Roe v Auckland District Health Board

[2022] NZHC 192

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-248

[2022] NZHC 192

BETWEEN

KELLY ALEXANDRA ROE

Applicant

AND

AUCKLAND DISTRICT HEALTH BOARD

Respondent

Hearing:	On the papers
Judgment:	16 February 2022

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 16 February 2022 at 11.00 am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Auckland District Health Board

Copy to:

K A Roe, Applicant

ROE v AUCKLAND DISTRICT HEALTH BOARD [2022] NZHC 192 [16 February 2022]

Introduction

[1]    In a substantive judgment dated 15 July 2021, I declined to strike out proceedings as sought by the respondent – the Auckland District Health Board – and gave Ms Roe the opportunity to file an amended statement of claim. I stayed the proceedings in the interim.1

[2]    I subsequently gave a costs judgment in favour of the Auckland District Health Board.2

[3]    Ms Roe sought leave to appeal my costs judgment, having earlier unsuccessfully sought to appeal the judgment to the Court of Appeal and then the Supreme Court. I declined to grant leave on 17 December 2021.3

[4]    The Auckland District Health Board now seeks costs in resisting Ms Roe’s application. It has calculated costs on a 2B basis in the sum of $5,019. It does not however seek this sum, as the actual cost to it was only $2,250, plus GST. It seeks an award of $2,250.

[5]    Ms Roe was invited to file submissions. She has indicated that she does not intend to do so.

Analysis

[6]    I am satisfied that an award of costs is appropriate. Ms Roe’s application for leave to appeal was devoid of any legal or factual merit. As a result of the application, the Auckland District Health Board was put to unnecessary time and expense. As the successful party, it is entitled to its reasonable costs from Ms Roe.

[7]    Here, I am satisfied that the proceedings were appropriately categorised on a 2B basis. If the applicable schedules were to be applied, the award would exceed the actual costs incurred. Rule 14.2(f) of the High Court Rules 2016 provides that an

1      Roe v Auckland District Health Board [2021] NZHC 1780.

2      Roe v Auckland District Health Board [2021] NZHC 2162.

3      Roe v Auckland District Health Board [2021] NZHC 3530.

award of costs should not exceed the costs incurred by the party claiming costs. In such situations, it is instead the amount incurred which is normally awarded.4

[8]    Applying these principles, it follows that the appropriate award against Ms Roe and in favour of the Auckland District Health Board is the sum of $2,250. I award costs accordingly.

Wylie J

4      Taunoa v Attorney-General [compensation] (2004) 8 HRNZ 53 (HC) at [45].