Television New Zealand Ltd v Wicks

[2022] NZHC 3071

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1046

[2022] NZHC 3071

BETWEEN

TELEVISION NEW ZEALAND LTD

Appellant

AND

NOLA WICKS & ANOR

Respondent

Appearances:

J Edwards, H Soar and T Whale for the appellant

A Scott-Howman for the Broadcasting Standards Authority F Pilditch QC as counsel assisting

Judgment

(on the papers):

24 November 2022

COSTS JUDGMENT OF ROBINSON J

This judgment was delivered by me on 24 November 2022 at 10:00am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:

Russell McVeagh

Counsel:

F Pilditch QC

A Scott-Howman, Barrister

TELEVISION NEW ZEALAND LTD v NOLA WICKS & ANOR [2022] NZHC 3071 [24 November 2022]

Introduction

[1]                 On 13 May 2021, the Broadcasting Standards Authority (Authority) found that Television New Zealand Ltd (TVNZ) breached the privacy of a woman featured in a broadcast on 1 News.1 TVNZ appealed the decision to this Court and argued four grounds of appeal. On 31 March 2022 I issued a judgment directing the Authority to reconsider its decision in light of the evidence filed on appeal by TVNZ on the final three grounds of appeal.2 I dismissed the first ground of the appeal.

[2]                 Mr Pilditch KC was appointed as counsel to assist to the Court, primarily because there was no effective contradictor to the appeal. At the end of my judgment I noted that Mr Pilditch had suggested there may be grounds upon which the Court should direct TVNZ to contribute to his costs.3 I directed that the parties file any memoranda on this issue to be dealt with on the papers.

Relevant law

[3]Section 178 of the Senior Courts Act 2016 (Act) provides:

178 Costs where intervener or counsel assisting court appears

(1)This section applies to proceedings in any senior court or other court.

(2)If the Attorney-General or the Solicitor-General or any other person appears as an intervener or counsel to assist the court in any civil proceedings or in any proceedings on any appeal and argues any question of law or of fact arising in the proceedings, the court may, subject to the provisions of any other Act, make any order it thinks just—

(a)as to the payment by any party to the proceedings of the costs incurred by the Attorney-General or the Solicitor-General in so doing; or

(b)as to the payment by any party to the proceedings or out of public funds of the costs incurred by any other person in so doing; or

(c)as to the payment by the Attorney-General or the Solicitor- General or that other person of any costs incurred by any of those parties by reason of his or her so doing.

1      Wicks v Television New Zealand Ltd (BSA Decision number 2020-126, 13 May 2021).

2      Television New Zealand Ltd v Wicks [2022] NZHC 597.

3 At [68].

…

[4]                 Mr Pilditch relies on s 178(2)(b) of the Act. This section confers on the Court a broad discretion in relation to costs awards to interveners and counsel to assist the court, including costs orders against another party to the proceeding. Whether such an award is appropriate will depend on the particular circumstances of a given case.

[5]                 In Earthquake Commission v Insurance Council of New Zealand Inc a full court of the High Court outlined several relevant factors likely to be relevant to whether an order under s 178 of the Act is appropriate:4

(1)    Whether the case involves a matter of substantial public importance. This will be critical if costs are sought to be paid from public funds.

(2)    Whether the applicant represents a field of interest relevant to the proceeding beyond their private or personal viewpoint.

(3)    Whether the applicant has provided material assistance to the Court by presenting evidence or submissions on an issue or issues not adequately covered by other parties or at all.

(4)    Whether any of the principles guiding an award of costs under Part 14 of the High Court Rules may be applicable by analogy. This may be particularly relevant in cases where an order is sought against a party rather than from public funds.

Submissions

[6]                 Mr Pilditch submits that a costs award may be justified, and that an order for a contribution by TVNZ to his actual costs of $7,679.70 (inclusive of GST) could be made. Costs calculated on a 2B basis amount to $10,994.

[7]                 Mr Pilditch acknowledges that TVNZ was partly successful insofar as the Court remitted the decision to the Authority to reconsider three grounds of the appeal. However, Mr Pilditch submits that the appeal and the Court’s decision came about largely because TVNZ failed to present arguments and evidence to the Authority at first instance despite having the opportunity to do so. He submits that had TVNZ

4      Earthquake Commission v Insurance Council of New Zealand Inc [2015] NZHC 457, (2015) 22 PRNZ 427 at [6]. This case dealt with the equivalent provision in the Judicature Act 1908, the factors remains equally relevant under s 178 of the Senior Courts Act 2016.

taken this opportunity, the public funds expended on counsel to assist could have been avoided altogether.

[8]                 Mr Pilditch submits that in these circumstances a costs award may be justified. He states this outcome would encourage parties to administrative complaints processes to utilise these processes fully, rather than relying on appellate courts to address issues that could and should have been raised at first instance.

[9]                 Mr Edwards, counsel for TVNZ, submits that the outcome of the appeal strongly weighs against an award of costs against TVNZ. He states that TVNZ was largely successful, as acknowledged by Mr Pilditch. Mr Edwards submits that the appeal raised issues of public importance to the wider news industry and concerned the functions and procedures of the Authority. As such Mr Edwards submits it is appropriate that Mr Pilditch be paid from public funds.

[10]              Mr Edwards argues that the extent to which the appellant presented evidence to the Authority  is  not  relevant  to  the  issue  of  costs.  He  also  disagrees  with Mr Pilditch’s submission that a cost award against TVNZ would encourage parties to utilise administrative complaints processes more fully. He submits that the Court’s decision itself is sufficient to provide guidance to parties to utilise these processes fully at first instance. Mr Edwards submits that even were a costs award to have such an effect, it would be contrary to the interests of justice to require a largely successful party to pay the costs of counsel assisting, merely to encourage other parties to follow proper procedures in the future.

Analysis

[11]              The appeal involved matters of public importance, both substantively in respect of the requirements of Standard 10 (Privacy) of the Free-to-Air Television Code of the Broadcasting Practice Code; and procedurally in respect of the Authority’s complaints process and the scope of appeals from the Authority to the High Court. Mr Pilditch significantly assisted the Court by presenting submissions on issues that were not covered by other parties due to the absence of an effective contradictor.

[12]              TVNZ had some success in the appeal as the Authority has been ordered to reconsider its decision in light of evidence adduced by TVNZ for the first time on appeal. Although that evidence could (and arguably should) have been put before the Authority in the first instance, Mr Edwards is right to point out that TVNZ’s application to adduce it on appeal was entirely successful (albeit unopposed). In any event, it has consistently been held that for costs purposes partial success or success on more limited terms is still success.5

[13]              I tend to agree with Mr Pilditch’s submission that had TVNZ engaged more fully with the Authority’s procedure in the first instance, the cost of counsel assisting (and of the appeal generally) may have been avoided altogether. However, on balance I accept Mr Edwards’ submission that the public importance of the substantive and procedural issues raised in the appeal are such that Mr Pilditch’s costs should be paid from public funds. Mr Pilditch’s assistance to the Court was of public benefit. In these circumstances I consider, on balance, that as between the parties costs should lie where the fell, with Mr Pilditch’s costs left to be paid from public funds.6

Result

[14]Costs are to lie where they fell.

5      Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379, at [26].

6      For completeness I record that Mr Pilditch’s costs are entirely reasonable; TVNZ does not suggest otherwise.