Grey District Council v Banks
[2015] NZHC 1252
•5 June 2015
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
CIV-2012-418-000005 [2015] NZHC 1252
BETWEEN GREY DISTRICT COUNCIL
Applicant
AND
DOUGLAS BANKS First Respondent
CHRISTINE SANDRA BANKS Second Respondent
Hearing: 3 June 2015 Appearances:
J Shackleton for Applicant
Respondents Appear in PersonJudgment:
5 June 2015
JUDGMENT OF GENDALL J
Introduction
[1] This is an application by the respondents for leave (and if leave is granted)
for review of a judgment of Associate Judge Matthews in this Court dated 31 March
2015. The application for review however is brought only insofar as it relates to Associate Judge Matthews’ order that the respondents are to pay the costs of the applicant Grey District Council (the Council) on the matter before him on a category
2B basis plus disbursements fixed by the Registrar.
[2] Some background to this whole matter is useful.
[3] The substantive proceeding in this matter CIV-2012-418-000005 is a claim by the Council for cancellation of the respondents’ ground lease of a property in
Blaketown, Greymouth for non payment of rent. The original substantive
GREY DISTRICT COUNCIL v BANKS [2015] NZHC 1252 [5 June 2015]
proceeding was heard on 11 and 12 March 2013, and 14 May 2013 in the High Court at Greymouth.
[4] A decision of this Court on the substantive proceeding was given by His Honour Fogarty J on 19 June 2013. In this decision His Honour gave judgment for the Council and on 5 September 2013 he delivered a costs judgment in the Council’s favour.
[5] Both of these judgments of Fogarty J have been appealed by the respondents to the Court of Appeal. These appeals are to be heard on 23 July 2015.
[6] On 28 January 2015 the respondents filed an interlocutory application relating to discovery in this Court which is the subject of the present application for review. In that interlocutory application the respondents sought discovery from the Council of two documents:
(a) Certain pages of an affidavit of Mr Paul Pretorius filed earlier in proceedings, this affidavit dated 9 August 2002 (the affidavit); and
(b) A Council report titled “A Way Forward” dated 10 August 2009 (the
Report).
[7] Initially the Council opposed the respondents’ interlocutory application on the grounds that either the High Court was functus officio or, alternatively, there were no issues as to discovery of the affidavit as it was already in the respondents’ possession and the Report itself was privileged.
[8] That interlocutory application for discovery was heard by His Honour Associate Judge Matthews in this Court on 24 March 2015. It was the subject of his judgment given on 31 March 2015 noted at [1] above.
[9] As I understand the position, the reason the respondents sought discovery of the affidavit was that they believed it would assist them in countering an objection maintained by the Council to the affidavit being accepted as evidence in the Court of Appeal. On this aspect, it seems that on 26 February 2015 the Council actually
wrote to the respondents withdrawing its objection to the admissibility of the affidavit in the Court of Appeal, and indeed the relevant parts of that affidavit are now included in the case on appeal before the Court of Appeal.
[10] Notwithstanding this, insofar as the Report was concerned, the Council maintained its alternative ground of opposition to the discovery application in relation to this document as it said it was privileged.
[11] There seems to be little question that the respondents nevertheless maintained their interlocutory application for discovery in its entirety right up to the hearing before Associate Judge Matthews. There, however, they did not pursue their application in relation to the affidavit and no order was made.
[12] So far as the discovery application relating to the Report was concerned, however, Associate Judge Matthews in his decision found that the High Court was functus officio. He made this finding on the basis that the challenge to the claim of privilege in the Report was a matter already referred to in the earlier judgment of His Honour Justice Fogarty and was the subject of part of the respondents’ appeal.
[13] Associate Judge Matthews nevertheless went on to find (obiter) that the Council was not obliged to disclose the Report to the respondents as he was satisfied also that it was privileged.
[14] Finally, in his 31 March 2015 decision at para [25] Associate Judge Matthews awarded costs to the Council on a 2B basis plus disbursements as fixed by the Registrar. It is this award of costs and disbursements which is the subject of the present application for review before me.
[15] The other related matters concerning the substantive appeal, together with the review or appeal of Associate Judge Matthews’ decision concerning the discoverability of the Report itself, are before the Court of Appeal and will be heard on 23 July 2015.
[16] It follows therefore that given:
(a) The respondents do not pursue their discovery application in relation to the affidavit (as it seems they have this document in any event);
(b)The Court of Appeal is to hear the respondents on the question of discovery of the Report;
(c) The respondents’ present application before me is for review of Associate Judge Matthews’ judgment only insofar as it relates to his award of costs and disbursements; and
(d)As I understand the position, the respondents from their submissions, may well have accepted the Associate Judge’s findings that the High Court was functus officio;
there are two questions before me to be determined here. These are:
(e) Whether leave should be granted to extend time for a review of Associate Judge Matthews’ decision insofar as it relates to the costs award; and
(f) If leave is granted whether the award of costs and disbursements should stand.
[17] The Council has provided a Notice of Opposition dated 21 May 2015 to the present application. Its position is that leave should not be granted to extend time for the review here of Associate Judge Matthews’ decision. If, however, leave is granted, the Council says the decision as to costs and disbursements should stand.
Jurisdiction for application for review
[18] The present application, as I have noted, is for leave and if leave is granted for review of the judgment of Associate Judge Matthews which is in question.
[19] As to the application for review itself, this is brought pursuant to s 26P Judicature Act 1908. McGechan on Procedure at para J26P.04 in dealing with s 26P states:
J26P.94 Discretion to review
Although a party has a right to seek a review of any order or decision made within an Associate Judge’s Chambers’ jurisdiction, the Judge has a discretion whether or not to grant a review. Factors include the thoroughness of the argument presented to the Associate Judge, the extent to which the Associate Judge’s decision was a fully reasoned one, and the extent to which significant fresh evidence, arguments or authorities have been introduced for the first time on review: Wilson v Neva Holdings Ltd [1994] 1 NZLR 481; [1993] 6 PRNZ 654 (HC).
Leave to extend time for review
[20] From the decision in Sutton v New Zealand Guardian Trust Company Ltd1 matters to be considered by the Court when determining in a case such as the present whether or not leave should be granted out of time are set out as:
(a) The length of the delay;
(b) The explanation for the delay;
(c) The risk of prejudice to a respondent in granting leave for a decision to be reviewed out of time; and
(d) The prospective merits of the proposed review.
[21] Here the application for review, as I understand it, should have been filed and served on or before 9 April 2015 but the Council was not served until 12 May 2015.
[22] The Council relies here on the decision of Williams v Attorney-General2 which it says has a certain similarity to the present case, but in any event Mr Shackleton for the Council contends that no adequate justification has been
provided here for the delay.
1 Sutton v New Zealand Guardian Trust Company Ltd [1989] 2 PRNZ 111 (HC).
2 Williams v Attorney-General [2015] NZHC 139.
[23] Further, Mr Shackleton contends the Council will suffer prejudice if the application for review is allowed to proceed out of time. This prejudice it is said is that the Council will incur costs in opposing the application in circumstances where it is doubtful that the respondents have the ability to pay a costs award.
[24] Whilst there may be something in these matters advanced on behalf of the Council, I am mindful that the issues here entailed a certain complexity and, given the dealings the respondents who are self-represented litigants had with the Court of Appeal, it was not entirely surprising that a short delay has occurred. Also, the claim by the Council that it will suffer prejudice in this case if leave is granted, in my view, is not especially strong.
[25] For current purposes I am prepared to grant leave to extend time for this application for review and I so order.
Review of Associate Judge’s costs decision
[26] Turning now to consider the substantive review of Associate Judge
Matthews’ costs decision, it is my view this is quickly disposed of here.
[27] It was the choice of the respondents in this case to bring its present discovery application and to pursue this through the Court.
[28] The Council successfully opposed that interlocutory application on the principal ground that the High Court was functus officio and the Council sought costs in its submissions to this Court. As I have noted above, Associate Judge Matthews agreed. He held that this Court was in fact functus and, in applying his discretion as to costs as provided for in r 14.1 of the High Court Rules, he awarded costs and disbursements to the Council.
[29] It is clear from r 14.2 High Court Rules that a party who fails with respect to an interlocutory application should pay costs to the party who succeeds and that is what has occurred here. In addition, in terms of r 14.8 the Court is directed to award costs with regard to interlocutory applications promptly when the matter is determined unless there are special reasons to the contrary.
[30] In my view there is nothing which has been placed before the Court which might remove this case from the ordinary principle that costs should follow the event in terms of r 14.2.
[31] Further, the amount of costs awarded here by Associate Judge Matthews to the Council insofar as their successful opposition to the discovery application was concerned was assessed on a category 2B basis. In my judgment this is appropriate. It correctly reflects the complexity and significance of that application.
[32] Further, it is clear that in a letter dated 26 February 2015 from the Council’s solicitors to the respondents they were advised that the Council withdrew its objection as to admissibility in the Court of Appeal of the sections of the affidavit in question, they invited the respondents to withdraw their application, and they indicated that the Council would rely on the letter in seeking a costs order if the discovery application was not withdrawn. Notwithstanding this the respondents, as I have noted, maintained their discovery application in its entirety.
[33] As I understand the position, Associate Judge Matthews also indicated at the hearing of the interlocutory application that he would consider the question of costs in his judgment. He has said as much at para [25] of that judgment.
[34] On all of these matters, the respondents in their submissions appear, as best I
can tell, to make two major points:
(a) Given that Associate Judge Matthews found the High Court was functus officio, then no costs should have been awarded as effectively no decision of the Court was made; and
(b)The respondents say they did not have the opportunity to make submissions on costs before Associate Judge Matthews.
[35] I now turn to consider these aspects.
[36] As to the respondent’s first major point that as the High Court was found to
be functus officio no award of costs was appropriate, in my view this argument is
quickly disposed of. Here, the Council was successful in opposing the respondents’ interlocutory application but nevertheless it was required to prepare its opposition to the respondents’ application and advance this at the hearing. As I have noted above, the respondents clearly failed with respect to their interlocutory application for discovery and in terms of r 14.2 they should pay costs to the council for their successful opposition.
[37] If the respondents might be successful in their argument here that no costs should follow the event, clearly there would be no sanction for a party who endlessly brought proceedings to dispute matters which had been resolved previously and the Court made findings that it was functus. This cannot be the position.
[38] There can be no doubt in my view that a decision was made by the Associate Judge in response to the respondents’ application that the Court was functus, this disposed of their discovery application which at one level arguably should not have been brought and therefore the award of costs was properly made. The Associate Judge’s decision here was a fully reasoned one, and presumably it followed thorough argument advanced for the parties.
[39] For these reasons I reject this first ground of review advanced by the respondents.
[40] Turning to the second major point put forward by the respondents as outlined at para [34](b) above, before me the respondents suggested that before Associate Judge Matthews they were not heard on this question of costs. Mrs Banks, who advanced submissions on behalf of the respondents, acknowledged that their position is not that there should never be an award of costs made in circumstances such as the present but that here the situation was unjust as they had not been heard before the costs order was made.
[41] On their face, those submissions are somewhat puzzling. At para [25] of his
31 March 2015 judgment Associate Judge Matthews stated:
The Council has succeeded and, as discussed at the hearing, is entitled to costs.
[42] If indeed costs matters were discussed at the hearing of the interlocutory application which is what the Associate Judge refers to in his decision, this does seem to fly in the face somewhat of the claim by the respondents that they were not heard on the issue of costs.
[43] Clearly, the interests of justice require that all parties should be heard on all issues such as questions of costs before a decision is given. Notwithstanding this, before me on the present review application, I have considered carefully all matters advanced including the respondents’ submissions in relation to the award of costs made against them by Associate Judge Matthews. There was nothing put before me which would in any way deflect the Court from the usual starting point in r 14.2
High Court Rules that costs in this case should follow the event. Thus I am satisfied the respondents, as unsuccessful parties here, should pay the costs of the Council which succeeded.
[44] Therefore I reject the contention put forward by the respondents that the
Associate Judge was wrong to award costs in favour of the Council.
[45] This ground advanced in support of the application for review also fails.
Outcome
[46] For all the reasons outlined above, the present application for review by the respondents fails.
[47] As to costs on the present review application, if these are sought by the Council and the parties are unable to reach agreement on the question of costs, this issue may be the subject of memoranda filed sequentially (no more than five pages each) which are to be referred to me and I will make a decision on costs based on the material then before the Court.
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Gendall J
Solicitors:
Simpson Grierson, Wellington
Copy to Respondents
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