Prebble v Awatere Huata (No 2)

IN THE SUPREME COURT OF NEW ZEALAND

SC CIV 9/2004
[2005] NZSC 18

BETWEENRICHARD WILLIAM PREBBLE

First Appellant

ANDKEN SHIRLEY

Second Appellant

ANDRODNEY HIDE

Third Appellant

ANDMURIEL NEWMAN

Fourth Appellant

ANDDONNA AWATERE HUATA

Respondent

Court:Elias CJ, Gault, Keith, Blanchard and Tipping JJ

Counsel:J E Hodder and B A Davies for Appellants

P J K Spring and A J Lloyd for Respondent

Judgment:19 April 2005 

JUDGMENT ON COSTS

REASONS

(Given by Elias CJ)

[1]       Rule 44 of the Supreme Court Rules permits the Court to make “any orders that seem just concerning the whole or any part of the costs and disbursements of a civil appeal or an application to bring such an appeal”.  In the Court’s judgment of 18 November 2004 it was held that the appellants, having been successful in the appeal, were entitled to costs.  Counsel were invited to file memoranda as to quantum and disbursements.  That course was adopted by the Court since the case was the first substantive one to be determined by it and provided an opportunity for it to consider the general approach it should adopt to costs.  For the future, it will usually be unnecessary for parties to make submissions on general approach unless the general approach outlined here is inappropriate in the circumstances of the particular appeal.

Costs will generally follow the event

[2]       As invited, counsel have filed memoranda setting out their contentions as to the approach the Court should take in settling an award of costs.  Counsel for the respondent has also submitted that no award of costs should be made.  That submission is made on the basis that any private interest of the respondent in the outcome of the litigation was outweighed by the public interest in having public law issues of general importance raised by the case determined by the court of final appeal.  Counsel relied on s 3 of the Supreme Court Act 2003 which provides that a purpose of the Act is to improve access to justice. We were also referred to New Zealand Maori Council v Attorney-General[1] where the Privy Council declined to award costs to the successful respondent.  The Judicial Committee considered that the appellants in that case were acting to protect “part of the heritage of New Zealand” without any motive of personal gain.  In addition, the different views expressed in the Court of Appeal meant that “an undesirable lack of clarity inevitably existed in an important area of the law which it was important that Their Lordships examine”.  In those circumstances the Judicial Committee considered it just that there should be no order as to costs.[2]  It is argued on behalf of the respondent that it is consistent with the principle discussed in the New Zealand Maori Council case and with the purpose of the Act in securing better access to justice that litigants who act responsibly in litigation of general public interest and importance should not be deterred by the prospect of costs orders if the result is adverse to…