New Conservative v Television New Zealand Ltd

[2020] NZHC 3096

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001850

[2020] NZHC 3096

UNDER

the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016

BETWEEN

NEW CONSERVATIVE

First Applicant

LEIGHTON JAMES BAKER
Second Applicant

AND

TELEVISION NEW ZEALAND LIMITED

Respondent

Hearing:	On the papers
Appearances:	T Mijatov for the Applicants M Ferrier for the Respondent
Judgment:	23 November 2020

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Monday, 23 November 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Franks Ogilvie (S Franks and B Morten), Wellington, for the Applicants

MinterEllisonRuddWatts (M Ferrier and B Davies), Wellington, for the Respondent Counsel:  T Mijatov, Wellington, for the Applicants

NEW CONSERVATIVE v TELEVISION NEW ZEALAND LIMITED [2020] NZHC 3096 [23 November 2020]

[1]    This is an application by the respondent, Television New Zealand Ltd (TVNZ), for costs following my decision of 7 October 2020, with reasons given the next day on 8 October 2020. In that judgment, I dismissed an interlocutory application for an order requiring TVNZ to invite Leighton Baker, the second applicant, as leader of New Conservative, the first applicant, to participate in the 1 News Your Vote 2020 Multi Party Debate, which was scheduled to be held at 7.00 pm on 8 October 2020.1 The parties have not been able to agree on costs.

Factual background

[2]    New Conservative is a registered political party. It contested the 2020 general election, with 72 candidates standing in all general and Māori electorate seats. Prior to the general election on 17 October 2020, TVNZ organised a multi-party debate. Mr Baker was not invited. The applicants sought a judicial review of TVNZ’s decision not to invite Mr Baker. In a substantive statement of claim, they sought a declaration that TVNZ’s decision was unlawful. In an interlocutory application for interim relief, they sought an order requiring TVNZ to invite Mr Baker to participate in the debate. TVNZ opposed the application.

[3]    I heard the matter urgently on 7 October 2020.   After hearing argument,       I dismissed the interlocutory application. My reasons followed the next day. The applicants had not established a prima facie case that TVNZ had acted unreasonably, failed to take into account relevant considerations and/or unlawfully fettered its discretion. Accordingly, it was not necessary for the Court to consider the balance of convenience. The applicants later filed a notice of discontinuance of the substantive proceedings on 22 October 2020.

Legal principles (costs)

[4]    Costs are at the discretion of the Court. Part 14 of the High Court Rules 2016 provides guidance as to how that discretion is to be exercised. The general principle is that the unsuccessful party in a proceeding should pay costs to the successful party. Costs should be assessed by applying the appropriate daily recovery rate to the time

1      New Conservative v Television New Zealand Ltd [2020] NZHC 2650.

considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application. Ultimately, the overriding consideration when exercising the discretion to award costs is that any award ought to do justice between the parties.2

Costs claimed and opposition

[5]    The parties are agreed that TVNZ, as the successful party, is entitled to costs on a 2B basis and reasonable disbursements. The sole issue is as to quantum.

[6]TVNZ seeks costs and disbursements as set out in the tables below.

Scale costs (2B – $2,390 daily recovery rate)
Item	Description			Allocation	Amount	Comment
23	Filing notice of opposition to application for interim orders			0.6	$1,434.00
24	Preparation submissions	of	written	1.5	$3,585.00
30	Preparation of affidavit			1	$2,390.00	The allocation for item 30 is two days for the first hearing day. TVNZ has claimed one day on the basis that one (albeit a detailed and determinative) affidavit was filed.
32	Preparation for hearing			1	$2,390.00	The allocation for item 32 is two days for the first hearing day. TVNZ has claimed one day on the basis that the hearing did not last a full day.
26	Appearance counsel	of	principal	0.5	$1,195.00
27	Appearance counsel	of	second	0.25	$597.50
$11,591.50

Disbursements (excluding GST)
Court filing fee – notice of opposition	$ 95.65
Taxis between airport and court	$152.70
Return flights from Wellington to Auckland	$732.34
$980.69

2      Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5].

[7]    The applicants accept that costs and disbursements are payable to TVNZ. They accept that items 23, 24 and 26 are properly claimed on a 2B basis. However, they say that there is no basis for TVNZ’s claim for scale costs that do not apply to interlocutory applications, namely items 30 and 32. The  applicants  also  dispute item 27. They submit that given the brevity of the hearing (which lasted approximately two hours) and the lack of complexity in the subject-matter of the application, the Court should not certify for second counsel.

[8]    Next, as to disbursements, the applicants dispute TVNZ’s claim for taxis between the airport and court and the return flights from Wellington to Auckland. They say that they should not be liable for expenses relating to TVNZ’s decision to use Wellington-based counsel or for them to attend in-person in Auckland.

Analysis

[9]    First, I turn to disputed items 30 (preparation of affidavit) and 32 (preparation for hearing). Those items are listed in sch 3 of the High Court Rules under the heading “Preparing for affidavit hearing”. The applicants’ complaint is that the matter before this Court on 7 October 2020, for which costs are now sought, was an “Interlocutory application”, not an affidavit hearing. Indeed, it is for this reason that the applicants accept that items 23, 24 and 26 — which are listed in sch 3 under the heading “Interlocutory applications” — are properly claimed.

[10]   There is some merit to the applicants’ point. The preparation of an affidavit, which is claimed as item 30, is already appropriately recovered under item 23 (filing opposition to interlocutory application), which TVNZ also claims and which the applicants accept as being appropriate. Rule 7.25 of the High Court Rules provides that an affidavit must be filed and served with a notice of opposition to an interlocutory application. The preparation of an affidavit is therefore included in item 23. Further, I consider that item 24 (preparation of written submissions) adequately provides for TVNZ’s preparation for the hearing, which it claims separately as item 32.

[11]   Secondly, turning to item 27, the applicants submit that it is not appropriate for TVNZ to claim for the appearance of second counsel given the brevity of the hearing and the lack of any particular complexity involved in the proceeding. TVNZ, on the

other hand, submits that the costs claimed are reasonable, having regard to the complexity and significance of the proceeding, including the potential consequences of the mandatory injunction sought.

[12]   Although the proceeding was not lengthy or complex (whether legally or factually), I am of the view that it did warrant second counsel because of its significance and urgency. In particular, the opposition to the application had to be prepared urgently. Not only was a comprehensive 10 page affidavit prepared and sworn, but submissions were drafted, all in the space of a day or so. It is obvious that more than one counsel was required. The applicants were also represented by two counsel. I therefore agree with TVNZ that item 27 should be included in the schedule of costs payable.

[13]   Thirdly, as to disbursements, TVNZ claims expenses for its Wellington-based counsel to attend in-person the hearing in Auckland. This includes taxis between the airport and court and return flights from Wellington to Auckland. TVNZ submits that these expenses were specific to, and reasonably necessary for, the conduct of the proceeding. TVNZ also notes that, on 6 October 2020, before the proceeding was filed in Auckland, its solicitors wrote to counsel for the applicants relating to the hearing location  —  the  correspondence  recorded,  among  other  things,  that,  on  5 October 2020, the solicitors for the applicants had discussed with TVNZ’s General Counsel the filing of the proceeding in Wellington for the convenience of both parties.

[14]   In reply, the applicants say that while there had been some discussion between the solicitors for New Conservative and the in-house lawyer for TVNZ on 5 October 2020, no formal agreement was reached. Counsel for TVNZ had no formal basis for expecting the documents to be filed in Wellington, nor did either party seek leave to have the matter heard in a different registry from the proper registry, being Auckland. Counsel for the applicants clarifies that the conversation on 5 October 2020 took place after counsel had already made tentative arrangements to have the matter heard in the Auckland High Court. When later informed of the conversation, counsel was reluctant to disturb his provisional arrangements for necessary judicial availability in Auckland. Given the urgency of the matter, with the debate being scheduled for the evening of

8 October 2020, counsel was not willing to risk losing the benefit of the slot which had been provisionally organised with court staff in Auckland.

[15]   That is a totally understandable position for counsel to take. I also note that the correspondence from TVNZ’s solicitors dated 6 October 2020 states, “My understanding is that you [counsel for the applicants] propose filing the application in Auckland and are discussing with the Registry a hearing of the application as soon as this afternoon.” Therefore, TVNZ had some knowledge of the situation. That being said, I also acknowledge that TVNZ is entitled to its counsel of choice. However, that is not the issue at hand. The issue is whether it was “reasonably necessary”3 for TVNZ’s Wellington-based counsel to travel to Auckland to attend in-person. In the end, I am not satisfied that that was reasonably necessary. Justice Lang, in a minute dated 6 October 2020, gave leave to counsel “to attend the hearing remotely given that they are based in Wellington”. Counsel were therefore not required to attend in- person, nor would there have been any notable disadvantage in appearing remotely.

Costs awarded

[16]TVNZ is entitled to costs and disbursements as set out in the table below.

Scale costs (2B – $2,390 daily recovery rate)
Item	Description	Allocation	Amount
23	Filing     notice    of    opposition     to application for interim orders	0.6	$1,434.00
24	Preparation of written submissions	1.5	$3,585.00
26	Appearance of principal counsel	0.5	$1,195.00
27	Appearance of second counsel	0.25	$597.50
$6,811.50
Disbursements (excluding GST)
Court filing fee – notice of opposition			$95.65
Total			$6,907.15

Woolford J

3      McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR14.12.01(1)].