Pivott v Auckland Council - [2023] NZHC 1876

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000047

[2023] NZHC 1876

BETWEEN
TERRYMOANA PIVOTT

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: On the papers

Counsel:

M Büdler and H Croucher for the Appellant J Libbey and C Sleigh for the Respondent

Judgment:

19 July 2023

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 19 July 2023 at 10 am

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
Public Defence Service, Manukau Rice Speir, Auckland

PIVOTT v AUCKLAND COUNCIL [2023] NZHC 1876 [19 July 2023]

[1] This is a judgment on an application by the respondent, Auckland Council (Council), for costs on an appeal brought by the appellant, Terrymoana Pivott, which was abandoned on the morning of the hearing.

[2] Terrymoana Pivott was found guilty in the District Court in her absence at a formal proof hearing on three charges arising out of the same incident pursuant to s 57(2) of the Dog Control Act 1996.1 One of her two dogs, OJ, attacked another dog. Ms Pivott’s second dog, MJ, also attacked that other dog as well as its owner. Judge Large in the District Court imposed fines, costs and ordered the destruction of OJ and MJ.

[3] Ms Pivott appealed her conviction and the order for the destruction of her two dogs. She was unrepresented until after the commencement of her appeal. Ms Pivott sought to adduce fresh evidence on appeal. The Council opposed the appeal and the application to admit fresh evidence. As a consequence of further disclosure made by the Council on the afternoon of Sunday 18 June 2023, the day before the hearing, Ms Pivott, having received legal advice as regards the disclosure, abandoned the appeal on the morning of the hearing on 19 June 2023.

[4] In support of an argument of total absence of fault and exceptional circumstances in relation to the test for orders for destruction of dogs, Ms Pivott had said in her sworn affidavit that, unknown to her, construction workers had removed a portion of the fencing around her rental property on 20 September 2021, the day before the offence occurred. An affidavit from Ms Pivott’s landlord was to the same effect.

[5] However, the contents of the disclosure material provided to Ms Pivott on Sunday 18 June 2023 revealed that the fencing had in fact been missing for at least ten days. There were photographs taken on 10 and 14 September 2021 at the time of property inspections on those dates which showed the missing fencing.

[6] The Council now applies for costs against Ms Pivott on the basis that she withdrew her appeal after the Council discovered that the factual premise of the

1 Auckland Council v Pivott [2023] NZDC 1099.

appeal, as set out in her sworn affidavit, was false. The Council seek costs in excess of the scale costs rate in the sum of approximately $5,000.

The law

[7] Costs awards in criminal proceedings are governed…

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: [2023] NZHC 1876
Decision Date: 19 July 2023

CaseChat Overview and Summary

This case involves Terrymoana Pivott, the appellant, who had appealed against her conviction and the order for the destruction of her two dogs, which was upheld by the District Court. The respondent, Auckland Council, sought costs from Pivott as her appeal was abandoned after the Council discovered a false statement in her affidavit. Pivott had claimed that the fencing around her rental property was removed the day before the incident, which was crucial to her appeal. However, the Council's disclosure revealed that the fencing had been missing for at least ten days. The primary legal issue was whether the Council was entitled to costs above the scale costs rate under the Costs in Criminal Cases Act 1967. The court considered whether the appeal was abandoned in good faith and whether there was a basis for awarding costs above the scale. The court found that while Pivott had falsified evidence, the abandonment of the appeal occurred shortly after the relevant disclosure, which was made the day before the hearing. Therefore, the court concluded that the abandonment was not unjustified and decided not to award costs against Pivott.

The court emphasised that the award of costs upon abandonment of an appeal is not guaranteed nor automatic. The court noted that Pivott had ample time to withdraw the appeal earlier if she had received the crucial disclosure sooner. The court also found that the appeal was not of special difficulty, complexity, or importance, and thus there was no basis for awarding costs above the scale. The court concluded that the appeal was unmeritorious and not brought in good faith, but these factors did not satisfy the criteria in the Act for awarding costs above the scale. The court declined the Council's application for costs.

Orders