S v Police - [2017] NZHC 1804

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002150 [2017] NZHC 1804

UNDER the Judicature Amendment Act 1972

IN THE MATTER

of an application for judicial review

BETWEEN

S
First Plaintiff

CQ
Second Plaintiff

D
Third Plaintiff

AND

NEW ZEALAND POLICE First Defendant

DISTRICT COURT AT AUCKLAND Second Defendant

Hearing: On the papers

Judgment:

1 August 2017

COSTS JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 1 August 2017 at 3 pm. pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland.

Copies to: Plaintiffs

S v POLICE [2017] NZHC 1804 [1 August 2017]

[1] The background is set out in my earlier judgment.1

[2] In brief, Police brought a strike out application against claims brought by S and D with some factual connection but little else in common. The application succeeded in relation to S, but failed by a fine margin in relation to D. Police seek (2B) increased costs against both. D resists costs on the basis the strike out application failed against him. Counsel for S has since changed. Through Ms Cooper, S now acknowledges her claim “should never have been brought”. However, S submits costs should not be awarded against her as the proceedings were
“driven” by D.2

[3] Key costs principles are helpfully contained within rr 14.1 and 14.2 of the

High Court Rules 2016. These provide:

14.1 Costs at discretion of court

(1) All matters are at the discretion of the court if they relate to costs—

(a) of a proceeding; or

(b) incidental to a proceeding; or

(c) of a step in a proceeding.

(2) Rules 14.2 to 14.10 are subject to subclause (1).

(3) The provisions of any Act override subclauses (1) and (2).

14.2 Principles applying to determination of costs

The following general principles apply to the determination of costs:

(a) the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

(b) an award of costs should reflect the complexity and significance of the proceeding:

(c) costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:

(d) an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:

1 S v Police [2017] NZHC 1060 at [3]–[12].
2 CQ took no active role in the proceeding. Its inclusion as a plaintiff remains a mystery.

(e) what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs:

(f) an award of costs should not exceed the costs incurred by the party claiming costs:

(g) so far as possible the determination of…

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.

Continue reading S v Police

Details

AGLC: S v Police [2017] NZHC 1804
Case: [2017] NZHC 1804
Decision Date: 1 August 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, S, CQ, and D brought claims against the New Zealand Police and the District Court at Auckland. The Police brought a strike-out application against the claims, which were related factually but differed significantly. The application succeeded against S, but narrowly failed against D. Police sought increased costs against both S and D, and D resisted the application on the basis that the strike-out application had failed against him. S’s counsel had changed, and S now acknowledged that her claim should not have been brought, but argued that costs should not be awarded against her because the proceedings were driven by D.

The court had to determine whether increased costs were appropriate and, if so, what amount. The court noted that the principles of costs are set out in rules 14.1 and 14.2 of the High Court Rules 2016. These rules provide that the party who fails in a proceeding or interlocutory application should pay costs to the party who succeeds. The court also had to consider the complexity and significance of the proceeding in determining the appropriate costs.

The court found that D’s claim was not so clearly untenable that it should have been struck out, and therefore, declined to award costs against him. However, the court found that S’s claim was unsustainable and an abuse of process, and therefore, increased costs were necessary. The court rejected S’s argument that the proceedings were driven by D, and found that S was liable for 75% of Police’s 2B costs as uplifted by 50%.

The court ordered that S was liable for 75% of Police’s 2B costs as uplifted by 50%. The court also noted that some downward adjustment must be made in relation to S, for not all of the time spent in connection with the proceeding was exclusively attributable to her. A reduction of 25% was appropriate, and therefore, S was liable for 75% of Police’s 2B costs as uplifted by 50%. The court did not award any costs against D.

Orders