Maxberry v National Rifle Association of New Zealand Incorporated Society

[2016] NZHC 617

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-11244 [2016] NZHC 617

BETWEEN

MITCHELL REE MAXBERRY

Plaintiff

AND

NATIONAL RIFLE ASSOCIATION OF NEW ZEALAND INCORPORATED SOCIETY

First Defendant

ATTORNEY-GENERAL Second Defendant

On the papers
Judgment:	8 April 2016

JUDGMENT OF MALLON J (Costs)

[1]      I refer to my judgment determining Mr Maxberry’s application for judicial review.1     Mr Maxberry succeeded on his first cause of action.   He failed on his second cause of action.  I reserved costs noting that “it may be that the parties can take a pragmatic approach and agree that costs should lie where they fall”.2

[2]      The parties did not agree that costs should lie where they fall.  The plaintiff filed a memorandum seeking costs of $31,024.87 plus court fees and disbursements and an allowance for expert witness fees.  The first defendant filed a memorandum seeking a costs order in its favour of, as I understand it, a roughly similar amount. Each party claims they should receive an award of 50 per cent of 2B costs, together

with an uplift because of conduct of the other which is said to warrant this.

1      Maxberry v National Rifle Association of New Zealand Incorporated [2015] NZHC 3340.

2 At [101].

MAXBERRY v NATIONAL RIFLE ASSOCIATION OF NEW ZEALAND INCORPORATED [2016] NZHC

617 [8 April 2016]

[3]      Mr Maxberry’s success on his first cause of action would ordinarily entitle him to an award of costs in his favour.3     In respect of that cause of action Mr Maxberry seeks an uplift on the basis that the defendant belatedly filed an amended statement of defence and it was only then that Mr Maxberry could be sure of what aspects of its first cause of action were accepted.4

[4]      In  my  view  this  does  not  warrant  an  uplift  to  any  costs  award  in  Mr Maxberry’s favour.  The amended statement of defence essentially formalised what had  been  the defendant’s position  throughout.    Notwithstanding the concessions made by the defendant and that it had already revoked its decision, Mr Maxberry wished to proceed with his claim.  For reasons set out in my judgment it remained necessary for me to assess whether Mr Maxberry had established his claim and what

relief was appropriate.5    The work carried out by Mr Maxberry’s counsel on this

cause of action was not unnecessary despite the late filing of the amended statement of defence.

[5]      The  next  question  is  whether  costs  in  Mr  Maxberry’s  favour  should  be refused or reduced because he did not succeed on his second cause of action.  The defendant submits that this cause of action significantly increased its costs.6   It says the preponderance of the evidence (and all of the experts’ material), the submissions and the hearing time was devoted to this.   Mr Maxberry’s counsel acknowledges some of the expert evidence was directed to the second cause of action but says much of it was essential for understanding the issues between the parties that led to Mr Maxberry’s expulsion.

[6]      In  respect  of  this  cause  of  action  my  judgment  said  “[a]  good  deal  of evidence was filed on this cause of action.  For the most part it is not necessary for me to consider the detail of the evidence.”7    The evidence showed that the matter was fact-intensive and there were differences in view about the appropriate safety

measures.  As such the declaration sought was not suitable for judicial review.  The

3      High Court Rules, rule 14.2(a).

4      Rule 14.6(3)(b)(iii) or (d).

5      At [81] and following.

6      Rule 14.7(d).

7 At [96].

declaration was not appropriate for other reasons too, as set out in my judgment.8   It is now apparent that the defendant pointed out all these deficiencies in the cause of action in a “without prejudice save as to costs” letter dated 17 December 2014.  In these circumstances I consider there are grounds to refuse costs in Mr Maxberry’s favour.

[7]      The defendant submits that not only should costs be refused, there should be an award of costs in its favour.  This is on the basis that it made offers of settlement that would have been more beneficial to Mr Maxberry than the judgment obtained.9

To seek to demonstrate that point the defendant has annexed a bundle of correspondence between the parties in which settlement offers were made.

[8]      It is more straightforward to assess whether a party has achieved a worse outcome than what was offered by way of settlement where the issue is over money. Here I am asked to consider the bundle of correspondence and form a view about whether the outcome was less beneficial to Mr Maxberry than what he was offered in the course  of the  correspondence.   This  is  a  more subjective  assessment.   The defendant  may  consider  the  offer  it  made  was  more  beneficial,  whereas  Mr Maxberry reasonably may take a different view.

[9]      On the first cause of action the settlement offer could be said to be more beneficial to him than the judgment because the defendant offered to publish its revocation more widely than I ordered it to do.  Moreover the defendant agreed not to reinstitute disciplinary proceedings against him whereas no such order was made by me.  On the other hand the settlement proposed did not admit liability, was to be confidential  and  did  not  formally quash  the decision  as  invalid.    Mr  Maxberry achieved a measure of vindication from the judgment which was not available from the settlement offers.   Additionally the defendant was prepared  to accept in the settlement offers that  Mr Maxberry was  acting responsibly in  raising his safety concerns and took a reasonable position given his perception that the defendant had

not responded to his concerns adequately.  Given that, it would seem unnecessary for

8 At [98].

9      Rule 14.11(3)(b) and 14.6(3)(v).

the defendant to reinstitute the disciplinary proceedings even had it not offered to do so in the settlement offers.

[10]     In these circumstances this is not a clear case of Mr Maxberry having done worse in the judgment than what he was offered.  It is not a suitable case to exercise my discretion to award costs in the defendant’s favour.     Rather in my view the proper approach is to reduce the award of costs that would otherwise have been made in Mr Maxberry’s favour to nil given that the second cause of action was always going to have difficulties, the defendant had correctly pointed out those difficulties at an early stage, and the second cause of action materially added to the cost of the litigation.

[11]     Accordingly costs are to lie where they fall.

Mallon J