Nichols v Attorney-General (on behalf of the Ministry of Agiculture and Forestry now Ministry of Primary Industries)

[2014] NZHC 1793

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-000139 [2014] NZHC 1793

BETWEEN

ROY SYDNEY BRUCE NICHOLS

Appellant

AND

THE ATTORNEY-GENERAL (on behalf of the Ministry of Agriculture and Forestry

– now Ministry of Primary Industries) Respondent

Hearing:	(on the papers)
Appearances:	A D Banbrook for the Appellant K G Stephen for the Respondent
Judgment:	31 July 2014

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 31 July 2014 at 4.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

NICHOLS v THE ATTORNEY-GENERAL (on behalf of the Ministry of Agriculture and Forestry – now

Ministry of Primary Industries) [2014] NZHC 1793 [31 July 2014 ]

Introduction

[1]      I refer to my reserved decision dated 16 June 2014.   In that decision, I declined an application by Mr Nichols for leave to appeal out of time.  I held that the respondent Ministry was entitled to its costs and disbursements, and I put in place a timetable within which memoranda in that regard were to be filed.

[2]      The  respondent  filed  a  memorandum  seeking  costs  dated  26  June  2014. Nothing has been filed by or on behalf of Mr Nichols.

[3]      The respondent seeks costs on a 2B basis, uplifted to acknowledge alleged deficiencies in the way in which Mr Nichols pursued the proceeding.  An award of increased costs is sought pursuant to r 14.6(3)(b).

Analysis

[4]      The respondent succeeded in this matter.  It is entitled to an award of costs in its favour.1

[5]      I am satisfied that the proceedings are appropriately categorised on a category

2B basis.  They were of average complexity, and a normal amount of time spent in preparation and appearance was reasonable.

[6]      Costs calculated on a 2B basis total $9,652.  That calculation has been made in accordance with the following table:

Item		Band	Days	$
11	Filing joint memorandum for appeals list	B	.4	796
38	Respondent’s notice of opposition and affidavit	B	2	3,980
11	Filing memorandum seeking adjournment	B	.4	796

1      High Court Rules, r 14.2.

13	Appearance at case management conference	B	.3	597
40	Preparation of written submissions for leave application	B	1.5	2,985
42	Appearance at hearing (one counsel)	B	.25	498
Total costs				$9,652

[7]      As I have noted, the respondent seeks increased costs.

[8]      Increased costs can be awarded pursuant to r 14.6.   Increased costs can be awarded if the party opposing costs has contributed unnecessarily to the time or expense of the proceeding,  by, inter alia,  failing to comply with the rules or a direction of the court, or taking or pursuing an unnecessary step or an argument that lacks merit.  Further, an order for increased costs can be made if some other reason exists which justifies the court making an order for increased costs, and despite the principle that the determination of costs should be predictable and expeditious.

[9]      In the present case, I am satisfied that Mr Nichols contributed unnecessarily to the time or expense of the proceeding, and that his claim lacked merit.

[10]     Mr Nichols was seeking leave to appeal an arbitral award under s 162A(5) of the Biosecurity Act 1993.  That section puts in place a three-month time limit within which any application for leave to appeal has to be filed.

[11]     Mr Nichols’ notice of originating application seeking leave to appeal was filed on 24 January 2014.  This was the last day of the three-month period within which leave to appeal could be sought.   Mr Nichols’ application failed to comply with r 26.5.   No affidavit in support was filed.   Instead, counsel for the applicant filed a memorandum that made various assertions as to matters of fact, and annexed a copy of the arbitral award.

[12]     The application was required to be served on the prospective respondent either before or immediately after filing.   That  did not occur.   Counsel for the

respondent was unaware of the application for leave to appeal until 17 February

2014,  when  counsel  for  Mr Nichols  rang her regarding a mentions  hearing the following day.   When  the matter was  called  on  18  February 2014,  counsel  for Mr Nichols sought an adjournment so that he could attend to service.  Service was only affected on 18 February 2014 – some 25 days after the application was filed in court.

[13]     On 4 March 2014, Mr Nichols and the respondent filed a joint memorandum regarding timetable directions.  An order was made in those terms by the court.  The respondent complied with the timetable for filing a notice of opposition and affidavit evidence  in  support.    Mr  Nichols  failed  to  do  anything.    Nor  did  he  pay  the scheduling fee which was due on 25 March 2014, despite repeat requests from the court's case officer. The scheduling fee was not paid until 5 June 2014.

[14]     Mr Nichols’ submissions were due 10 working days prior to the hearing – namely by 28 May 2014.  They were not filed on time.  They were only filed a few days prior to the hearing, and they were not served on the respondent.

[15]     As a result, the respondent applied for an adjournment.  That application was declined, but the court did adjust the timetable.

[16]     The  hearing  was  due  to  commence  on  12  June  2014.     Mr  Nichols’

submissions only became available to the respondent shortly after noon on 10 June

2014.  They were not made available to the respondent by Mr Nichols or his counsel. Rather, the respondent obtained them from the Deputy Registrar, following a request from counsel.

[17]     When the matter was called before the court, counsel for Mr Nichols made an oral application for leave to file a late affidavit to provide evidence that the notice of application had been served on the respondent in time.  This was notwithstanding that the issue had been clearly signalled by the respondent in its notice of opposition, the affidavit filed by it in support, and in its submissions.

[18]     I took the view in my judgment that Mr Nichols’ conduct was manifestly

unsatisfactory.

[19]     It is patently obvious that Mr Nichols has failed to comply with almost every procedural step required by the Rules, or directed by the court.  Unnecessary time was expended by the court and by the respondent as a consequence.  I am satisfied that an award of increased costs is appropriate in terms of r 14.6(3)(b).

[20]     I increase the award of costs in favour of the respondent by 25 percent – giving a total award of $12,065.  That is less than the actual costs incurred by the respondent.

[21]   In addition, the respondent is entitled to its reasonable disbursements. Disbursements have not been listed by the respondent in its memorandum.   In the event of any dispute, the dispute is to be referred to the Registrar in the first instance.

[22]     I award costs against the appellant and in favour of the respondent in the sum of $12,065.  In addition, I award to the respondent its reasonable disbursements.

Wylie J