Counsel: G F Little and G E Whiteford for the Plaintiff
J F Mather and L M Herbke for the First Defendant A C M Fisher QC, J K Gorman and
E Lay for the Second Defendant

Judgment: 21 January 2019

JUDGMENT OF EDWARDS J

[re Costs]

This judgment was delivered by Justice Edwards on 21 January 2019 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel: A C M Fisher QC, Auckland
G F Little, Auckland J F Mather, Auckland

Solicitors: Davenports City Law, Auckland Barter Law, Auckland
Crown Law, Wellington

TAYLOR v ROPER [2019] NZHC 16 [21 January 2019]

[1] In my judgment dated 5 September 2018, I dismissed Ms Taylor’s civil claim against Mr Roper and against the Attorney-General on behalf of the Royal New Zealand Air Force (RNZAF).1

[2] Ms Taylor sought damages (including exemplary damages) against both Mr Roper and the RNZAF for the mental harm she alleged was caused by Mr Roper’s actions between 1985 and 1987. Sixteen witnesses, including two experts, gave evidence at trial over one and a half weeks. The briefs of evidence of other witnesses were taken as read.

[3] I found it likely that Mr Roper had acted as Ms Taylor alleged, and that these acts were a material and substantial cause of Ms Taylor’s mental injury, namely, her post-traumatic stress disorder.2 However, Ms Taylor’s claim did not succeed because it had not been brought within the time limits prescribed by the Limitation Act 1950, and there was insufficient evidence that she was suffering from a disability that would have prevented her from bringing her claim within time.3

[4] Both the RNZAF and Mr Roper sought an award of costs. The RNZAF subsequently withdrew its application. Mr Roper claims costs of $55,638.50 plus disbursements of $220.4 Costs have been calculated according to the scale set out in the High Court Rules 2016. The total sum claimed is substantially less than the actual costs and disbursements incurred by Mr Roper which total $100,213.21. Mr Roper was in receipt of legal aid for part of the proceeding. The sum of $75,888.35 has been paid out under that grant for both costs and disbursements.

[5] Ms Taylor opposes costs and submits that no order should be made in favour of Mr Roper. Although she was unsuccessful in establishing her claim, she says that Mr Roper failed on the issue of whether the alleged acts of assault and false

1 M v Roper [2018] NZHC 2330.
2 At [125].
3 At [155].
4 This figure is slightly less than that calculated in Mr Roper’s schedule. The difference lies in the allowance for case management conferences.…

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 Taylor v Roper

Details

AGLC: Taylor v Roper [2019] NZHC 16
Case: [2019] NZHC 16
Decision Date: 21 January 2019

CaseChat Overview and Summary

The plaintiff, Mariya Taylor, brought a claim against Robert Roper and the Attorney-General on behalf of the Royal New Zealand Air Force for damages, including exemplary damages, arising from alleged sexual abuse by Roper between 1985 and 1987. The claim was dismissed by Justice Edwards on the basis that it was not brought within the time limits prescribed by the Limitation Act 1950. Roper sought costs for the successful defence of the claim, while Taylor opposed the award of costs on the basis that Roper’s defence was unsuccessful on the issue of whether the alleged acts of assault and false imprisonment occurred, and that this failure significantly increased her costs at trial.

The court considered the principles governing the award of costs and the circumstances in which costs may be reduced or refused. The court found that Roper was entitled to costs for successfully defending the claim, but that the costs should be reduced by 50% on the basis that he lost on an issue which significantly increased Taylor’s costs. The court rejected Taylor’s submission that costs should be refused altogether on the basis that Roper’s conduct was outrageous and he had not suffered any penalty for it. The court found that an award of costs was not an occasion to penalise conduct that formed the subject matter of the claim, and that refusing costs would undermine the integrity of the costs regime.

The court awarded Roper 50% of costs calculated on a schedule 2B basis, plus disbursements of $220. This reduction maintains the integrity of the costs regime and is consistent with the principles in r 14.2 which underpin it. The practical effect of that reduction is that Roper will be left with a significant cost burden, despite successfully defending the claim at trial. But that is the ordinary consequence of an orthodox application of the cost rules in this case.

Orders