Nicholls v Airways Corporation of New Zealand HC Tauranga CIV-2010-470-586

[2011] NZHC 1397

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2010-470-586

BETWEEN  GRANT STANLEY NICHOLLS Plaintiff

ANDAIRWAYS CORPORATION OF NEW ZEALAND

Defendant

Hearing:         (on papers) Appearances: Plaintiff in person

K Murray for the Defendant

Judgment:      31 October 2011 at 4:00 PM

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 31 October 2011 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Counsel / Solicitors / Parties: Mr G S Nicholls, Tauranga

Mr K Murray, Barrister, Wellington

Ms H Cruse, Manager Legal Services and Company Secretary, Airways Corporation of NZ,

Wellington (instructing solicitor)

NICHOLLS V AIRWAYS CORPORATION OF NEW ZEALAND HC TAU CIV-2010-470-586 31 October 2011

[1]      The defendant has sought costs on a 2B basis.   This is opposed by Mr

Nicholls.

[2]      Rule 14.1(1) of the High Court Rules provides that “all matters are at the discretion of the Court if they relate to costs”.  This discretion is not unfettered.  It must be exercised having regard to principles set out in the High Court Rules and the leading  authorities  in  respect  of  the  application  of  those  principles.    The  first recorded  principle,  in  r 14.2(a)  is  that  “the  party  who  fails  with  respect  to  a proceeding or an interlocutory application should pay costs to the party who succeeds”.

[3]      The  defendant  has  succeeded  in  all  respects.    The  essential  question  is whether Mr Nicholls has raised matters which would justify my not applying the normal rule that costs follow the event.   Mr Nicholls has advanced a number of grounds in support of his opposition.  I will note some of these and my conclusion in respect of them.

[4]      At the outset Mr Nicholls submitted that the proceeding, in which declaratory relief was sought, was a matter of public interest.   There are matters of public interest in the proceeding, but that is the case with many proceedings before a Court. This is not a case which in my judgment comes within the category of test cases for matters of wide public interest.   In considerable measure, the legal foundation for claims advanced by Mr Nicholls was contrary to an existing decision of this Court – Airways Corporation of New Zealand v Geyserland Airways Ltd.[1]

[1] Airways Corporation of New Zealand v Geyserland Airways Ltd [1996] 1 NZLR 116 (HC).

[5]      Associated  with  the  public  interest  submission  was  a  submission  that, although the plaintiff is Mr Nicholls, the claim had effectively been brought on behalf  of,  or  at  least  with  the  support  of,  the  Tauranga Airport  Users  Group. Associated with this was the submission that Mr Nicholls is a lay litigant.  Neither of these matters  justify my discretion  being exercised  against  the successful  party. What is more, if Mr Nicholls has the support of the Tauranga Airport Users Group,

and the proceeding was brought in Mr Nicholls’ name but for the benefit of all of the

members of that group, that is a reason not to depart from the normal rule that costs follow the event.

[6]      Mr Nicholls submitted, in effect, that it was in the public interest to bring this proceeding because he and the other members of the Tauranga Airport Users Group did not understand the basis in law for certain acts of the defendants.  That does not establish a matter of public interest justifying refusal of costs.

[7]      Mr Nicholls advanced a number of other arguments.  In considerable measure these are arguments advanced in support of the substantive claim.  Thos arguments which I considered it necessary to address in the substantive judgment are against Mr Nicholls.  They therefore do not provide a foundation for exercising a discretion in favour of Mr Nicholls.

[8]      Mr Nicholls also submitted that costs should not be allowed to the successful defendant because my substantive judgment did not provide answers to many of the questions posed in Mr Nicholls’ claim and in respect of which declaratory judgments were sought.  This does not provide grounds for exercising the discretion against the successful defendant.  Specific questions were not answered because my conclusion was that it was unnecessary to answer them.   Moreover, and in response to some related submissions by Mr Nicholls, applications for declaratory judgments are not in a special class in relation to questions of costs.

[9]      I am satisfied that the defendant is entitled to costs as sought.  There is an order accordingly.

[10]     It is convenient in this judgment to deal with a separate matter raised by Mr Nicholls in his application dated 26 September 2011.   This is an application for transcripts of the hearing on 18 March 2011 and of a telephone conference on 12

October 2011.  There are no transcripts of either hearing.  In any event, it would not be usual to release transcripts of hearings which have simply involved submissions

as opposed to evidence.

Woodhouse J