Prasad v Manukau District Court HC Auckland CIV 2009-404-8484

[2010] NZHC 1593

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-8484

BETWEEN  RAJENDRA PRASAD Applicant

ANDMANUKAU DISTRICT COURT First Respondent

ANDSAGE GROUP LIMITED Second Respondent

ANDINDIANA PUBLICATIONS (NZ) LIMITED

Third Respondent

ANDRAVIN LAL Fourth Respondent

Hearing:         On the Papers

Judgment:      23 August 2010

COSTS JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

23 August 2010 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Crown Law Office, PO Box 2858, Wellington 6140

Mangere Community Law Centre, PO Box 43 201, Manukau 2153

Copy to:
R Prasad, PO Box 14 637, Panmure, Auckland

G M Harrison, PO Box 4338, Shortland Street, Auckland 1140

PRASAD V MANUKAU DISTRICT COURT AND ORS HC AK CIV-2009-404-8484  23 August 2010

[1]      On 25 May 2010 I delivered a judgment striking out the applicant’s statement of  claim.    I directed  that  the  respondents  were  entitled  to  costs  “on  at  least  a Category 2 Band B basis”, but provided also that if any other order was sought as to costs, the respondents might file memoranda within ten working days.   I further stated  that  the  applicant,  Mr  Prasad,  could  have  ten  working days  after  that  to respond and that I would deal costs issues on the papers unless it appeared to me that an oral hearing should be held.

[2]      In accordance with the judgment I have received applications from the first, and third and fourth respondents.  Those parties seek indemnity costs, in the sum of

$12,608.66 in the case of the first respondent, and in the sum of $9,700 in respect of the third and fourth respondents for both of whom Mr Harrison acts.

[3]      The  applications  were  made  on  9  and  11 June,  but  Mr  Prasad  has  not responded, despite the clear terms of my judgment.   He has been active in other respects however and has filed an application for recall of my judgment of 25 May. I dismissed that application without calling on the other parties on 25 June.

[4]      In   support  of  the  first  respondent’s   application  for  indemnity  costs, Ms Warburton has submitted that Mr Prasad acted vexatiously in commencing and continuing what was a hopeless proceeding.   She argued that the proceeding had been commenced for an ulterior motive since the issues raised by the application had already been resolved in litigation between the second respondent and the third and fourth respondents.  She relied on my observation at [29] of the judgment that his motive in making the application for review was plainly an attempt to relitigate the alleged breach of copyright claim that had previously been determined.

[5]      Ms  Warburton  characterised  the  commencement  of  the  proceeding  as showing a wilful disregard of known facts and clearly established law.  As to this, Mr Prasad had claimed that the original proceeding was advanced in the name of the wrong party despite knowing he had applied on legal advice to have himself substituted for Sage Group Ltd.  Further, the Courts (including the Court of Appeal) had on previous occasions held that he had no standing to bring proceedings in the

matter.   In the circumstances the present claim was hopeless and well merited the award of indemnity costs.

[6]      Mr Harrison filed a memorandum along similar lines.  At paragraphs 5 and 6 of his memorandum he summarised the position in this way:

5.        Mr Prasad well knew that he had no status to bring the application for judicial review.  He had been told so by Asher J in his decision of 6th November 2008, declining leave for Mr Prasad to appeal to the Court of Appeal against the dismissal of the appeal by Sage Group Ltd.  He was told so again by the Court of Appeal in its decision of 19th  March 2008, which referred expressly to the affidavit of Mr Prasad of 19th  July 2003, in which he deposed that the company was the correct plaintiff and therefore the owner of copyright in the business directory.

6.        Notwithstanding  this  Mr  Prasad  commenced  proceedings  in  the Manukau District Court alleging that he was the copyright owner, and when faced with an application for summary judgment by the respondents, discontinued that proceeding, and commenced essentially the same proceeding in this Court.  After the respondents had appealed the refusal of Doogue AJ to enter summary judgment in their favour, they appealed to the Court of Appeal.  Before that appeal was heard, this application was filed in December 2009.   It challenged the allocation of the original fixture in the Manukau District Court in June 2005, that is, some four and one half years later.

[7]      Mr Harrison’s accurate and pithy summary can serve for present purposes. Under  r 14.6(4)  of  the  High  Court  Rules  the  Court  may  order  a  party  to  pay indemnity costs where:

(a)       the   party   has   acted   vexatiously,   frivolously,   improperly,   or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding;

[8]      In Bradbury v Westpac Banking Corporation[1] the Court of Appeal observed at [28]:

Indemnity costs, which depart from the predictability of the Rules Committee’s   regime   are   exceptional   and   require   exceptionally   bad behaviour.   That is why to justify an order for such costs the misconduct must be “flagrant” (Prebble v Awatere Huata (No. 2) [2005] 32 NZLR 467 (SCNZ) at para [6]).

[1] Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400

[9]      The  Court  referred  with  approval  to  the  well  known  summary given  by Sheppard  J  in  Colgate-Palmolive  Co  v  Cussons,[2]   of  circumstances  in  which indemnity costs have been awarded.  They included commencement or continuation of proceedings for some ulterior motive and in wilful disregard of known facts or clearly established law.

[2] Colgate-Palmolive Co v Cussons (1993) 46 FCR 225

[10]     I have no doubt in the circumstances that this is an appropriate case for the award of indemnity costs.  Mr Prasad essentially fails to accept decisions that have been made by the Courts time and again, not only that he personally is not able to claim copyright, but also that the claimed copyright has not been breached.   The present proceeding was an attempt to re-open that issue by a back door method.  I consider that he acted vexatiously and frivolously in commencing the proceeding, and in doing so he was effectively ignoring a mounting number of Court decisions adverse to his assertions.

[11]     The costs claimed by the respondents are not unreasonable.

Result

[12]     I   order   that   Mr Prasad   must   pay   the   first   respondent’s   costs   and disbursements in the sum of $12,608.66 (including disbursements) together with

$618.41 for the preparation of the memorandum filed in relation to costs.

[13]     I order that Mr Prasad must pay the third and fourth respondent’s costs and disbursements in the sum of $9,700