King v South Waikato District Council

[2013] NZHC 1814

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-000020 [2013] NZHC 1814

BETWEEN  CAROLYN ROSE KING Appellant

ANDSOUTH WAIKATO DISTRICT COUNCIL

Respondent

Hearing:                   (On the papers)

Counsel                   SA McKenna for Appellant

MJ Hammond for Respondent

Judgment:                18 July 2013

JUDGMENT OF BREWER J (Costs)

This judgment was delivered by me on 18 July 2013 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Grantham Law (Taupo) for Appellant

Tompkins Wake (Hamilton) for Respondent

KING v SOUTH WAIKATO DISTRICT COUNCIL [2013] NZHC 1814 [18 July 2013]

[1]      On 27 March 2013, I dismissed an appeal brought by the appellant against her conviction in the District Court under s 57(2) of the Dog Control Act 1996.1

[2]      The  respondent  now  seeks  costs.     The  scale  costs,  according  to  the respondent, would be approximately $226.   The respondent’s actual costs on the appeal are $13,063.43 inclusive of GST.

[3]      The respondent is a local authority with a statutory responsibility to ensure that the public and domestic animals are safe from dangerous dogs.  The appellant was charged in relation to a dog she owned which invaded a rabbit hutch and killed a domestic rabbit.

[4]      This was not a simple case.  The appellant runs a charitable enterprise which finds new homes for unwanted dogs.  The dog in question had been taken in by her for re-homing.  The appellant, a few days later, gave custody of the dog to others on a trial basis.  It was in the custody of the other people when it was released outside at night and attacked the rabbit.

[5]      The appellant was prosecuted and  convicted in  the District Court.2     She appealed to the High Court.   The appeal was allowed and one of the convictions against her was quashed.3   Heath J remitted the charge relating to the rabbit back to the District Court for rehearing.  It was an appeal on conviction resulting from the rehearing which came before me.4

[6]      The respondent is understandably vexed.  It has spent a great deal of money prosecuting the appellant through two District Court trials and two appeals.   I, of course, am looking only at the case before me.

[7] The relevant statute is the Costs in Criminal Cases Act 1967. I have a discretion whether to make an order for costs. Pursuant to s 8(5) of the Act, if in

determining an appeal I conclude that it was frivolous or vexatious then I can order

1      King v South Waikato District Council HC Rotorua CRI-2013-463-20, 27 March 2013.

2      South Waikato District Council v King DC Tokoroa CRI 2011-77-273, 2 September 2011.

3      King v South Waikato District Council HC Rotorua CRI 2011-463-73, 4 September 2012.

4      South Waikato District Council v King DC Tokoroa CRI-2011-077-273, 24 January 2013.

the whole or part of the costs of any party to the proceedings incurred in disputing the frivolous or vexatious matter be paid.

[8]      The respondent submits:5

In all the circumstances it is respectfully submitted that the discretion of the Court should be exercised in favour of an award of costs which goes some way to recompense the respondent’s ratepayers for the substantial costs to which the respondent has been put for what can objectively be properly described as the appellant’s crusade.

[9]      While I understand the respondent’s position, I am unable to agree with it. As Mr McKenna for the appellant submits, the appeal was based on the contention that the appellant had done everything she could reasonably have been expected to do  to  ensure  that  the dog was  in  the  care of  responsible people.   There is  no precedent case as to what steps a dog owner must take in giving custody of a dog to third parties in order to have a total absence of fault if the dog, while in the custody of the third parties, attacks a person or domestic animal.  In short, there were proper grounds for bringing the appeal and no aspect of it was frivolous or vexatious.

[10] The Costs in Criminal Cases Act is outdated and in need of reform.6

However, costs on an appeal will not normally be awarded above scale (or even at scale) unless there are clear reasons going to the way in which the unsuccessful appellant has conducted itself.

[11]     In this case, I decline to award costs.

Brewer J

5      Memorandum on behalf of the respondent as to costs, at para 16.

6      Law Commission, Costs in Criminal Cases: Report 60 (Wellington, May 2000)