Page v Page and Clarke - [2008] NZCA 80

IN THE COURT OF APPEAL OF NEW ZEALAND
CA141/07
[2008] NZCA 80
BETWEENJEFFREY GRAEME PAGE

Appellant

ANDROBYN JILLIAN PAGE AND MURRAY CLARKE

Respondents

Hearing:14 February 2008

Court:Ellen France, Williams and Heath JJ
Counsel:C S Henry for Appellant

D A T Hollings QC and S L Robertson for Respondents

Judgment:10 April 2008 at 2.30 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted.
B The appeal against liability is dismissed.
CThe appeal is allowed in respect of quantum by reducing the amount payable by the appellant to the respondents to the sum agreed by counsel or as fixed by further order of the Court with leave being reserved to the parties to apply further on that topic.

REASONS FOR JUDGMENT
(Given by Williams J)
Introduction
[1]         The appellant and first respondent, Mr and Ms Page, have been embroiled in lengthy and bitter matrimonial litigation. One aspect of it resulted in Mr Page bringing private prosecutions alleging perjury against Ms Page, her sister and her brother-in-law, Mr Clarke, the second respondent. They were committed for trial in the District Court on some charges. Ultimately, all three were wholly discharged under s 347 of the Crimes Act 1961, but not at the same time.
[2] On dismissal of some charges, the three accused sought indemnity costs under the Costs in Criminal Cases Act 1967 (“the Act”). Costs were awarded to all three by Judge Hubble, but not on an indemnity basis: DC AK CRI 2003‑004‑031868 11 April 2006. Subsequently, after the remaining charges against Ms Page and Mr Clarke were dismissed at trial, further costs were sought by them and awarded on an indemnity basis by the trial Judge, Judge Sharp, in a judgment given on 2 October 2006. The award totalled $52,139.42. There was a separate award in respect of the costs of the defended costs hearing.
[3]       Mr Page appealed to this Court against both aspects of Judge Sharp’s order on the principal grounds, first, that the circumstances did not justify awarding costs greater than the outdated scale still in the Costs in Criminal Cases Regulations 1987 and, secondly, that there were arithmetical errors in the Judge’s calculation of the amount to be paid, particularly that payments made by Mr Page were not taken into account.
[4]       Mr Page was also obliged to seek leave to appeal as his appeal was originally lodged in the wrong Court. Ms Hollings QC, senior counsel for the respondents, opposed leave but, the delay being satisfactorily explained, leave is granted.
The facts
[5]       There has been a raft of litigation between Mr and Mrs Page and others since the Pages separated in late 2001. This appeal is the latest episode in that litigation.
[6]       Though, perhaps, risking over-simplifying that litigation, it is helpful background to recount the history of the matters as summarised by Judge Sharp in her decision:
[8]       In October 2001 Mr and Mrs Page separated. Their separation was, and remains, acrimonious. A temporary protection order was granted by the Auckland…

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.

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Details

Case: [2008] NZCA 80
Decision Date: 10 April 2008

CaseChat Overview and Summary

Jeffrey Graeme Page (the appellant) sought leave to appeal against a decision of the High Court at Auckland (Judge Sharp) awarding indemnity costs to Robyn Jillian Page and Murray Clarke (the respondents). The appeal was allowed in part. The appeal against liability was dismissed but the appeal as to quantum was allowed. The Court reduced the amount payable by the appellant to the respondents.

The appellant and the first respondent had been embroiled in lengthy and bitter matrimonial litigation. One aspect of it resulted in the appellant bringing private prosecutions alleging perjury against the first respondent, her sister and her brother-in-law, the second respondent. They were committed for trial in the District Court on some charges. Ultimately, all three were wholly discharged under s 347 of the Crimes Act 1961, but not at the same time. The three accused sought indemnity costs under the Costs in Criminal Cases Act 1967 (“the Act”). Costs were awarded to all three by Judge Sharp. The appellant appealed against both aspects of Judge Sharp’s order on the principal grounds that the circumstances did not justify awarding costs greater than the outdated scale still in the Costs in Criminal Cases Regulations 1987 and that there were arithmetical errors in the Judge’s calculation of the amount to be paid, particularly that payments made by the appellant were not taken into account.

The Court found that the Judge was correct to note that, if minded to award more than scale costs, she had to be satisfied that such was desirable having regard to the “special difficulty, complexity or importance of the case”, and was limited by s 5(1) to awarding only a “just and reasonable” sum towards the respondents’ defence. There was ample justification for her to reach her views on the individual factors set out in s 5(2) and the matters discussed by the Judge, when coupled with the evidence, disclosed no error of principle in her decision that the award should be of indemnity costs and such was “just and reasonable” in the circumstances of this litigation.

However, the appeal must be allowed as to quantum. The respondents’ application to Judge Sharp for full recovery by way of an indemnity for all the costs paid by them throughout the prosecution was an attempt at double recovery in that they had sought 75 per cent of the relevant proportion of those costs from Judge Hubble but had been held not to be entitled to recovery of the greater part. Having been awarded only scale costs on that part of their application, it was not open to them to seek to revisit that determination and seek full indemnity costs at a later date for that part of the fees they had paid. The Court directed the parties to confer and endeavour to agree on the figure to which Judge Sharp’s judgment should be reduced. If counsel were unable to agree by way of consent memorandum as to the correct amount of the judgment, leave was reserved for the parties to apply further.

Orders