Hunter v Police
[2016] NZHC 1057
•19 May 2016
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV 2015-441-84 [2016] NZHC 1057
BETWEEN BRIAN DAMIAN HUNTER
Appellant
AND
NEW ZEALAND POLICE First Respondent
AND
ROBERT CHARLES PEACOCK Second Respondent
Hearing: 27 April 2016 Counsel:
Appellant in Person
R S May for First Respondent
M T Henderson for Second RespondentJudgment:
19 May 2016
JUDGMENT OF BROWN J
[1] A dispute concerning the ownership of property seized from the appellant by the Police pursuant to a search warrant was determined in a decision of Judge B M Mackintosh in the District Court at Hastings on 27 February 2015. The appellant’s application for the return of the property was declined and an order was made that the property be provided to the second respondent on behalf of Orari Gorge Station.
[2] Although the appellant did not lodge an appeal against that decision, he explained in the course of his submissions on the present appeal that he would have wished to challenge that decision but he was under the misapprehension that it was
necessary for him to await the costs decision before doing so.
HUNTER v NZ POLICE [2016] NZHC 1057 [19 May 2016]
[3] Consequent upon the 27 February 2015 decision, both the first and second respondents sought orders for indemnity costs against the appellant. Failing that, they sought increased costs or costs pursuant to schedule 2B.
[4] In a judgment dated 21 July 2015 Judge Mackintosh declined to award costs in favour of the respondents on either an indemnity or increased costs basis. In awarding schedule 2B costs the Judge said:
[13] Mr Hunter submits costs should be where they fall. I do not agree they normally follow the successful party. Mr Hunter took a risk in retaining the property purporting a civil lien. Subsequently it has been determined he had no basis to do so. In the result the first and second defendants have incurred costs and entitled to an award. In my view in respect of the first and second defendant costs on a 2B basis are appropriate against the plaintiff.
[5] On 24 August 2015 the appellant filed a notice of appeal which contained the following grounds of appeal:
2.1 Judicial bias.
2.2 Erred in finding that, having identified that this was a civil dispute,
the police had an “obligation to investigate”.
2.3Erred by stating that Her Honour had no knowledge (sic) other similar proceedings brought by the Applicant, as she was the Judge who dealt with that matter in the Napier District Court [CIV-2014-041-244] and issued several minutes.
2.4Erred in finding that counsel for the Applicant had been unable to obtain instructions.
2.5 Erred in granting judgment for costs to the defendants.
[6] On 9 November 2015 Collins J made a timetable order for the filing of submissions. The respondents’ submissions were filed in accordance with the timetable but the appellant’s submissions, which were to have been filed on
12 April 2016, were not received by the Court until the day prior to the hearing.
Approach to appeal
[7] The discretionary nature of cost decisions and the primary principle that the unsuccessful party should pay costs are explained in the judgment of the Supreme Court in Manukau Golf Club Inc v Shoye Venture Ltd:1
[7] Although r 53 of the Court of Appeal (Civil) Rules, like r 14.1 of the High Court Rules, renders costs decisions discretionary, the discretion has never been unfettered and must be exercised judicially. Particularly since detailed costs regimes were introduced in the High Court (in 2000) and the Court of Appeal (in 2008), the general discretion has been held to be qualified by the specific rules. As the Court of Appeal said in Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt Ltd), the overall structure of the costs regimes now means “there is a strong implication that a Court is to apply the regime in the absence of some reason to the contrary”.
[8] A fundamental principle applying to the determination of costs in all the general courts in New Zealand is that costs follow the event. Because we are dealing with a Court of Appeal costs decision, we cite the principle as set out in r 53A(a) of the Court of Appeal (Civil) Rules, but the same principle underlies costs in the District Court, the High Court and this Court:
The party who fails with respect to an appeal should pay costs to the party who succeeds.
(footnotes omitted)
[8] In my view it is apparent that Judge Mackintosh applied that fundamental principle. I consider that the second sentence in [13] of her decision2 was not accurately transcribed and that the Judge intended that there should be a full stop in the first line after the word “agree”.
[9] Turning to the grounds of appeal, I consider that there is simply no basis for the suggestion that there was bias on the part of the Judge. An allegation of bias cannot be levelled by a party, against whom an award of costs is made, merely
because the Judge ruled against that party in the substantive hearing.
1 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305.
2 At [4] above.
[10] So far as the second ground is concerned, the point which the Judge made at [7] was that the Police had an obligation to investigate because Mr Peacock had made a complaint of theft which led to the execution of the search warrant. There is no inconsistency with the Judge’s observation that the case always had the hallmarks of a civil dispute.
[11] Similarly the contention in ground 2.3 is taken out of context. At the relevant part of the judgment the Judge was simply stating that she would address the issue solely by reference to the facts of the particular case:
[6] The police maintain that the defendant has acted vexatiously and commenced unnecessary proceedings and that the application is a series of meritless applications with the New Zealand Police named as defendants. I have no information regarding other proceedings in relation to this defendant and I do not intend to take that submission into account as a factor in this costs decision. I intend to make this decision on the facts as they are in this particular case.
[12] Similarly [14] of the judgment puts in proper context the matter which the appellant endeavours to raise by ground 2.4:
[14] Mr Church seeks leave to withdraw. He has been unable to ascertain instructions from Mr Hunter. Mr Hunter disputes this and has continued to file memoranda personally. Clearly the relationship has become intenable (sic). Leave to Mr Church to withdraw is granted.
[13] In my view there is no basis for complaint either on the grounds notified in the notice of appeal or by reference to the point which Mr Hunter raised in the course of argument concerning the scope of the Judge’s warrant.
[14] There was only one matter in respect of which I had an initial concern. Rule 14.14 of the District Court Rules 2014 states:
Defendants defending separately
14.14 The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if–
(a) several defendants defended a proceeding separately; and
(b) it appears to the court that all or some of them could have joined in their defence.
[15] The effect of this Rule is normally to require a plaintiff to pay only one set of costs to successful defendants who defend separately but who could have properly joined in their defence. In the present matter the Judge awarded costs to both respondents but did not advert to r 14.14.
[16] In order that I could consider the nature of the claims made against the two respondents I asked to see the pleadings file in the substantive matter in the District Court which was not included in the High Court appeal file. I am grateful to Mr May for assembling that file and delivering it to the Court on 13 May 2016.
[17] A perusal of that file disclosed that the statement of claim dated 7 May 2013 was an application filed under s 159 of the Search and Surveillance Act 2012 against the Police. In due course the Police filed an application for interpleader relief, which application sought costs on an indemnity basis. Such a request for costs was consistent with what is now r 4.64 of the District Court Rules 2014.
[18] In the circumstances where it was necessary for the Police to file an interpleader application and where in due course an order was made for delivery of the contested property to the second respondent, I accept that it was appropriate for costs to be awarded in favour of both the first and second respondents. So far as the first respondent was concerned, the costs related to the interpleader application. So far as the second respondent was concerned, it was the successful party.
[19] For these reasons the appeal against the costs judgment of Judge Mackintosh is dismissed. However in respect of this judgment I award only one set of costs
which are to be shared equally between the two respondents.
Brown J
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