Opai v Culpan - [2017] NZHC 307

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-092-1026 [2017] NZHC 307

BETWEEN
MELISSA JEAN OPAI

Plaintiff

AND

LAURIE CULPAN First Defendant

ATTORNEY-GENERAL (sued on behalf of the COMMISSIONER OF POLICE) Second Defendant

Hearing: On the papers

Appearances:

N W Woods for the Plaintiff
H B Rennie QC for the First Defendant
A F Todd for the Second Defendant

Judgment:

2 March 2017

JUDGMENT No.4 OF ASSOCIATE JUDGE R M BELL COSTS

This judgment was delivered by me on 2 March 2017 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………………………………….
Registrar/Deputy Registrar

Solicitors:
Rice Craig (N W Woods), Papakura, for Plaintiff
Thomas Dewar Sziranyi Letts (D G Dewar), Wellington, for First Defendant
Crown Law Office (A F Todd), Wellington, for Second Defendant
New Zealand Police (N S Ridder), Wellington, for Second Defendant

Counsel:
Hugh B Rennie QC, Wellington, for First Defendant
Matthew F McClelland QC, Wellington, for Second Defendant

OPAI v CULPAN (No.4) [2017] NZHC 307 [2 March 2017]

[1] On 13 December 2016 I issued three interlocutory judgments in this proceeding.1 This decision is on costs on the first two. The third decision was on a media access application. The media applicant is not a party to this proceeding and there is no basis for making orders against an unsuccessful media applicant.

The applications to review

[2] Ms Opai and the Attorney-General have applied to review my first judgment. Notwithstanding the review, costs should be decided now. Any errors in this costs decision may be corrected at the same time as the review of my first judgment. There will be efficiencies in not deferring costs until after any decisions on the review applications. That is also consistent with r 14.8 under which costs on opposed interlocutory applications are to be fixed when the application is decided, unless there are special reasons. As I shall explain later, there are special reasons for not deciding costs on judgment (No. 2), but that does not prevent the principle applying generally.

Impact of Senior Courts Act 2016

[3] The Senior Courts Act 2016, which has a new régime for challenging

associate judges’ decisions on interlocutory applications, came into force on 1 March

2017.2 That will not prevent the current applications for review being determined, nor this decision on costs. Under s 27 of the Senior Courts Act, the only way to challenge a decision of an associate judge is to appeal to the Court of Appeal. Section 56(3) provides that a decision on an interlocutory application requires leave. Those provisions apply only to proceedings started after 1 March 2017. Under the transitional provisions in Schedule 5 of the Senior Courts Act, the current régime of review under Part 2 subpart 1 of the former High Court Rules continues to apply.
Clause 11 of Schedule 5 says:

1 Opai v Culpan [2016] NZHC 3004; Opai v Culpan (No 2) [2016] NZHC 3005; Opai v Culpan
(No 3) [2016] NZHC 3006.
2 Senior Courts Act 2016,…

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 Culpan

Details

AGLC: Opai v Culpan [2017] NZHC 307
Case: [2017] NZHC 307
Decision Date: 2 March 2017

CaseChat Overview and Summary

In the case of Opai v Culpan, the High Court was tasked with deciding the costs incurred during the interlocutory proceedings of the case. The primary parties involved were Melissa Jean Opai, the plaintiff, and Laurie Culpan, the first defendant, with the Attorney-General, sued on behalf of the Commissioner of Police, acting as the second defendant. The court's primary concern was whether it should allow more than one set of costs to be claimed when the defendants had common or overlapping interests, in accordance with rule 14.15 of the High Court Rules.

The legal issues at hand centered on the application of rule 14.15, which dictates that the court must not allow more than one set of costs if several defendants defended a proceeding separately and it appeared that all or some of them could have joined in their defence. The court needed to determine whether Mr. Culpan and the Attorney-General had common or overlapping interests and whether they could have reasonably joined in their defence.

The court reasoned that Mr. Culpan and the Attorney-General had common interests as they both opposed Ms. Opai's defamation claim. The Crown’s vicarious liability was not disputed, and it stood or fell with Mr. Culpan. The court found that there was no conflict of interest that required separate representation and that it was common practice in media defamation cases for a journalist and the broadcaster/publisher to have common representation. Consequently, the court decided that rule 14.15 applied, and costs would be assessed as though Mr. Culpan and the Attorney-General had common representation.

In deciding the costs, the court found that the defendants were generally successful, with Mr. Culpan being removed from the proceeding and some of the statements in issue being struck out. However, they were not completely successful as the Crown could not be removed from the proceeding, and certain attacks on the pleadings and meanings were unsuccessful. Despite this, the court deemed that the defendants were entitled to costs for their overall success. The court also noted that Ms. Opai’s conduct in unnecessarily joining Mr. Culpan as a defendant and her failure to withdraw the claim against him when offered the chance added to the costs. These factors were set off against the defendants’ partial success.

Ultimately, the court awarded the defendants costs of $25,199.00 and disbursements of $940.00, totaling $26,139.00, to be shared equally between Mr. Culpan and the Attorney-General. The decision on costs for Ms. Opai’s discovery application against the Crown was deferred pending further clarification after a final judgment.

Orders