Murray v Police
[2012] NZHC 2152
•24 August 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000073 [2012] NZHC 2152
DAVINA VALERIE MURRAY
Applicant
v
NEW ZEALAND POLICE
Respondent
Hearing: On the papers
Judgment: 24 August 2012
JUDGMENT OF WINKELMANN J [on applications for costs]
This judgment was delivered by me on 24 August 2012 at 12 noon pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors
Nigel Cooke, Ponsonby Meredith Connell, Auckland Bell Gully, Auckland
Counsel
Barry J Hart, Ponsonby
MURRAY V NEW ZEALAND POLICE HC AK CRI-2012-404-000073 [24 August 2012]
[1] On 30 March 2012 I dismissed an appeal by Ms Murray against the District Court’s refusal to grant name suppression in connection with charges she faced under the Corrections Act 2004.
[2] The respondent New Zealand Police, together with the media companies APN Holdings and TVWorks Ltd (“the media organisations”), who were jointly represented and took an active role in opposing Ms Murray’s appeal in this Court, now apply for costs in respect of that appeal.
[3] The procedural history is as follows. On 25 November 2011, the Police laid a
charge against Ms Murray under the Corrections Act 2004 (“the first charge”). On 1
March 2012 Judge Dawson refused an application for name suppression in relation to the first charge, and an appeal against that decision was set down for hearing before me on 30 March 2012.
[4] On 30 March 2012, prior to my hearing the appeal against Judge Dawson’s decision, the Police laid two further charges against Ms Murray under the Corrections Act (“the further charges”). Ms Murray applied for name suppression in relation to the further charges. Unlike the earlier application for name suppression, this second application for name suppression had to be dealt with under the Criminal Procedure Act 2011, which had recently come into force. Judge Field was inclined to decline the application, but thought it prudent that interim suppression be granted, given that the appeal against Judge Dawson’s decision was still to be heard. On that basis, the Judge granted interim name suppression to continue until 18 April 2012 but gave leave to the parties to apply to the Court consequent on the outcome of the
30 March appeal.
[5] On 30 March 2012, I dismissed the appeal against Judge Dawson’s decision. However, given the interim order made by Judge Field earlier that day, I continued name suppression until further order of the Court. Because the fresh application for name suppression was under the new Act and the District Court had yet to determine it, my dismissal of the appeal was not therefore necessarily dispositive of it. I indicated that this proceeding should be listed before me again on 4 April 2012 and
recorded the expectation that the District Court would have dealt the second application for suppression in relation to the further charges by that time.
[6] The District Court gave a hearing date of 3 April 2012 for the second name suppression application, but neither Ms Murray nor her counsel, Mr Hart, appeared at the hearing. Mr Cooke appeared on instructions from Mr Hart but could not advance matters other than to say that Mr Hart was unwell and that he thought Ms Murray was in Gisborne. In the circumstances, Judge Dawson adjourned the application through to 11 April 2012 and continued interim name suppression until that time.
[7] At the 4 April hearing before me Mr Cooke again appeared on instructions from Mr Hart. He confirmed that the intention was to continue with the application for name suppression in respect of the further charges. Given that the suppression matter in relation to the further charges was not before me, I continued suppression in respect of the first application, but again only on an interim basis pending the decision of Judge Dawson on 11 April 2012. I indicated that all name suppression matters should be listed before me again on 16 April 2012 and that at that stage, suppression in relation to the further charges having been decided by the District Court, I would be in a position to resolve the matter or hear any appeal with regards to the further charges.
[8] On 11 April 2012, Ms Murray appeared in the District Court before Judge Dawson. Counsel appeared on behalf of Mr Hart but the Judge noted that the appearance was again made without being fully briefed. Judge Dawson declined the application for name suppression on the further charges but continued interim name suppression until the hearing set down before me on 16 April, following an indication that an appeal would be made.
[9] On 16 April 2012, Mr Hart advised the Court that Ms Murray would not be appealing Judge Dawson’s decision of 11 April. All name suppression was lifted.
[10] In anticipation of the appeal that was set down before me for 16 April, the respondent filed submissions on the appeal and an application for costs. The media organisations also filed submissions in support of an application for costs on 27 April
2012.
[11] Following the receipt of those submissions on costs, I directed that any submissions in opposition be filed by Friday 11 May 2012. On that date, I received a memorandum from Mr Hart, on behalf of Ms Murray, seeking an extension of time until the following Friday. I granted that indulgence, but again the timetable was not complied with.
[12] On 31 May 2012 a further memorandum was received from Mr Hart on behalf of Ms Murray. He detailed Ms Murray’s attempts to engage Mr Katz QC and then latterly another counsel, Ms Kennedy. Given the circumstances and the change in representation, an extension of time until 21 June 2012 was sought. Having lost all confidence in the commitment of Mr Hart to comply with any timetable order I might make, I did not extend the time. In any case Ms Murray is yet to file any submissions.
[13] On 13 July 2012, I received a further memorandum from the respondent, asking that in the absence of any submissions from Ms Murray, the Court should determine the application.
[14] On 16 July 2012, I received a memorandum from Mr Katz QC clarifying that he was not representing Ms Murray and had not been involved in the preparation of any submissions on that basis.
[15] Given the protracted nature of this proceeding to date and the indulgences this Court has already granted Ms Murray, I now intend to proceed as the respondent suggests and determine the application before me without the benefit of any submissions from Ms Murray.
[16] The media organisations are interested parties who were given a right to make submissions at the hearing, they are entitled to costs if grounds for an award are made out. Under s 210 of the Criminal Procedure Act 2011 the media will have standing to be heard in relation to any application for a suppression order, and any application to renew, vary or revoke that order. Although that Act does not apply to these proceedings, the news media has long been recognised as acting as a “watchdog” or surrogate for the public in attending and reporting court proceedings. It has therefore been common practice, even prior to the commencement of the Criminal Procedure Act 2011, for courts to give the media a right of audience on these matters.
[17] There is power to award costs under s 8 of the Costs in Criminal Cases Act
1967. That section provides:
8 Costs on appeals
(1) Where any appeal is made pursuant to any provision of the Summary Proceedings Act 1957 or the Crimes Act 1961 the Court which determines the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.
(2) No defendant or convicted defendant shall be granted costs under this section by reason only of the fact that his appeal has been successful.
(3) No defendant or convicted defendant shall be refused costs under this section by reason only of the fact that the appeal was reasonably brought and continued by another party to the proceedings.
(4) No District Court Judge or Justice or Community Magistrate who states a case in accordance with Part 4 of the Summary Proceedings Act
1957 and no Judge who states a case shall be liable to costs by reason of the appeal against the determination.
(5) If the Court which determines an appeal is of opinion that the appeal includes any frivolous or vexatious matter, it may, if it thinks fit, irrespective of the result of the appeal, order that the whole or any part of the costs of any party to the proceedings in disputing the frivolous or vexatious matter shall be paid by the party who raised the frivolous or vexatious matter.
(6) If the Court which determines an appeal is of opinion that the appeal involves a difficult or important point of law it may order that the costs of any party to the proceedings shall be paid by any other party to the proceedings irrespective of the result of the appeal.
[18] In R v Leitch the Court of Appeal commented, in the context of an application under s 8 that:[1]
The principles governing applications for costs are well settled. There is no presumption for or against granting of costs and so costs are not to be granted merely because the appeal has succeeded. An application for costs is invoking the court's discretion and must show good grounds why the discretion should be invoked in the applicant's favour.
[1] R v Leitch CA195/97, 22 December 1997.
[19] Both the respondent and the media organisations contend that the grounds on which Ms Murray sought name suppression had no basis and that from its commencement her appeal had no prospect of success. It is argued further that Ms Murray has shown a disregard for the Court’s processes in that she failed to appear at Court dates, she filed affidavits without leave, and she failed to properly instruct counsel. Furthermore, the respondent and the media organisations say the applications and appeals subsequent to my decision of 30 March were made by Ms Murray for tactical and strategic reasons which the Court cannot condone. All of this, they say, amounts to the ‘good grounds’ which the Court of Appeal referred to in Leitch.
[20] Pursuant to the Act, any award of costs must be determined in accordance with the Costs in Criminal Cases Regulations 1987.[2] The schedule to those regulations provides for a recovery rate of $226 per half day or part thereof in relation to an appeal such as the present. This matter having been called before me on 30 March, 4 April and 16 April 2012, the respondent and the media organisations would be entitled to costs of $678, if costs were awarded pursuant to the regulations.
[2] Costs in Criminal Cases Act 1967, s 8(1).
[21] However the actual costs incurred by the parties were far greater than the
$678 provided for by the schedule, with both the respondent’s and the media organisations’ legal bills coming to in excess of $4000. Consequently, both the respondent and the media organisation seek costs in excess of the scale in the regulations.
[22] In this regard, the respondent relies on s 8(5) of the Act, which provides:
If the Court which determines an appeal is of the opinion that the appeal includes any frivolous or vexatious matter, it may, if it thinks fit, irrespective of the result of the appeal, order that the whole or any part of the costs of any party to the proceedings in disputing the frivolous or vexatious matter shall be paid by the party who raised the frivolous or vexatious matter.
[23] It says that Ms Murray’s appeal was plainly so lacking in merit that it was frivolous and that she should have recognised that fact. In those circumstances the respondent seeks reimbursement of its actual costs on the appeal.
[24] Although the media organisations refer to s 8(5) in their submissions, their claim for increased costs is also premised on s 13(3) of the Act. That subsection provides:
(3) Where any maximum scale of costs is prescribed by regulation, the Court may nevertheless make an order for the payment of costs in excess of that scale if it is satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.
[25] They rely on the decision of Harrison J in Law v Wilson where s 13(3) was applied. There he said:[3]
...the whole purpose of the exception allowed by s 13(3) is to cover cases such as this – where either the prosecutor or defence has been put to additional cost by the way the other party has elected to conduct his or her case. A party who makes a conscious decision to add the degree of complexity inherent in a decision to lead further evidence must acknowledge and face the risk of adverse cost consequences.
[3] Law & Anor v Wilson HC Auckland A110/01, 17 March 2003 at [15].
[26] Section 13(3) is directed to a case which is either inherently complex or becomes so through the conduct of a party. That is not the situation here. This proceeding raised throughout, a simple issue. The cost to the parties came rather from the wasted appearances caused by Ms Murray’s conduct.
[27] I am not persuaded that this appeal was from commencement frivolous or vexatious. Although most of the grounds advanced had no prospect of success, I do not categorise the medical grounds advanced by Ms Murray in that way. A failure to
ultimately succeed with a ground of appeal is not evidence that the appeal was frivolous or vexatious.
[28] However, in light of the procedural history of this appeal, the respondent and media organisations are on stronger ground in relation to the post 30 March conduct of the proceeding. In my view the proceeding was kept alive in a vexatious manner after the initial 30 March 2012 judgment; vexatious in the sense that Ms Murray used the processes of the Court purely for strategic delaying purposes. Ms Murray obtained interim orders to enable her to pursue name suppression on the new charges, on the basis that she had arguments to make which would meet the test under the Criminal Procedure Act. However, her complete failure to diligently pursue that avenue resulted in wasted appearances for the respondents and media organisations.
[29] Although Mr Hart was unwell on 3 April 2012, that did not excuse Ms Murray from instructing new counsel on what was a straightforward matter, or from attendance herself. Because of these failures on Ms Murray’s part, the proceeding had to be listed again in the District Court on 11 April and the proceeding called before me on 16 April. When the application was called again on 11 April counsel again was not fully briefed. I also note that notwithstanding the further lack of success on 11 April 2012 in the District Court, interim suppression was sought and obtained by Ms Murray to carry the position over to the next appearance in the High Court. At that time Mr Hart advised that Ms Murray would not be appealing Judge Dawson’s decision of 11 April.
[30] Based on this chronology I am satisfied that the interim orders obtained on 30
March, and continued on 4 April were obtained purely for the purposes of delay. These proceedings were therefore used for that collateral purpose. Further colour is added to this by other aspects of Ms Murray’s and her counsel’s disregard for this Court’s processes and orders. Ms Murray failed to seek leave to file further affidavits on appeal. She has also failed to file submissions in respect of the issue of costs in compliance with existing timetable orders, even though she has sought extensions on two occasions and put opposing counsel to the cost of responding to those applications.
[31] For these reasons, although not initially properly categorised as frivolous or vexatious because of the subject matter, I consider that Ms Murray’s conduct of this proceeding after 30 March 2012 is properly construed as frivolous and vexatious. The appropriate way of dealing with the costs is to allow the respondents and media organisations actual costs for preparation and appearances on 4 April and 16 April
2012. I also consider that they should be entitled to any costs incurred in responding to Ms Murray’s applications for extensions of time to file memoranda in relation to costs. The respondent and media organisations may file one page memoranda setting out these actual costs for my consideration.
Winkelmann J
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