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Sharp’s order on the principal grounds, first, that the circumstances did not justify awarding costs greater than the outdated scale still in the Costs in Criminal Cases Regulations 1987 and, secondly, that there were arithmetical errors in the Judge’s calculation of the amount to be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 Family Court on 19 June 2002. Applications were lodged for relationship property and parenting orders of the three children. A Final Protection Order was made by Her Honour Judge Jan Doogue on 29 August 2002.

[9]       Mr and Mrs Page’s relationship was not improved by the existence of this order, of which Mrs Page has alleged breaches from time-to-time. In fact, as I understand it from Mr Page, he is the subject of another prosecution for breach of protection order at the moment.

[10]     In 2002 after the Final Protection Order hearing Mr Page swore and filed a raft of criminal informations against Mrs Page, Mr Clarke and his wife, Mrs Clarke (who is Mrs Page’s sister). These informations alleged perjury. Apparently Mr Page made attempts to interest the police in bringing the prosecutions for perjury but they declined to do so. The four informations which ultimately led to the trial that began on Monday 28 August, are the only four to have survived a rigorous and extensive series of challenges by Ms Hollings as counsel for three defendants (now two) from the inception of the prosecution in 2002. They were laid March and April 2003 at a time when Mr Page was seemingly self-represented, although I am reminded that he has had a plethora of legal advisors over the last six years in both the Criminal and the Family Court jurisdiction.

[11]     After considerable acrimony between Mr and Mrs Page, by consent order Judge Jan Doogue appointed Mr Tony Lendrum as counsel to assist the Court to convene a private mediation between Mr and Mrs Page. That mediation was held on 9 and 11 March 2004. Mr and Mrs Page were not the only participants: present were their respective lawyers, as well as Mr Page’s mother and step-father along with their lawyer. Counsel for the children attended. There were issues between Mr Page’s mother and himself, as well as issues in respect of the children, relationship property, the Protection Order and the private prosecutions for perjury. A comprehensive agreement was reached. In particular it should be noted that Mr Page agreed to withdraw the private prosecution whilst Mrs Page agreed to apply to the Family Court to discharge the Final Protection Order.

[12]     Soon after entering into the settlement agreement Mr Page attacked the integrity and credibility of the mediator and indicated that he would be resiling from his agreement to withdraw the private prosecution. However, all other aspects of the agreement (except Mrs Page’s agreement to seek a discharge of the protection order) were performed by the parties.

[13]     From time-to-time for various reasons, criminal informations were struck out as the various and many judgments of this Court reveal. From time-to-time new and further informations were laid. Of all those which went to a Depositions hearing on 24 and 25 February, 3 March, 31 May, 1 June, 21 June 2005 (like the trial and hearing of this application, tortuous), the accused were only committed for trial on four charges by reserved judgment of His Honour Judge Jeremy Doogue on 28 June 2005.  The Depositions hearings too were preceded and interrupted by various challenges on which rulings were made.

[14]     Post committal, an application to stay on the grounds of abuse of process was dismissed by His Honour Judge Field. Two awards of costs have been made against the Informant (and paid). There is a yet outstanding decision in respect to another application for costs by the applicants in respect to a successful pre-trial application heard by His Honour Judge Holderness.

[15]     It could not, therefore, be said that the progress of this prosecution to this point has been straightforward or without its complexities. In saying that, I acknowledge that all pre-trial applications were made by the applicants. 

[7]       The printed Case on appeal before us included 11 decisions by District Court Judges delivered between 24 February 2004 and 28 June 2005, dealing with applications to strike out or stay various iterations of the informations issued by Mr Page on the grounds of abuse of process, disputed disclosure, evidential objections, rulings made during depositions hearings plus an application brought under s 347 of the Crimes Act which finally resulted in only the four informations mentioned by Judge Sharp being permitted to go to trial.  The Case also included a successful application by the then defendants under s 345(5) of the Crimes Act.

[8]       The Case also includes the costs decision delivered by Judge Hubble on 11 April 2006 in relation to the dismissed informations.  We return to that.

[9]       The informations which Judge Sharp and a jury were to try from 28 August 2006 contained three counts of perjury against Mrs Page for statements made in affidavits sworn between June and September 2002, and two against Mr Clarke for statements made by him in an affidavit sworn on 26 August 2002.

[10]     It is pertinent to note the course taken during the trial as described by Judge Sharp:

[1]       Monday 28 August [2006] was the beginning of a five day period allocated for the trial of a private perjury prosecution of Mrs Page and Mr Clarke where the Informant is the ex-husband of Mrs Robyn Jillian Page and the brother-in-law of Mr Clarke.

[2]       The amended indictment presented to the Court alleged four counts of perjury all relating to either affidavits sworn and filed in the Auckland Family Court in support of Mrs Page’s application for a Final Protection Order or evidence given orally in that cause.

[3]       Early in the trial, counsel for the accused indicated a challenge to the admissibility of pivotal evidence which counsel for the Informant wished to introduce through the Informant.  That evidence consisted of audiotapes and a transcript of the hearing of a Final Protection Order application in the Auckland Family Court.

[4]       The challenge made by Ms Hollings was two fold:

i)That the leave of the Family Court had not been sought pursuant to s 125(1) Domestic Violence Act 1995;  and

ii)That the evidence was hearsay and, in one instance, double hearsay.

[5]       I excused the jury to hear argument.  A voir dire was held.  By the evening of the second day I had ruled inadmissible this evidence (trial ruling number 1), refused an adjournment application by the Informant (trial ruling number 2), declined to exercise jurisdiction (if I possessed it) to hear an application for leave under s 125(1) Domestic Violence Act (trial ruling number 3), refused both an application to discharge the whole jury under s 374 Crimes Act and an adjournment (trial ruling number 4), and discharged the two accused under s 347 Crimes Act.

[6] Counsel for the two accused (now applicants) immediately indicated that she wished to lodge an application for costs under the Costs in Criminal Cases Act. The trial had been allocated five days. I indicated that I would hear such an application the next day (Wednesday). The hearing of that heavily contested application, lasted two and a half days. Evidence was called. Applications for adjournments were made and refused. I made three rulings.

Judgment under appeal

[11] Following the two passages cited from Judge Sharp’s decision, she noted that s 5(1) of the Act empowers the Court to order “such sum as it thinks just and reasonable towards the costs” of the defence of an acquitted person. Subsection (2) sets out criteria to be considered in exercising that discretion: whether the prosecution is brought and continued in good faith; whether it commenced with the prosecution having sufficient evidence to support conviction; whether the prosecution took proper steps to investigate and the investigation was conducted in a reasonable and proper manner; whether the information was dismissed on a technical point or by the defendant establishing his or her innocence; and whether the defendant’s behaviour was such that defence costs should be paid. Section 2 defines “costs” as being “any expenses properly incurred” by a successful defendant or appellant.

[12]     Then, after criticising the costs scale in the Regulations as “abysmally low” (at [22]), the Judge carefully analysed each of the s 5(2) criteria.  After that detailed review, she held:

(a)That Mr Page brought and continued his perjury prosecutions because of malice, spite, revenge and obsession: at [34]; and

(b)That Mr Page’s investigation was “utterly subjective”, “hopeless” and “unprofessional” (at [36]) and that, though the informations had been dismissed on what the Judge regarded as technical points, the disputed evidence would have been ruled inadmissible in any event and “both points were so fundamental to the progression of the trial that I do not consider that that weakens this application”: at [39].

[13] The Judge then turned to factors she regarded as relevant to the exercise of her discretion in favour of the present respondents. She took the view Mr Page brought the prosecution as a “personal vendetta and in order to continue a pattern of harassment against Mrs Page”, the trial was conducted poorly and Mr Page did not act with the “objectivity and expected rationality of a prosecutorial body”: at [42].

[14]     To satisfy the Court that payment of costs in excess of scale was appropriate, s 13(3) required the present respondents to demonstrate that an order to that effect was desirable “having regard to the special difficulty, complexity, or importance of the case”.  After noting that, the Judge considered appropriate authority on the topic before reaching her conclusion that, because of the special importance for Ms Page and Mr Clarke of the prosecution, Mr Page’s bad faith and the obsessive manner in which he laid and pursued the informations and prepared for trial made an order for the payment of greater than scale costs appropriate:  at [49] relying on Francis v McDonald CA101/01 29 August 2001.

[15] The Judge then turned to the authorities and facts to be considered in her discretionary decision under s 5(1) as to the amount Ms Page and Mr Clarke should be awarded for the “just and reasonable” costs of their defence.

[16]     She appropriately referred to a number of High Court decisions, making the point that a “just and reasonable” award did not automatically equate with an award of indemnity costs:  T v Collector of Customs HC CHCH AP 167/94 23 February 1995 at 3 – 4.

[17]     The critical section of the judgment on the appellant’s liability for costs – and the paragraph most scrutinised by Mr Colin Henry, counsel for the appellant – read:

[58]     I consider that this is one of those rarest of cases where it is just and reasonable that full indemnity costs be awarded to the defendants. The only deterrent to the Respondent continuing to litigate against Mrs Page may be an award of costs which recognises the gravity of the Informant’s conduct. I am satisfied (although this is not necessarily relevant) that he has the financial means to meet them, that he was warned of the possibility of this outcome, that he has nevertheless chosen to relentlessly pursue Mrs Page and her brother-in-law. This is a case where I consider that the prosecution should never have been brought, let alone continued, once the Informant reached an agreement with Mrs Page at mediation. I make a full indemnity award of costs against Mr Page in order to condemn the Informant’s conduct in bringing and continuing the prosecution (after settling all disputes with Mrs Page at mediation) and to remind him (as a private Informant) that he has obligations of fairness and objectivity which, if disrespected, in the event of an unsuccessful prosecution, brought through mala fides will be marked by an award of costs. I note that whilst I am prepared to grant full indemnity costs to Mrs Page and to Mr Clarke, the actual costs could have been a great deal higher for the work that was entailed by this prosecution and this application. Furthermore, the obvious emotional anguish which has been wrought upon them is a matter which is unable to be recompensed. Counsel for the applicants should file a further memorandum of costs in respect to the attendances of 1 September and provided reasonable, these, as well as the total fees of $52,139.42 (including the costs relating to the strike out of the original indictment) will be ordered as costs under the Costs In Criminal Cases Act against Mr Page.

Submissions

[18]     Mr Henry – who had not acted for Mr Page prior to this appeal – advanced two principal propositions on Mr Page’s behalf:  that the Judge erred both in the exercise of her discretion in deciding to award indemnity costs and in the quantum of the award.

[19]     In relation to the former, Mr Henry submitted the Judge took account of irrelevant factors and was wrong to regard the contents of the mediated settlement as relevant to her decision.

[20] He emphasised the statutory requirement that awards of costs be both “just and reasonable” and be costs of the defence. Mr Henry submitted it was irrelevant for the Judge to make her observations about deterrence. Deterrence is not a relevant factor for the award of costs under the Act. Such costs are limited to costs already incurred in defence and are not to deter parties from future litigation. Courts have ample means to deal with such litigation.

[21]     Mr Henry submitted it was contrary to public policy for the Judge to rely on the mediated settlement agreement and Mr Page’s failure to comply with that agreement as a factor influencing the costs decision.

[22]     Ms Hollings submitted the Judge, having reviewed the whole of the file and having heard extensive evidence on the costs application, was fully entitled to reach the conclusions she did, particularly when this Court has recently observed that the discretion under s 5 is very broad:  Solicitor-General v Moore [2000] 1 NZLR 533 at [30] – [33] and R v Donovan [2007] NZCA 46 at [22]. She also drew attention to the views recently expressed by the Supreme Court that the weighting given by a first instance Judge to the criteria in s 5(2) is for the Judge and does not, as a matter of principle, affect the exercise of the statutory discretion. Any challenge to the exercise of discretion must demonstrate an error of principle: Reid v R  [2007] NZSC 90 at [21] and [23]. Ms Hollings submitted the Judge’s reference to the mediated settlement was appropriate in that she was entitled to note Mr Page’s agreement to withdraw the informations and his later resilement from that agreement. It was evident from the file the informations had not been withdrawn. Even agreements contrary to public policy remain subject to Courts’ supervisory jurisdiction: Polymer Developments Group Ltd v Tilialo [2002] 3 NZLR 258 at [86] (HC).

[23]     Ms Hollings submitted that when paragraph [58] of the judgment was properly analysed, it was plain deterrence was not a reason which led the Judge to award indemnity costs.

Discussion and decision on liability

[24] In our view, 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.

[25]     As has been remarked on a number of occasions over the years, the scale of costs appearing in the Regulations has long since been well overtaken by inflation and other factors and requires to be substantially increased – perhaps to something approximating Crown Solicitors’ rates – before it could represent what is “just and reasonable” in the circumstances of most cases.  That particularly applies to this protracted and, as the Judge put it, “tortuous”, litigation.  The Judge was accordingly right to conclude that this was a case of special difficulty, complexity and importance to all parties and an award above scale was appropriate.

[26]     Having regard to the history of the case and the extent of the evidence before Judge Sharp on the costs application, there was ample justification for her to reach her views on the individual factors set out in s 5(2).  Indeed, we did not understand Mr Henry to challenge either the Judge’s entitlement or her conclusions in those sections of the judgment.

[27]     Similarly, having decided to make an award in excess of scale, the matters discussed by the Judge, when coupled with the evidence, disclose 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.

[28]     Even assuming, without deciding, that deterrence may be irrelevant as to costs decisions, we agree with Ms Hollings’ submission that careful analysis of paragraph [58] shows deterrence was not a reason for the Judge’s decision to award indemnity costs.

[29]     As Ms Hollings submitted, paragraph [58] falls into two sections.  Indeed, it could easily have been divided into two paragraphs. It is only in the second half of the paragraph that the Judge expresses the reasons for her conclusion.  They were to condemn Mr Page’s conduct in bringing and continuing the prosecution in the circumstances – circumstances which she regarded as exhibiting bad faith – and to remind him of his obligations as an informant, obligations she had already held him to have breached.  Deterrence was not listed as a reason.  No error of principle is demonstrated in that approach.

[30]     We also take the view there was nothing untoward in the Judge referring to the mediated settlement agreement.  It had been put in evidence before her.  Mr Page’s resilement from the agreement was evident from the informations.  In any event, such agreements, as Talialo confirms, even if contrary to public policy, remain subject to Courts’ supervision.  There is accordingly no error of principle demonstrated in the Judge’s approach on this aspect as well.

[31]     For all those reasons, no ground has been made out for this Court to intervene in Judge Sharp’s decision on liability and the appeal in that regard is accordingly dismissed.

Quantum

[32]     Notwithstanding our findings as to the correctness of the Judge’s decision as to liability, aspects of the quantum section of the award are not as clear-cut.

Judgments

[33]     Relevantly, the Judge held:

[53]     This judgment deals with defence costs incurred after Judge Field’s decision refusing to award a stay. All attendances in respect of matters prior to this time (except one) have already been the subject of previous and successive cost applications.

Successful Applicants’ Actual Costs

[54]     Up until 1 September 2006 defence fees are $52,139.42. These include attendances relating to a successful strike out application of the first count of the original indictment. A costs application was lodged with the Court but has not yet been dealt with; it is suggested by counsel for the defendants that that application should be encompassed within this judgment. I agree. With the history of this matter, it would be unfortunate not to now deliver some finality. The successful application before His Honour Judge Holderness was brought as a result of the Informant’s inclusion within the indictment of a charge which was clearly designed to circumvent the refusal of Judge Jeremy Doogue to commit the accused to trial on a charge relating to the same facts. Judge Holderness struck that count out of the indictment on the grounds that it was clearly an abuse of process designed to circumvent the Court’s decision.

[55]     The memorandum from Mrs Hollings does not allow for attendances at Court on 1 September 2006. There will need to be a further memorandum which addresses these. It should be noted that the hearing of the application for costs took the better part of two and a half days and was, I consider, wrongfully extenuated and prolonged by the manner in which the Informant’s counsel conducted his opposition. There should be an allowance for costs in respect of this successful application therefore.

…

[58]     … Counsel for the applicants should file a further memorandum of costs in respect to the attendances of 1 September and provided reasonable, these, as well as the total fees of $52,139.42 (including the costs relating to the strike out of the original indictment) will be ordered under the Costs in Criminal Cases Accountant against Mr Page.

[34]     Also relevant in this context is the costs judgment of Judge Hubble delivered some four months before the present respondents’ trial.  It dealt with a costs application by the then three defendants.  It followed orders discharging Ms Clarke on the three informations she had faced and Mr Page withdrawing five informations. It was brought after Judge Jeremy Doogue dismissed three informations against the present respondents but permitted five to proceed to trial.  It also followed Judge Holderness striking out one of those five counts under s 345(5) of the Crimes Act in February 2006 as that count was not founded on deposition evidence and amounted to collateral attack on the dismissal of one information.

[35] The application sought costs on an indemnity basis for all three then defendants other than the costs of the present respondents’ defence for the informations then proceeding to trial. In that regard, it is pertinent, first, to note that the Judge said he was dealing with an application by Ms Hollings for costs “in respect of those informations which were struck out or discontinued as a result of the decision of Judge Doogue on 28 June 2005”: at [13].

[36]     It is also pertinent to note that the decision was based on a memorandum from Ms Hollings which attached all the accounts she had rendered to the then defendants.  Each was in relation to her acting (at a heavily discounted rate) for all three.  The memorandum said the accounts totalled $32,054.06, including GST and disbursements and the parties had agreed that Ms Page pay 50 per cent of the costs and Mr and Mrs Clarke 25 per cent each.  The memorandum continued:

26. (c)In regard to all remaining costs the defendant, Ms Clarke, no longer faces any charges before the Court.  Her share of the costs, being ¼  of the total costs, is $8,013.51.  An order is sought in regard to her costs for full indemnity.  In regard to Mrs Page and Mr Clarke, again their share is ½ and ¼ each of the total costs respectively, being $16,027.04 and $8,013.51 each.  In regard to their costs, costs are sought of 75% of those costs in view of the fact that they remain before the Court in regard to other charges.

[37]     After citing s 5 and appropriate authority and noting the scale in the Regulations, Judge Hubble concluded:

[22]      … The prosecution of Anne Clarke was a needless and unfounded pursuit and, in my judgment, warrants an award of costs.  I cannot, however, find that the particular charges brought against her involved any special difficulty, complexity or importance in terms of s 13(3) and, accordingly, costs must be fixed according to the scale despite the inadequacy of that scale.  She is entitled to costs for six days hearing and three full day’s preparation being nine days or $4,068 on scale.

…

[24]     All three defendants are entitled to costs up to that point in time, namely, filing of the application to strike out. … The award made in favour of Anne Clarke is intended to include these costs so that Murray and Robyn Clarke [sic: Page?] alone are entitled to an award which I fix at three full days each or a total of $2,712 between them.

[38] He awarded Ms Page one day’s scale costs totalling $904 on the dismissal of each information against her. He awarded Mr Clarke scale costs of $452 on the dismissal of one information, but noted that, if the remaining applications against Mr Clarke failed “it is possible that a further application for costs could be made after trial”: at [27]. Since only successful defendants are entitled to costs under the Act, that remark must be seen as directed at the informations then continuing.

[39]     The Judge expressed his costs orders as follows (at [30]):

To Anne Clarke:  $4068 + disbursements

To Murray Clarke:                 $1808

To Robyn Clarke: [sic]           $2260

[40]     A complexity on the appeal is that it is accepted that, between the decisions of Judges Hubble and Sharp, Mr Page paid the present respondents $8,735.60.  The parties agree that Judge Sharp, despite earlier noting the payment, erred in not deducting it from her award.

[41]     As invited, on 17 November 2006 Ms Hollings filed a further memorandum showing her costs of the 1 September 2006 hearing at $1,012.50, including GST.  Mr Henry was initially critical of the inclusion of that sum in the sealed order without, as he understood it, the Judge considering whether that account was “just and reasonable”.  However, at the hearing, Ms Hollings directed attention to a minute from Judge Sharp dated 23 November 2006 – a minute of which Mr Henry was unaware – holding that Ms Hollings’ account of 17 November 2006 was in order and directing Mr Page to pay the present respondents the “further sum of $11,12.50”, an obvious error for $1,012.50.

[42]     Further on the computational aspects of the appeal, as invited so to do after the hearing before Judge Sharp, Ms Hollings filed a memorandum attaching all her accounts to 31 August 2006 said to total $52,139.42, including the striking-out application determined by Judge Holderness and noting Mr Page’s payment of $8735.60.

Submissions

[43]     Though not phrased in this way in the notice of appeal, Mr Henry’s principal submission on the quantum aspect of this matter was that Judge Hubble’s orders were a final determination on the application by Ms Page and Mr Clarke for indemnity costs of $26,050.30[1] calculated in accordance with the passage cited from Ms Hollings’ memorandum, and accordingly no later orders could be made for costs incurred during the period Judge Hubble was considering.  Judge Sharp therefore erred in granting the present respondents indemnity costs for the same period. That aspect of the matter was res judicata.  He supported that submission by pointing to the fact that Judge Hubble’s award to Ms Clark had to be a final determination of her application for indemnity costs as, by then, she was no longer involved in the prosecution.  He made the further point that the accounts attached to Ms Hollings’ memorandum of 1 September 2006 included the 13 totalling $32,054.46 formerly submitted to Judge Hubble.  Because no party sought review or appeal of Judge Hubble’s orders, Mr Henry contended that supported his submission that aspect of the litigation was res judicata: Lai v Chamberlains [2007] 2 NZLR 7 at [58] (SC) per Elias CJ. He also submitted Mr Page’s payment of $8,735.60 fully satisfied the two orders for costs then made against him, including Judge Hubble’s award to the present respondents.

[1]  More correctly, it seems, $26,043.92;  $32,054.06 ‑ $8,013.51 = $24,040.55.  75 per cent of $24,040.55 = $18,030.41 + $8,013.51 = $26,043.92.

[44]     Ms Hollings accepted that the application before Judge Hubble by the present respondents was for indemnity costs of $26,050.30 against which the Judge awarded only $8,136 plus disbursements, but relied on the Judge’s observation that, in the event the prosecution was unsuccessful, a “further application for costs could be made”.  She submitted the orders made in favour of the present respondents were therefore no more than interim or interlocutory awards which envisaged the possibility of the then application being revisited at the conclusion of the litigation.

[45]     She relied on Judge Sharp’s conclusions that Mr Page’s bringing and continuing the prosecution was thoroughly inadequate, in bad faith, and in breach of his duties as prosecutor, pointing to the fact that those findings could not have been made by Judge Hubble at the stage of the litigation at which he dealt with it.

[46]     She submitted that approach was supported by the decisions in Kolmar Investments Ltd v R Hannah & Co Ltd HC AK CIV-2002-404-1861 24 November 2004 and ZB v Attorney-General HC WN CIV-1993-485-002 21 December 2004.  In the former, after the Judge concluded his substantive judgment by saying the successful party was entitled to category 2B costs, that party sought an increased award.  The application was resisted on res judicata grounds.  The Judge rejected the opposition on the basis his earlier statement amounted to no more than an expression of entitlement and was made without hearing counsel on the issue.  In the latter, a judgment fixed costs and disbursements but noted there was to be no order as to costs in relation to a costs application.  That notwithstanding, counsel sought costs on that application, there having been a Calderbank offer.  The application was again opposed on res judicata grounds.  Indemnity costs were ordered as the Associate Judge had not previously been advised of the Calderbank offer, that position being sanctioned under the “slip” rule, r 12 of the High Court Rules.

Discussion and decision on quantum

[47]     The major question on this part of the appeal is whether Judge Hubble’s decision on the present respondents’ application for indemnity costs was a final decision on that proportion of the costs then sought by them but allowed only at scale rates.  The consequential question is whether, given there was no appeal from Judge Hubble’s decision, the present respondents were debarred from again seeking indemnity costs, on the usual principles of finality of litigation or, alternatively, were seeking double recovery.

[48]     Other than possibly arising out of Judge Hubble’s cited observations at [27] of his judgment, there can be no doubt the decision was a final one adjudicating on the amount claimed in the then defendants’ costs application.  The present respondents were seeking indemnity costs at that stage for 75 per cent of the amount paid by them, the other 25 per cent not then being claimed since it was assessed as costs incurred on the informations still going to trial.

[49]     The question therefore is whether, when Judge Hubble said that if the remaining informations failed at trial “it is possible that a further application for costs could be made”, he was indicating his judgment was not final.  (The observation was expressly made only in relation to Mr Clarke but we accept Ms Hollings’ submission that it was plainly intended to apply to both present respondents, particularly as Mr Henry did not contest that issue.)

[50]     We take the view that the present 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.  It would be wrong to permit them again to claim that part of the fees paid by them when their application for recovery of that sum had been judicially considered and finally determined against them by Judge Hubble (other than in the scale costs awarded).  Put bluntly, they sought $26,050.30 (or $26,043.92) from Judge Hubble. In that claim he made a final award of $4,068.  It was not open to them to again seek the disallowed difference from Judge Sharp.

[51]     It was, however, open to the present respondents to seek and obtain an order that Mr Page pay them indemnity costs for the whole of the fees paid by them on the balance of Ms Hollings’ accounts, namely the 25 per cent specifically excepted from the claim before Judge Hubble and, of course, the fees subsequently incurred.

[52]     In light of all of that, the appeal must be allowed as to quantum.  The only sum for which the appellant is liable to the respondents pursuant to Judge Sharp’s order that he pay them indemnity costs is the difference between the amount sought by the respondents from Judge Hubble and the total fees charged to them as recorded by Judge Sharp (including the costs concerning the 1 September 2006 appearance.)   Subject to our later observations, the correct amount payable by the appellant to the respondents may be:

Total fees charged to present respondents
as per para [58] of Judge Sharp’s judgment:         $52,139.42

Plus costs of appearance on 1 September 2006

as later ordered (corrected):  $  1,012.50   $53,151.92

Less amount claimed before Judge Hubble

(ie $8,013.51 for Mrs Clarke
          plus 75% of  $24,040.55 for Mr Clarke
          and Ms Page)  $26,043.92  

Amount payable  $27,108.00

[53]     The parties are directed to confer and endeavour to agree on the figure to which Judge Sharp’s judgment should be reduced.  In so doing they should also have having regard to the following observations:

(a)Whether the parties agree that the amount in issue before Judge Hubble was $26,043.92, not $26,050.30, as calculated in [44] of this judgment;

(b)We note that although the first 13 invoices charged to all three then defendants attached to her memorandum of 10 August 2005 and as listed in Ms Hollings’ memorandum of 1 September 2006 correctly total $32,054.06, the seven additional invoices listed in her memorandum of 1 September 2006 and the copies attached to that memorandum do not appear to tally with the total of $52,139.42 said in the memorandum to have been the total charged to the present respondents;

(c)As to a $500 payment made by Mr Page on 21 May 2004, there appears to be inconsistent treatment between the two copies of the invoice of that date appearing in the Case and the total of those invoices listed in Ms Hollings’ memorandum of 1 September 2006; and

(d)Given the listing of the heads of costs payable under reg 3 and the Schedule to the Regulations, there may be doubt as to whether some of the disbursements charged by Ms Hollings are claimable under the Act.

[54]     If counsel are unable to agree by way of consent memorandum as to the correct amount of the judgment, leave is reserved for the parties to apply further.

[55]     We conclude with the observations that, though the amount payable by him remains reasonably significant, Mr Page may count himself fortunate at the outcome of this appeal for the reasons, first, that he has succeeded in reducing the amount payable by him on a ground not advanced before Judge Sharp and, secondly, that throughout this matter Ms Hollings has charged her clients at a very concessional rate.  Thus the award of indemnity costs against him could have been significantly larger.

Result

[56]     In the result, the 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.

Solicitors:

Loo & Koo, Auckland, for Appellant

Boyle Mathieson, Henderson, Auckland, for Respondents