Small v A Judicial Committee HC Christchurch CIV 2009 409 2622
[2010] NZHC 506
•20 April 2010
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CIV 2009 409 2622
IN THE MATTER OF the Judicature Amendment Act 1972 Part 1 AND IN THE MATTER OF of the New Zealand Rules of Harness Racing
AND IN THE MATTER OF of a deicsion of the Judicial Committee
BETWEEN GEOFFREY CLEMMENT SMALL
Plaintiff
AND A JUDICIAL COMMITTEE
First Defendant
AND NEILL R SCOTT
Second Defendant
Judgment: 20 April 2010
JUDGMENT AS TO COSTS OF CHISHOLM J
[ 1 ] This proceeding was discontinued by the plaintiff on 12 March 2010. Both
defendants seek costs against the plaintiff. Those applications are opposed by the plaintiff who cross-claims against the defendant for costs in relation to the initial phase of the proceeding.
Background
The plaintiff is a licensed trainer under the New Zealand Rules of Harness Racing. The first defendant is a Judicial Committee established under the Racing Act 2003 and the second defendant is the chief stipendary steward.
On 16 October 2009 the second defendant laid two charges against the plaintiff alleging breaches of the Rules of Harness Racing. When those charges came to a hearing before the first defendant on 27 October the plaintiff sought an
SMALL V A JUDICIAL COMMITTEE AND ANOR HC CHCH CIV 2009 409 2622 20 April 2010
adjournment to enable him to consult a lawyer and obtain representation. The application was refused. After two further applications for an adjournment were also refused, the plaintiff withdrew.
Ultimately, on 2 November 2009, the Judicial Committee found both charges proved and indicated that it would sentence the plaintiff on 9 November 2009. On 6 November the plaintiff issued this proceeding seeking judicial review of the Committee’s decision on the basis that rejection of the plaintiff’s applications for adjournments were unreasonable and contrary to natural justice. He also sought an interim order preventing the Judicial Committee from sentencing him, but that application was refused by French J.
On 9 November 2009 the plaintiff was disqualified by the Judicial Committee from operating as a public registered trainer for a period of six months. On 12 November 2009 I considered a further ex parte application for interim relief staying the order for disqualification and directed that the application be served. A few days later a telephone conference was convened and at that stage there were indications that the plaintiff would pursue his appeal rights provided by the Rules. An appeal was lodged with the Appeals Tribunal, the grounds of this appeal being broadly along the same lines as the application for judicial review.
Following a hearing on 11 December 2009 I made an order staying the disqualification until 1 February 2010 in the expectation that by that time the Appeals Tribunal would have heard and determined the appeal. A 2B order for costs in favour of the plaintiff was made against the second defendant.
On 29 January 2010 the Appeals Tribunal (the Hon Sir John Hansen and Professor Hall) issued their decision allowing the appeal, dismissed one of the charges, and replaced the disqualification with a fine. Given that outcome the plaintiff discontinued his application for judicial review.
Applications for costs
For the first defendant Mr Squire QC seeks costs in the sum of $2,068.84 against the plaintiff. That figure represents disbursements incurred by the first defendant by way of transcription and printing costs and air fares to Christchurch for the hearing on 11 December 2009. In support of the application Mr Squire submits that there is no basis either in principle or otherwise why the plaintiff should not meet the expenses of the first defendant.
Mr Lange seeks costs and disbursements on behalf of the second defendant totalling $7,520, calculated on a 2B basis, together with disbursements of $90 by way of filing fees. These costs are sought on the basis that the substantive proceeding has been discontinued.
Plaintiff’s response
[ 10] Mr McMenamin contends that the plaintiff should not have to pay costs to either defendant. To the contrary, he submits that the plaintiff should receive costs from the second defendant for the initial stages of the proceeding. He agrees that 2B is the appropriate cost category.
[ 11 ] On the assumption that the defendants base their applications for costs on r 15.23, Mr McMenamin claims that their applications are contrary to authority and misconceived. He argues that application of that rule is restricted to “unilateral discontinuances” (Uttinger v Baycity NZ Ltd (2008) 19 PRNZ 54) and that it does not apply to a case like this where the proceeding has been properly commenced but has not proceeded to trial because the plaintiff has been successful in obtaining relief in a way which has rendered the proceeding unnecessary (Ford v First National Real Estate Network Ltd (2006) 18 PRNZ 432).
[ 12] Mr McMenamin submitted that the plaintiff’s decision to bring the proceeding was vindicated by:
(a) This Court’s decision to grant interim relief.
(b) The Appeals Tribunal’s acknowledgement (when considering costs)
that the plaintiff had been wrongly denied legal representation.
He also contended that it was necessary for the plaintiff to bring the application for review as a necessary precaution to ensure that there was a full re-hearing before the appeal authority, there being no assurance that this would happen when the judicial review proceeding was initiated.
Discussion
Given the plaintiff’s discontinuance of his application for judicial review, r 15.23 represents the appropriate starting point:
Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.
The issue is whether in all the circumstances the Court should depart from the presumption contained in this rule.
As I see it, a major problem standing in the way of an award of costs to the defendants is that on 11 December 2009 I awarded costs to the plaintiff against the second defendant after making the interim order in favour of the plaintiff. An award of costs had been opposed by the second defendant (there being no suggestion that the first defendant should carry those costs) on the basis that the issue of costs should await the outcome of the substantive hearing. I rejected that submission on the basis that the policy under the rules is that costs should be determined as far as possible at the conclusion of each step.
Amongst other things the award of costs in favour of the plaintiff recognised that he had acted reasonably in commencing the proceeding and that he had been successful in that initial phase. The disbursements now sought by the first defendant include Mr Squires’ attendance at that hearing and the costs sought by the second defendant relate to events leading up to that hearing. As I see it, an award of costs in favour of the defendants would be irreconcilable with the order that has already been made.
[16] Following the decision of 11 December 2009 the Appeals Tribunal conducted a full re-hearing which effectively overcame the plaintiff’s complaint about the denial of representation and natural justice. It also achieved an outcome that was favourable to the plaintiff to the extent that he was acquitted on one of the charges and the disqualification was replaced with a fine. Moreover, I understand that the Tribunal quashed the order for costs made by the Judicial Committee on the grounds that “Mr Small was effectively denied legal representation when we consider he was entitled to it”. Thus as matters turned out, the plaintiff achieved his objective through the appeal process and did not need to pursue the judicial review proceeding any further.
[17] That does not mean, however, that the plaintiff was not justified in issuing the proceeding in the first place. When the proceeding was issued there was no guarantee that the Appeals Tribunal would conduct a full re-hearing and the plaintiff was justified in issuing the judicial review proceeding to protect his position in that regard. After the Appeals Tribunal delivered its decision the plaintiff did not take any further steps in the judicial review proceeding, apart from participating in telephone conferences and ultimately discontinuing.
[ 18] I agree with Mr McMenamin that there are some parallels between this case and Ford v First National Real Estate Network Ltd. In that case the plaintiff issued proceedings challenging the decision of the defendant to allow the a third party to establish a real estate agency. After the proceedings were issued the third party withdrew its application to establish the agency. Because the plaintiff had indirectly obtained the relief that it sought to achieve by issuing the proceeding, the proceeding was rendered unnecessary and it was dismissed. MacKenzie J accepted that the proceeding had been properly commenced. He allowed the plaintiff a “modest” award of costs in relation to the initial stages of the proceeding.
[ 19] In Kroma Colour Prints v Tridonicatco NZ Ltd (2008) 18 PRNZ 973 (CA) at [12] the Court noted that the presumption in favour of awarding costs to a defendant against whom a proceeding has been discontinued might be displaced “if there were just and equitable circumstances not to apply it”. I have come to the conclusion that such circumstances exist in this case and that the applications by the defendants for costs should be refused. To the extent that the plaintiff seeks costs against the defendants for the initial phase of the proceeding his application is misconceived because he has already received costs by virtue of the order made on 11 December 2009.
Outcome
[20] The defendants’ applications for costs are refused. The plaintiff’s cross- application is also refused.
Solicitors: K J McMenaminn & Sons, Christchurch for Plaintiff
R B Squire, QC, Wellington
Crown Solicitor, Christchurch
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