Howard v Accident Compensation Corporation

[2015] NZHC 351

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-6017 [2015] NZHC 351

UNDER

the Judicature Amendment Act 1972

IN THE MATTER OF

an application for judicial review

BETWEEN

MAREE HOWARD

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	On the papers
Judgment:	4 March 2015

JUDGMENT OF CLIFFORD J

[1]      On 3 October 2014 I issued a judgment granting an application by Accident Compensation Corporation to strike out an application by Mrs Howard for judicial review of various decisions.1

[2]      On ACC’s application, I subsequently awarded  costs in its favour.   ACC sought approximately $14,000.  I ordered Mrs Howard to pay costs of $2,500.2    In doing so I observed:

[6]     Mr and Mrs Howard have pursued a lengthy battle through the courts. They have had costs awarded against them on at least one occasion previously, in the Court of Appeal.   At the same time, I accept their honesty and genuineness and that an award of the amount sought by ACC is a significant sum of money for people in their position.

1      Howard v Accident Compensation Corporation [2014] NZHC 2431.

2      Howard v Accident Compensation Corporation [2014] NZHC 3141.

HOWARD v ACCIDENT COMPENSATION CORPORATION (Stay) [2015] NZHC 351 [4 March 2015]

[7]     On that basis, and in terms of r 14.7(g) I have decided not to award costs as ACC seeks.  At the same time, however, I think some award of costs is appropriate, given the outcome.

[8]     I therefore order that Mrs Howard pays costs in the sum of $2,500 to

ACC.

[3]      Mrs Howard has appealed my strike-out decision to the Court of Appeal. That Court ordered that Mrs Howard pay security for costs.   Mrs Howard is, as I understand matters, currently applying for leave to appeal that decision of the Court of Appeal to the Supreme Court.

[4]      Mrs Howard now applies for a stay of execution of my costs judgment, pending the outcome of that appeal.  She correctly notes that even if the High Court costs  order  is  not  separately appealed,  the  Court  of Appeal  has  jurisdiction to overturn or vary it where the substantive decision to which that costs order relates is successfully appealed.

[5]      Mrs  Howard  further  notes  that  Accident  Compensation  Corporation  is unlikely to suffer disadvantage from the stay of execution, and she points to the wide public policy and public interest issues that she says her appeal raises.

[6]      Mr Howard does not, however, point to any relevant disadvantage to her were she to be required to pay the costs awarded in the normal way.  In particular, there is no suggestion that doing so will affect her ability to prosecute her current leave application or the underlying substantive appeal.

[7]      As  my  costs  judgment  shows,  I  am  mindful  of  Mrs  Howard’s  personal position, and that of her husband who represents her in this long-running litigation. At the same time, and in terms of the principles that underlie the costs rules, namely that a successful party should be entitled to costs and that the risk of the imposition of a costs award against an unsuccessful party is properly a matter to be assessed by that party when determining whether or not to bring proceedings, I am not persuaded that a stay of execution is appropriate here.

[8]      My costs order was very much a recognition of the personal position of the Howards, whilst at the same time an indication that they needed to be aware of the implications of their litigation not only for themselves, but also for the Corporation in terms of the resources it needs to devote to responding to that litigation.

[9]      It  is  again  very  much  with  those  considerations  in  mind  that  I  decline

Mrs Howard’s application for a stay of execution.

[10]     In the circumstances, and notwithstanding the Corporation’s application, I

make no award for costs with respect to this matter.

“Clifford J”

Solicitors:

McBride Davenport James, Solicitors, Wellington for respondent.

Copy to Mr and Mrs Howard, Ohura