Greendrake v McConnochie - [2024] NZCA 186

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA656/2023
[2024] NZCA 186

BETWEEN	EUGENE ANTHONY GREENDRAKE Appellant
AND	WAYNE ALEXANDER McCONNOCHIE Respondent

Hearing:	14 May 2024
Court:	Mallon, Lang and Moore JJ
Counsel:	Appellant in person No appearance for respondent
Judgment:	29 May 2024 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe appeal is allowed. The order for costs of $1,000 made in the High Court is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

The appellant seeks to appeal out of time a costs order of $1,000 imposed by Osborne J in the High Court (the $1,000 costs order).[1] The order was one of a number made against the appellant arising out of a private prosecution he brought against the respondent. The respondent abides the Court’s decision.

Background

[1]Greendrake v McConnochie [2023] NZHC 1414 [judgment under appeal].

The private prosecution arose out of an attack by a dog on two Pekin ducks on the respondent’s farm. The appellant brought charges against the respondent under the Dog Control Act 1996 and Animal Welfare Act 1999.[2]
[2]Dog Control Act 1996, s 57(2); and Animal Welfare Act 1999, s 28(a).
The case against the respondent was dependent on the reliability of a witness, a neighbour of the respondent. This witness gave evidence that she saw “the farmer” come along in his truck to the paddock where the ducks were found after the attack and let a black dog out, which she claimed went “straight at the ducks”.[3] The witness said that the farmer then picked up the ducks and put them in a ditch.
[3]Greendrake v McConnochie [2021] NZDC 19459 [verdict decision] at [12].
The trial judge, Judge Walker, formed the view that the witness’s evidence was not reliable for various reasons that he explained.[4] This left him with doubt that the respondent was the owner or possessor of the dog involved in the attack.[5] This meant that the charges were not proved beyond reasonable doubt.[6] Subsequently, on the respondent’s application, the Judge ordered the appellant to pay costs to the respondent of $10,000 (the $10,000 costs order).[7]
[4]At [43]–[46].
[5]At [47].
[6]At [48].
[7]McConnochie v Greendrake [2022] NZDC 25061 [$10,000 costs order].
In the meantime, the appellant applied to the High Court for leave appeal to Judge Walker’s decision. Osborne J declined the application and reserved the question of costs.[8] The Judge subsequently ordered that the appellant pay costs of $4,500 (the $4,500 costs order) in relation to his unsuccessful application for leave to appeal.[9]
[8]Greendrake v McConnochie [2022] NZHC 1369.
[9]Greendrake v McConnochie [2023] NZHC 778 [$4,500 costs order].
The appellant then filed an appeal against the $10,000 costs order in the High Court. He also applied for a stay of the costs order pending the appeal and to adduce further evidence in support of his appeal against costs. On 8 June 2023 these applications were…

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 Greendrake v McConnochie

Details

AGLC: Greendrake v McConnochie [2024] NZCA 186
Case: [2024] NZCA 186
Decision Date: 29 May 2024 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by Eugene Anthony Greendrake against Wayne Alexander McConnochie, concerning the imposition of a costs order by the High Court. The dispute arose from a private prosecution brought by Greendrake against McConnochie regarding an incident involving a dog attack on two Pekin ducks on McConnochie's farm. The High Court had imposed a costs order of $1,000 against Greendrake after he filed an out-of-time appeal against the order, arguing it was unjust and not supported by the statutory basis for such an award in criminal appeals.

The primary legal issue before the Court of Appeal was whether the High Court had the appropriate authority under the Costs in Criminal Cases Act 1967 to impose a costs order of $1,000 on Greendrake. The court considered whether the unsuccessful applications to stay the costs order and to adduce further evidence justified such an award. The court also reviewed whether the appellant was given a reasonable opportunity to be heard before the costs order was imposed.

The Court of Appeal held that the High Court's reliance on the High Court Rules 2016 to determine the costs order was inappropriate. The court emphasized that the applicable statutory framework, the Costs in Criminal Cases Act 1967, does not ordinarily support the awarding of costs in criminal appeals unless there are exceptional circumstances. The court found that the $1,000 costs order was excessive and not supported by the statutory criteria for such awards. Consequently, the appeal was allowed, and the $1,000 costs order was quashed.

The Court granted an extension of time for Greendrake to file the appeal and allowed the appeal against the $1,000 costs order, quashing the order.

Orders