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Opai v Attorney-General

Opai v Attorney-General

Case [2019] NZHC 1915 7 August 2019

Admissibility of Evidence

Class Actions

Injunction

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-092-1026

[2019] NZHC 1915

BETWEEN
MELISSA JEAN OPAI

Plaintiff

AND

THE ATTORNEY-GENERAL OF NEW ZEALAND

Defendant

Hearing: (On the papers)

Counsel:

N Woods for Plaintiff

M F McClelland QC and A Todd for Defendant

Judgment:

7 August 2019

COSTS JUDGMENT OF BREWER J

This judgment was delivered by me on 7 August 2019 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Rice Craig (Papakura) for Plaintiff Crown Law (Wellington) for Defendant

OPAI v THE ATTORNEY-GENERAL OF NEW ZEALAND [2019] NZHC 1915 [7 August 2019]

Introduction

[1]This is a costs judgment.

[2] In my judgment dated 30 August 2018 I dismissed all five of Ms Opai’s causes of action.1 I did not consider any of the statements or documents to amount to defamation. There was no evidence of harm. All five claims were negated by the defence of qualified privilege and would have also been defeated by the defence of honest opinion had I been required to consider it. Most of the claims were time-barred.

[3] I indicated that the defendant was entitled to costs.2 Ms Opai appealed my decision. In a minute dated 23 October 2018 I reserved the question of costs pending the Court of Appeal’s decision. As of 3 May 2019, that appeal expired and was deemed abandoned. Both parties have now filed memoranda as to costs.

Costs

[4] It is not in dispute that costs will follow the event, nor that this proceeding should be categorised as 2B for costs purposes. The defendant seeks an order for increased costs of 40 per cent under r 14.6. The plaintiffs seeks a reduction in costs under r 14.7. There is a dispute over aspects of the defendant’s schedule of costs.

Submissions

[5] The parties have agreed the costs of various interlocutory applications and reviews. No costs are sought by either party in relation to those interlocutories and I will not address them.

[6] I will address the disputes over the schedule before turning to the claims for increased/reduced costs.

1 Opai v Attorney-General [2018] NZHC 2267.
2 At [134].

Quantification

[7] At item 36 of the schedule the defendant seeks 2B costs for one-and-a-half days, for matters relating to the admissibility of the plaintiff’s brief of evidence. The sum is $3,345. The work includes a detailed notice under r 9.11 challenging the admissibility of evidence, a mentions hearing before Toogood J on 17 May 2018 and a detailed reply to the plaintiff’s response filed 8 June 2018. Justice Lang issued minutes on the matter on 7, 8, 11 and 12 June 2018 and a judgment on 13 June 2018 upholding the parts of the defendant’s challenge to admissibility that had not been resolved.

[8] Counsel for the defendant submits this process took significant time and effort shortly before trial, hence the defendant seeking one-and-a-half days.

[9] The plaintiff submits the defendant’s notice of objections was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Opai v Attorney-General

Details

AGLC: Opai v Attorney-General [2019] NZHC 1915
Case: [2019] NZHC 1915
Decision Date: 7 August 2019

CaseChat Overview and Summary

The case of Opai v Attorney-General involved a defamation lawsuit filed by Melissa Jean Opai against the Attorney-General of New Zealand. Opai alleged that defamatory statements made by police officers in the course of an internal investigation harmed her reputation. The Court dismissed all five of Opai's causes of action, finding that the statements were not defamatory, there was no publication, and the claims were barred by the statute of limitations. The Court also found that the defence of qualified privilege applied to the statements. The defendant sought an order for increased costs of 40 per cent under rule 14.6 of the High Court Rules, while Opai sought a reduction in costs under rule 14.7.

The Court held that the defendant was entitled to an increase in costs of 25 per cent on scale costs for all steps in the proceeding. The Court found that Opai's claims were without merit and that her bringing the claim in the High Court was unreasonable. The Court also rejected Opai's argument that the case clarified aspects of the law of defamation in an employment context, finding that the case did not meaningfully clarify the law or serve any recognisable public interest.

The Court ordered Opai to pay the defendant $71,980.69 in costs and disbursements. The Court held that the defendant was not entitled to reimbursement for the cost of air travel and accommodation for counsel located out of Auckland, finding that the circumstances of the case did not justify instructing out-of-town counsel. The Court also rejected the plaintiff's argument that costs in respect of the objections regarding admissibility of evidence should lie where they fell, finding that the parties had mixed success and costs should be awarded on a step-by-step basis.

In summary, the Court held that Opai's defamation claims were without merit and that bringing the claim in the High Court was unreasonable. The Court awarded the defendant an increase in costs of 25 per cent on scale costs for all steps in the proceeding, and rejected the plaintiff's argument for a reduction in costs. The Court also held that the defendant was not entitled to reimbursement for the cost of air travel and accommodation for counsel located out of Auckland.

Orders