into Mr Gill’s file and would be in contact as soon as possible regarding his findings. He also advised Mr Gill that he could contact FSCL (Financial Services Complaints Ltd), an independent dispute resolution service, if he was not satisfied with the outcome of EJA’s internal complaints process.

[11]   However, Mr Gill was not satisfied with that response. He says he wished to discuss his complaint with Mr Lethlean as the person in charge of EJA, and not just a member of staff. In addition, he says he is dyslexic and cannot read or write, which is why he wanted to speak to someone on the telephone, rather than to rely on email correspondence.3 Whatever the reason, Mr Gill began making incessant telephone calls to Mr Lethlean and EJA.

[12]   Mr Lethlean’s evidence is that when the calls were answered, Mr Gill would repeat the same information over and over, despite being advised there was a process to follow. As a result, Mr Gill was advised by email that the telephone calls were inappropriate and needed to stop. Regardless, Mr Gill continued to try and contact Mr Lethlean multiple times a day. When the phone was not answered he left multiple voicemails on Mr Lethlean’s phone which Mr Lethlean describes as “aggressive”. The gist of these messages was that Mr Gill:

(a)wanted Mr Lethlean, as the director, to call him back and sort the matter out;

(b)felt the company had lied to him and ripped him off; and

(c)he was stressed and this was destroying his life.

[13]   There were also parts of the messages which, from Mr Lethlean’s perspective were veiled threats. Mr Gill said that when the quarantine restrictions were lifted he would be coming around to Mr Lethlean’s house to “sort the problem out”. On the advice of police, Mr Lethlean did not engage with Mr Gill and blocked his number from their phones.

[14]   On 26 March 2020, Mr Lethlean made a complaint to the police. Although Mr Gill was subsequently visited by police he continued to contact Mr Lethlean. On 27 March, Mr Lethlean’s solicitors wrote a “cease and desist” letter to Mr Gill telling him his complaint was being investigated and his conduct in making numerous phone

3      I queried why, if he could not read or write, Mr Gill appeared to have written messages on social media. I was advised from the bar that he used dictation software to write the messages he sent.

calls and leaving “abusive and threatening messages” must cease immediately. It also advised that an application was being made for a restraining order.

[15]   In early April, and after this letter was sent, Mr Lethlean learned from the police that Mr Gill had made Facebook posts about EJA and his grievances with that company.  Mr  Lethlean says  of  greatest concern  to him was the third post  dated   3 April 2020 where Mr Gill wrote:

… Eric James and Associates was my broker and I’m giving him to the end of lockdown to sort out his crap I’m not threatening him I’m just saying I’m upset and I do own an explosive company no its not afrit (sic) [a threat] it’s the truth ps. keep smiling everyone be happy can everyone please share the heck out of us so hopefully he can see it.

[16]   A similar statement was made in a Facebook post on 12 April where Mr Gill said:

… so he’s taking me to court woohoo get out of this quarantine and then may have to go to a bigger one a 100% confused why I just told him I had a explosive company. I’m not lying I’m telling the truth.

Mr Lethlean considered the references to Mr Gill having explosives was intended as a threat.

[17]   Mr Gill contacted FSCL about his dispute with EJA and that organisation commenced an investigation on 14 April 2020. However, on 20 April 2020 FSCL declined to investigate the complaint further because it determined Mr Gill had not pursued the complaint in a reasonable manner. It pointed out that when FSCL received the complaint it was made clear to Mr Gill he was not to contact EJA staff. However, after that, he lodged a further post on Facebook about EJA and then contacted a former employee of EJA by telephone.

[18]   On 20 April 2020, Mr Gill was served with two harassment notices by the police, one in respect of Mr Lethlean, and the other in respect of the former employee that Mr Gill had contacted. The harassment notices required Mr Gill to stop any form of communication directly or indirectly with the protected persons and to desist from posting derogatory and threatening messages on social media relating to them.

Nevertheless, the day after Mr Gill was served, he placed more posts on Facebook about the company where he repeated his view that the company had let him down.

[19]   On 5 May 2020, Mr Lethlean received an email from a representative of Mediaworks who said Mr Gill had phoned her and, during their phone conversation, had said he owned explosives, and made threats to EJA.

[20]   Mr Gill’s application for a restraining order was filed on 9 April 2020.  On  12 May 2020 he filed an updating affidavit and expanded his application to include Mrs Gill on the grounds that she, too, was posting negative comments about EJA on Facebook and had filed a document in the proceedings which concluded with “[w]e will be continuing our exposure through other outlets to get something from this situation that we have been ditched in by this lack or (sic) caring company”. His lawyers then prepared submissions in support of his application on 13 May 2020 and a further updating affidavit on 18 May 2020. This affidavit attached evidence of a further Google review by Mr Gill which referred to Mr Lethlean indirectly, saying “he is taking me to court”.

[21]   At some time between 12 May 2020 and the hearing on 19 May 2020, Mr Gill sought legal advice and he was represented at the hearing. Counsel for Mr Gill informed the Court Mr Gill would not oppose a restraining order and an order was made accordingly. An application for a restraining order against Mrs Gill, as an associated respondent, and the application for indemnity costs were adjourned until 25 June 2020.

[22]   In the interim, on 16 June 2020, Mr Gill’s lawyer advised Mr Lethlean’s lawyer that Mr Gill was now legally aided. That was relied on to oppose the application for indemnity costs.

Approach on appeal

[23]   A decision on costs involves the exercise of a discretion. The discretion is not unfettered. It must be exercised in accordance with the principles set out in Part 14 of the High Court Rules 2016. To succeed, an appeal of a costs decision must show the

Judge acted on a wrong principle, failed to take account of relevant considerations, or took into account irrelevant considerations, or was plainly wrong.4

When did s 45 apply?

Submissions for Mr Lethlean

[24]   The first issue arising is whether Mr Gill was legally aided for the whole or part of the proceedings. The Judge assumed Mr Gill was legally aided throughout and s 45 applied. However, counsel for Mr Lethlean, Mr Cooper, says he was only advised on 16 June 2020 that legal aid had been granted. He argues that the indemnity found in s 45 could only apply from that point forward, citing B v A where Wylie J observed:5

Section 45(2) affords immunity against costs to “an aided person” … A person only becomes an aided person once a grant is made. There is nothing in s 45 to suggest that once a grant is made, immunity is conferred retrospectively. Rather, when a grant is made in civil proceedings, there is then an obligation to notify every other party and the Registrar of the relevant court. The obligation to notify arises on the grant of legal aid – not the date of application. Various decisions as to the conduct of proceedings will be based on whether the other party is legally aided. As has been observed by Judge Spear in the District Court, a party to civil proceedings might conceivably spend considerable resources pursuing a claim against a person believed not to be legally aided only to find at some later stage that the other party has protection from costs by the operation of s 45(2).

(footnotes omitted)

[25]   Applying these observations, Mr Cooper submits the steps taken prior to     16 June 2020 should not be covered by legal aid. Had Mr Lethlean known Mr Gill was legally aided (and therefore presumptively immune from costs), his client might have adopted a different litigation strategy. Mr Gill should not, therefore, benefit from the immunity for steps taken before the grant was notified to Mr Lethlean.

Discussion

[26]   I am satisfied the case of B v A can be distinguished from the present case. In B v A, the Judge made a finding as to liability for costs before legal aid was confirmed and so, for the purposes of costs, that party could not be considered a legally aided

4      May v May (1982) 1 NZFLR 165 (CA) at 170 and Manukau Golf Club Inc v Shoye Venture Ltd

[2012] NZSC 109, [2013] 1 NZLR 305.

5      B v A [2020] NZHC 765 at [13].

person. Importantly, Wylie J did not consider his decision was inconsistent with the case of AA v LA, where costs had not been determined before the grant of legal aid.6 In that case, Mander J acknowledged that legal aid grants could apply retrospectively and consequently provide s 45 immunity in relation to prior steps where no costs order has already been made, saying “[t]he question is not when legal aid was approved, but to which costs the grant of legal aid attaches”.7 As Mander J noted, “the principle lying behind s 45 is that those who are unable to pay for their own legal services (as evidenced by a legal aid grant), should ordinarily be excused from paying the costs of the other party.”8 Therefore, the immunity should attach to the costs for which legal aid is provided.9

[27]   I accept in the present circumstances, it was unfortunate the grant of legal aid was not confirmed by Legal Services earlier in the proceeding.10 It would have been helpful if counsel had signalled to Mr Lethlean’s lawyer that Mr Gill had applied for legal aid as Mr Lethlean’s litigation strategy was premised on Mr Gill ultimately being required to meet his costs. Nevertheless, legal aid was granted for the defence of the restraining order application and, with the involvement of a lawyer, the application was resolved expeditiously. At the point the District Court Judge was considering costs, I am satisfied Mr Gill was a legally aided person and s 45 applied to all steps taken in the proceedings.

Were there exceptional circumstances?

[28]   Mr Williams, counsel for Mr Gill, submits the Judge was wrong to consider there were exceptional circumstances here. For circumstances to qualify as exceptional, they have to be “quite out of the ordinary”.11 The circumstances need not be unique or unprecedented or very rare, but they cannot be circumstances which are regularly or routinely or normally encountered.12

6      AA v LA [2017] NZHC 646.

7 At [17].

8 At [19].

9 At [19].

10     There is no evidence that Mr Gill did not promptly advise he was legally aided on receipt of the grant.

11     Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA) at [31].

12     R v Kelly [1999] 2 WLR 1100 (CA) at 1107.

[29]   In Mr Williams’ submission, the following factors which the Judge identified as relevant to whether exceptional circumstances existed, were either irrelevant to Mr Lethlean’s application, or did not amount to exceptional circumstances:13

(a)Mr Gill’s conduct and behaviour that caused Mr Lethlean to seek a restraining order, as outlined in Mr Lethlean’s first affidavit sworn on 8 April 2020;

(b)Mr Gill’s conduct continued both after the police spoke to him about his behaviour and after Mr Lethlean’s solicitors requested that Mr Gill cease all contact;

(c)Although it did not constitute a notice of defence or affidavit setting out a defence, Mrs Gill filed a document on behalf of Mr Gill that largely refers to Mr Gill’s underlying grievance;

(d)Mr Lethlean did not regard the Gill document as a defence as such, but it prompted him to give notice to Mrs Gill of an application for a restraining order against her as an associated respondent;

(e)Mr Gill’s conduct after commencement of the proceeding is outlined in Mr Lethlean’s second and third affidavits sworn on 12 May and 18 May 2020 respectively;

(f)Mr Gill’s behaviour towards  Mr  Lethlean  continued  after  the  New Zealand   Police   served   harassment   notices   on   him   on 20 April 2020;

(g)Mr Gill was subsequently charged and convicted in respect of a charge of misusing a telephone. He received a sentence to come up if called upon within six months;

(h)Mr Gill’s conduct justified Mr Lethlean seeking a restraining order in the first place. His subsequent conduct caused Mr Lethlean to incur unnecessary cost in that Mr Lethlean would not have incurred the cost of filing the second and third affidavits if Mr Gill had ceased harassing Mr Lethlean.

(i)Mr Gill, did not oppose the making of a restraining order when the application was called on 19 May 2020.

[30]   Mr Williams makes the following submissions on the relevance of these factors. While he acknowledges the contact made with Mr Lethlean was persistent, he submits, looked at objectively, it was not threatening. For example, Mr Gill left a message saying:

13 At [28].

I mean I am not threatening you, I know where your house is and after quarantine I will be knocking on your door to sort the problem out with my lawyer, I mean, come on man, you have taken a lot of money off me and your company has lied to me, so sort it out please – thank you.

Mr Williams says this message expressly disavows any threat and emphasises that Mr Gill simply wants to resolve the dispute. Furthermore, Mr Gill makes it clear he wanted Mr Lethlean’s address to serve legal papers and not for some sinister reason. Mr Williams also points out the Facebook posts were aimed at the company and there was no direct reference to Mr Lethlean in any of them.

[31]   In terms of the allegation that Mr Gill continued his behaviour after police spoke to him on 30 March 2020, Mr Williams says the call Mr Gill made that day at

10.18 am could well have been before the police spoke to Mr Gill. The only activity after the police spoke to him is Facebook posts which do not mention Mr Lethlean personally.

[32]   In respect of the document Mrs Gill filed, Mr Gill accepts it was not a defence to the application and was simply an explanation of his grievance against EJA which his wife had written. The fact Mr Lethlean extended his restraining order application to include Mrs Gill should not be seen as a factor going to Mr Gill’s conduct or an award of costs against him. In any event, the application against Mrs Gill was subsequently discontinued.

[33]   In terms of Mr Gill’s conduct after the commencement of the proceeding, these include telephone calls to people other than Mr Lethlean and Facebook posts that refer to EJA, but not Mr Lethlean. Mr Williams says that even when the restraining order was made, it was accepted Mr Gill could make posts about the company as long as they were not defamatory, and were not directly about Mr Lethlean.

[34]   Mr Williams submits the references by Mr Gill to having an “explosives company” are being given an unnecessarily sinister tone by Mr Lethlean. Mr Gill’s Facebook posts included his company logo which says the company deals with “non-explosive expansive mortar cracking agent for rock and concrete breaking solutions”. Because Mr Lethlean knew that Mr Gill dealt with “non-explosive” demolition techniques, this points against the post being threatening and harmful.

[35]   Mr Gill does not accept his behaviour towards Mr Lethlean continued after the police served harassment notices on him on 20 April 2020, saying he made no attempt to communicate with Mr Lethlean or to post derogatory or threatening messages on social media in relation to him after this date.

[36]   In any event, he says that the issuance of the criminal harassment notice by the police negated the need for Mr Lethlean to proceed with his application for a civil restraining order. The criminal harassment notice achieved what the civil restraining order was intended to achieve. He also notes that Mr Gill has never been charged with breaching the criminal harassment notice.

[37]   While Mr Gill was subsequently convicted in respect of a charge of misusing a telephone, the victim was a government department. Mr Lethlean was not a victim of this offending and Mr  Gill  does  not  accept  this  subsequent  conduct  caused Mr Lethlean to incur unnecessary cost.

[38]   Finally, the fact Mr Gill did not oppose the restraining order is a factor that counts against his  conduct  warranting  a  costs  order.  In  all  the  circumstances, Mr Williams submits this is a case, as in RJR v DPR where the Court determined costs should not be awarded because:14

… [i]t is difficult to attribute to the applicant any conduct, as opposed to her action in commencing the proceedings, that caused the associated respondent to incur unnecessary costs.

The respondent’s submissions

[39]   Mr Cooper says the appellant’s submissions largely seek to relitigate whether there was harassing conduct and the seriousness of that conduct. The issues such as whether Mr Gill reasonably felt threatened by the content of the voice messages should not be relitigated now, particularly when there is no further evidence on that issue than was before the Judge.

[40]   While Mr Gill notes that many of the social media posts were directed to the company, not Mr Lethlean, Mr Cooper says Mr Lethlean is the sole director and

14     RJR v DPR FC Hamilton FAM-2007-019-1497, 27 May 2008 at [14].

shareholder of the company, so it was reasonable for him to conclude that social media posts were also being directed to him and he gave evidence to that effect.

[41]   In respect of the comments about explosives, Mr Cooper notes that no evidence was provided by Mr Gill to explain his comments in the posts and it is not for       Mr Lethlean to research the nature of the explosives before feeling threatened by the comments.

[42]   While Mr Gill submitted the criminal harassment notice provided the respondent with greater protection than the civil order, and so the civil restraining order was not required, Mr Cooper says Mr Lethlean was entitled to seek it. The benefit of a civil order is that Mr Lethlean is able to enforce the order himself and is not subject to the prosecution jurisdiction of the police. Mr Lethlean also wished to recover the costs of that application.

[43]   In any event, the Judge correctly concluded that Mr Gill’s behaviour continued after receiving the criminal harassment notice and this caused further costs by requiring further evidence to be filed.

[44]   Here, the Judge found that the appellant’s conduct continued after he was told to cease and desist by solicitors, after he was contacted by police, after the commencement of proceedings, and after he was served with criminal harassment notices. This was conduct which readily allowed the Judge to find there were exceptional circumstances warranting an award of costs.

Discussion

[45]   The matters which s 45(3) says may be taken into account in determining whether there are exceptional circumstances focus on conduct which causes the other party to incur unnecessary cost, or in some other way abuses the processes of the Court. While the Court of Appeal in Laverty v Para Franchising Ltd said exceptional circumstances were not confined to cases where the aided party’s conduct of the litigation warranted a mark of disapproval, the only other consideration the case

referred to was the legally aided person’s ability to pay costs.15 In my view, care needs to be taken over the extent to which conduct which triggers the litigation or arises outside the litigation, is relied on to conclude there are exceptional circumstances justifying an award of costs.

[46]   In the present case, the litigation proceeded under the Harassment Act 1997. It is inevitable, therefore, that Mr Gill’s initial conduct could be criticised, as an application for a restraining order necessarily requires there to have been behaviour which causes the applicant to stress or which threatens to cause the applicant distress. In that regard, I consider there was ample evidence that Mr Gill’s behaviour was not just distressing, but reached the threshold for the making of a criminal harassment order. It is telling that the FSCL declined to pursue the complaint further in the face of “repeated abusive and threatening contacting with [EJA]”. Similarly, the representative of Mediaworks who was contacted by Mr Gill found his call “concerning” and said he made “threats to your company”. However, the primary focus of s 45(3) is on whether the conduct of the litigation by the legally aided person warrants an award of costs.

[47]   In this regard, I do not consider the fact Mr Gill did not oppose the restraining order supports the existence of exceptional circumstances. It is clear that once Mr Gill was in receipt of legal advice, he accepted there were no grounds for opposing the restraining order and the matter was dealt with efficiently and appropriately.

[48]   The fact Mr Gill was convicted of a charge of misusing a telephone in respect of a third party was also irrelevant to these proceedings and cannot, in my view, contribute to there being exceptional circumstances which justify an award of costs.

[49]   Accordingly, I accept that some, but not all the factors relied upon by the Judge, contributed to there being exceptional circumstances.

[50]   In my view, the key factors which contribute to there being exceptional circumstances are:

15     Laverty v Para Franchising Ltd, above n 10, at [24].

(a)After the commencement of the proceedings Mr Gill continued to behave inappropriately. The plaintiff felt  he  was  required  to  file two updating affidavits to address the conduct of Mr Gill, and to provide the Court with the full picture. This unnecessarily increased the plaintiff’s expense.

(b)Although it was not a formal statement of defence the document filed by Mrs Gill on Mr Gill’s behalf would have required some consideration.

(c)Mr Gill’s continued comments on social media, to the media and to EJA staff members were not innocuous as suggested by Mr Williams. They reasonably exacerbated Mr Lethlean’s concerns about Mr Gill’s behaviour. Mr Gill’s relentless and threatening comments meant the plaintiff was compelled to provide a comprehensive restraining order application. Given how concerning Mr Gill’s comment were, the plaintiff reasonably felt he had to leave no stone unturned, to ensure the order was granted to protect his own safety. In this way Mr Gill’s conduct was exceptional and warrants a mark of disapproval.

[51]   In my view, those remaining circumstances still qualify as exceptional circumstances, though overall they did not significantly impact on the cost and duration of the litigation, particularly once counsel was involved. They demonstrate persistent threatening conduct which warranted some form of sanction by the Court in terms of a costs award even if modest.

Did the Judge fail to determine the means of Mr Gill before making an award of costs against him?

[52]   Mr Williams submits that any order for costs made against Mr Gill must not exceed an amount (if any) that is reasonable for him to pay having regard to all the circumstances, including the means of all the parties.16 However, he says the Judge did not have that information. Indeed he acknowledged there was scant information

16     Legal Services Act 2011, s 45(1).

before the Judge about Mr Gill’s means, aside from his affidavit of 16 June 2020 which refers to “financial pressures”. There was also no information before the Court about the means of Mr Lethlean.

[53]   Mr Williams points out that nothing in the evidence suggested Mr Gill did have the means to meet an award of costs. Mr Gill’s affidavit evidence is that due to the lockdown his business almost ceased to operate. While he confirmed he was able to put through a “successful insurance claim” he did not specify the amount, and he said that he had been granted legal aid.

[54]   Mr Williams submits that the fact Mr Gill was legally aided was relevant because it meant he did not have available funds to meet the cost of Court proceedings. Indeed, in Burrows v Hapag-Lloyd (New Zealand) Ltd, where exceptional circumstances were submitted to exist for cost purposes, the Judge concluded:17

I have no evidence of the means of the parties other than of course the fact that the plaintiff has received legal aid which would support a conclusion that the plaintiff’s means are limited. On the other hand I suspect that the defendant is a shipping company with significant means and is unlikely to be able to establish that the costs of being involved in this litigation have been so great as to effect its financial viabililty.

For that reason, the Judge made no order for costs.

[55]   Mr Williams submits that, in the absence of information as to Mr Gill’s means other than the fact he is legally aided, there was no basis on which the Judge could have assumed he could meet a costs award of more than $8,000.

Respondent’s submissions

[56]   Mr Cooper, however, submits that the Judge did consider the limited evidence as to means that was made available by Mr Gill. The Judge referred to that evidence in his  judgment, and made  a decision based on all  the  circumstances, including  Mr Gill’s conduct. Mr Cooper points out the evidence showed Mr Gill owned property in North Canterbury and a business. It could not be concluded, simply

17     Burrows v Hapag-Lloyd (New Zealand) Ltd HC Auckland CIV-2009-404-2489, 30 July 2009 at [7].

because he was legally aided, that he did not have the means to meet a costs award. It was incumbent on Mr Gill to present a statement of financial position if he wished to argue his means were so limited that it would be inappropriate to make a costs award.

Discussion

[57]   The Judge was clearly aware of the need to have regard to the means of all the parties. He summarised the information which was before him at [34]-[36] of his decision. While none of the information about Mr Gill’s means is conclusive, it showed that he had had a claim for income protection insurance accepted and it was anticipated he was able to return to work in his business. The Judge also had regard to Mr Lethlean’s position, insofar as he had incurred significant costs in bringing the application for a restraining order.

[58]   If, Mr Gill wished to argue he had insufficient means to meet a costs award if one was made, it was incumbent on him to provide that evidence. The Court is not obliged to solicit further evidence if the evidence the parties have provided is scant.

[59]   I am unpersuaded that, in all the circumstances, the Judge has erred. He did not fail to consider the means of the parties.

Did the Judge fail to explain why he made an award of costs in excess of scale?

Appellant’s submissions

[60]   Having determined an award of costs was both permitted under s 45(1) of the Act, and appropriate, Mr Williams submitted there was no explanation given as to why there was an uplift from scale costs. High Court r 14.6(3) sets out circumstances when a Court may order increased costs and none of those circumstances was present or was identified by the Judge as warranting increased costs. This was contrary to the general principle that the determination of costs should be predictable and expeditious.

Respondent’s submission

[61]   Mr Cooper, on the other hand, said that given the reasons the Judge provided for deciding there were exceptional circumstances and an award of costs was

appropriate, an uplift was plainly justified and could never meet the appeal criteria of being plainly wrong.

Discussion

[62]   Despite accepting, albeit on more limited grounds than the District Court Judge, there were exceptional circumstances, it does not necessarily follow there should be an uplift of costs. As Mr Williams’ submitted, the circumstances when a Court may increase costs generally focus on behaviour which has “contributed unnecessarily to the time or expense of the proceeding or step in it”.18 The only actions Mr Gill took which may have contributed to the expense of the proceeding, was continuing to post about the  company  and,  in  doing  so,  to  refer  indirectly  to  Mr Lethlean. As a consequence, Mr Lethlean filed two updating affidavits to the Court which I consider was reasonably done. However, part of the second affidavit was to support his application against Mrs Gill and the third affidavit was brief, simply attaching a Google review Mr Gill posted about EJA. In no other respect, did Mr Gill contribute unnecessarily to the time or expense of the proceeding. As soon as he had legal advice he consented to the order and the matter was resolved expeditiously. In my view, there was insufficient justification to warrant an uplift in costs. Looked at overall, the litigation was resolved efficiently, and cost effectively.

[63]   In the absence of an explanation for why an uplift in costs was awarded, I agree the appeal should be allowed on this basis.

Conclusion

[64]   The Judge was correct to find there were exceptional circumstances, although not all of the grounds relied on to reach this conclusion were warranted.

[65]   The Judge did not provide an explanation for why an uplift of costs should be ordered and I do not consider, having regard to the matters in r 14.6(3), that an uplift was required.

18     High Court Rules, r 14.6(3)(b).

[66]   Accordingly, the decision in the District Court is quashed. In its place, I make an order that the appellant is to pay the respondent costs in relation to the District Court proceedings calculated on a 2B basis, plus disbursements as fixed by the Registrar.

[67]   Given the parties have had mixed success, costs are to lie where they fall on this appeal.

Solicitors:

Patient & Williams, Christchurch Cavell Leitch Ltd, Christchurch