Smith v The University of Canterbury HC CHCH CIV 2007 409 2826

[2008] NZHC 2257

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2007 409 2826

BETWEEN  RODNEY JOHN SMITH Plaintiff

ANDTHE UNIVERSITY OF CANTERBURY First Defendant

AND  B J COPELAND Second Defendant

Appearances: Mr Smith in Person

T Forsey and R Raymond for First Defendant
P Mortlock for Second Defendant

Judgment:      8 April 2008

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN As to Costs

Background

[1]      A first case management conference, by telephone, was conducted before me on 29 January 2008.  Mr Smith had applied to adjourn that conference.  I directed it should proceed.  In the outcome, I made a direction the case proceed to a settlement conference before me on 2 April 2008 in Christchurch.

[2]      By  memorandum   filed   on   19   March   2008   Mr   Smith   requested   an adjournment  of  the  settlement  conference.     The  first  and  second  defendants separately filed memoranda in opposition to the application to adjourn the settlement

conference.

RODNEY JOHN SMITH V THE UNIVERSITY OF CANTERBURY AND ANOR HC CHCH CIV 2007 409

2826  8 April 2008

[3]      I dealt with Mr Smith’s application by way of Minute dated 26 March 2008. I concluded by noting:

The settlement conference will proceed.  Mr Smith, as are the other parties, is required to be in attendance.   Any party who fails to attend will likely have costs awarded against them.   Usually, such costs are calculated on a Category 2B basis.

[4]      On 1 April 2008 Mr Smith filed a memorandum advising he would not attend the Judicial Settlement Conference.   Mr Smith advised he would be prepared to attend a settlement conference after his thesis extension deadline ( 15 July 2008).

[5]      I  have  now  received  memoranda  from  counsel  for  the  first  and  second defendants requesting costs be fixed.  Mr Smith has filed memoranda in opposition. Mr Smith’s various reasons include:

(a) Little delay or expense would occur if the Judicial Settlement

Conference was adjourned.

(b) He gave prior notice he would not be attending.

(c) Had a defendant failed to turn up he, Mr Smith, would not be awarded costs because costs are not awarded to lay litigants who represent themselves.

(d) Mr Smith resides in Wellington.   To attend would have caused him delays in completing his thesis.

(e) Costs should not include the costs of filing a memorandum in opposition to the application for adjournment.

(f) Generally, for any of the above reasons, it would be unjust.

Judgment

[6]      In response to Mr Smith’s application for an adjournment of it counsel for the defendants filed memoranda in opposition.   In the outcome, the request for adjournment was refused.

[7]      The day before the settlement conference was to proceed, Mr Smith advised he would not attend.   Earlier he had been advised of possible adverse costs consequences.

[8]      Counsel for the two defendants filed memoranda claiming costs for the adjournment incurred in opposing the original request for an adjournment.  It is not inappropriate to consider awarding costs in connection with the application for the adjournment, as well as arising out of the failure to attend as required.  Counsel filed memoranda in opposition to the application for adjournment.    Subsequent memoranda  supporting  an  application  for  costs  identifies  each  defendant  had prepared and filed a memorandum for the Judicial Settlement Conference, including “will say” statements and supporting documents.  This was done prior to Mr Smith’s late application for an adjournment of the Judicial Settlement Conference.

[9]      Both counsel have calculated costs by reference to item 7.4 of Schedule 3 to the High Court Rules on the basis that whilst preparation was less than necessary for a full hearing, it was more than required for an interlocutory application.

[10]     To address some of Mr Smith’s submissions:

(a) Mr Smith has consistently resisted the Court’s efforts to advance management of his proceeding.

(b) The Court has a wide discretion as to costs.  Among matters to be considered upon an award is a party’s obligation to comply with time limits, and to maintain discipline in the conduct of proceedings.

[11]     Because  of  the  manner  of  Mr  Smith’s  pleading,  the  first  and  second defendants have chosen to have separate representation.  It is not inappropriate for any award of costs to be made separately in favour of each defendant.

[12]     I  am  satisfied  the  separate  applications  for  costs  are  reasonable  and appropriate.

[13]     Costs are awarded against the plaintiff in favour of the first defendant in the sum of $2,240.00.

[14]     Costs are awarded against the plaintiff in favour of the second defendant in the sum of $2,240.00.

Solicitors

Mr Smith in Person

Duncan Cotterill, Christchurch for First Defendant

Mortlocks, Christchurch for the Second Defendant