Jones v Maihi

[2019] NZHC 2907

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-391

[2019] NZHC 2907

BETWEEN

ROBERT EDWARD JONES

Plaintiff

AND

RENAE MAIHI

Defendant

Counsel:	F Pilditch for plaintiff J Cundy for defendant
Judgment:	7 November 2019

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]                 This judgment addresses a costs issue that has been outstanding for some time, my having overlooked it.

[2]                 In a joint memorandum dated 24 October 2018 counsel then acting for the parties sought mutual orders for standard discovery. The order was made the same day on the papers. The discovery process including inspection was to have been completed by 21 December 2018. It wasn’t.

[3]                 By notice of application dated 21 December 2018 the plaintiff sought an order relieving him from providing electronic discovery, essentially on the basis that a good proportion of the documentation he was required to discover consisted of published material such as books and articles written by him over 50 years and that it would be unmanageable for him to have to provide it in electronic format.

JONES v MAIHI [2019] NZHC 2907 [7 November 2019]

[4]                 By notice of application dated 27 February 2019 the defendant sought an order for further and better discovery.

[5]Both applications were opposed.

[6]                 Associate Judge Matthews dealt with them following a hearing conducted by teleconference on 4 April 2019. The judge recorded both applications as having been resolved on terms agreed following discussion with counsel. In relation to the first application the plaintiff was directed to provide electronic discovery in respect of all material other than books and to provide the defendant with copies of his books. As to the second application the plaintiff was directed to discover all of his writings over the relevant period of time.

[7]                 The principles governing costs are well settled, and common ground between counsel. I quote from Mr Cundy’s summary of these, with which Mr Pilditch did not disagree:

(a)The party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.

(b)Costs on opposed interlocutory applications should be fixed when the application is determined.

(c)Success on more limited terms is still success for the purposes of costs.

[Footnotes omitted]

[8]                 Rule 14.8(1) which provides that in interlocutory matters costs should be resolved when they are concluded is expressed in strong terms, and I can see no valid grounds in this case for reserving costs. The only points made on the plaintiff’s behalf in this regard are that there may be issues as to the relevance of some of the material that he has been directed to discover and that the plaintiff is concerned about the defendant’s ability to pay any costs awarded against her at the conclusion of the litigation. Neither of those contentions holds water. The breadth of discovery has been determined by Associate Judge Matthews’ order and is plainly designed to ensure that the defendant has available to her all of the plaintiff’s published writings over the years so that these can be examined. The plaintiff’s anxiety in relation to the ability

of defendant to pay any costs award is not a relevant issue. The plaintiff has elected to sue the defendant and in doing so effectively takes a credit risk.

[9]                 Thus the issue essentially reduces itself to whether, in relation to each of the applications, the applicant — the plaintiff in the case of the first application, and the defendant in the case of the second — was substantially successful.

[10]             With respect to the first application, the outcome was comparatively evenly balanced. Associate Judge Matthews clearly saw the force in the plaintiff’s application that it was impractical to provide electronic discovery, at least in respect of published books, and his order reflects that. I do not see how, as is submitted on the defendant’s behalf, the fact that the plaintiff subsequently decided to provide electronic copies of everything including his published books affects the position. The view I take is that costs should be left to lie where they have fallen in respect of this application.

[11]             Turning to the second application it appears to me that the defendant was entirely successful. The plaintiff’s original affidavit of documents was plainly inadequate. As Mr Cundy points out, the plaintiff originally discovered 25 documents. Having been ordered to provide further and better discovery he filed a second affidavit of documents disclosing 207 documents. In my view the defendant is entitled to a costs order.

[12]             The plaintiff is ordered to pay the defendant’s costs on a 2B basis, together with such disbursements as may be allowed by the Registrar, in respect of the second application.

Associate Judge Johnston

Solicitors:

Langford Law, Wellington for plaintiff

LeeSalmonLong, Auckland for defendant