Van Delden v Waitaki District Council

[2021] NZHC 2525

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2021-476-000003

[2021] NZHC 2525

BETWEEN

RINAE VAN DELDEN

Appellant

AND

WAITAKI DISTRICT COUNCIL

Respondent

Appearances:

K M Henry for Appellant

B K Coleman for Respondent

Judgment:

24 September 2021

(Determined on the papers)

JUDGMENT OF OSBORNE J

[Costs]

This judgment was delivered by me on 24 September 2021 at 3.25 pm

Registrar/Deputy Registrar Date:

RINAE VAN DELDEN v WAITAKI DISTRICT COUNCIL [2021] NZHC 2525 [24 September 2021]

Costs application

[1]    On 31 August 2021, I dismissed an appeal against an order of the District Court for the destruction of a dog. The order was made under s 57(3) Dog Control Act 1996.1 The order was made in the context of an otherwise unsuccessful prosecution of the appellant for an offence under s 57(2) Dog Control Act.

[2]    The  appeal  was  dismissed  with   costs   reserved.2   For   the  respondent, Mr Coleman now seeks an order for costs and disbursements under pt 14, High Court Rules 2016. The appellant opposes any award.

Costs jurisdiction

[3] For the appellant, Ms Henry submits that the applicable regime for costs is to be found in the Costs in Criminal Cases Act 1967 (the Act) and the Costs in Criminal Cases Regulations 1987 (the Regulations).

[4]    The Court has the power under s 8 of the Act to make such order as to costs as it thinks fit, subject to the Regulations.

[5]    The maximum costs which may be awarded in respect of an appeal such as this are $226 for each half day or part half day occupied in court.3

[6]    That maximum scale of costs is subject to s 13(3) of the Act which permits the Court to nevertheless make an order for payment of costs in excess of scale if satisfied, having regard to the special difficulty, complexity, or importance of the case, that the payment of greater costs is desirable.

Discussion

[7]    First, I recognise the appeal required this Court to consider two conflicting lines of authority, ultimately following one and not applying the other.4 While that

1      Waitaki District Council v van Delden [2021] NZDC 10019.

2      van Delden v Waitaki District Council [2021] NZHC 2264, at [86].

3      Costs in Criminal Cases Regulations 1987, reg 3 and sch 1.

4      van Delden v Waitaki District Council, above n 2, at [40]–[70].

consideration alone would not have led me to award the respondent costs, it is a matter properly to be taken into account in relation to s 8(6) of the Act.

[8]    Secondly, and most significantly in my judgement, the process by which the destruction order came to be made raised a jurisdictional issue of significance which could have been avoided if the prosecutor in the court below had identified the request for a destruction order before the charge against the appellant was dismissed. In the way matters proceeded in the District Court a correct jurisdictional basis for considering and granting the destruction order was not established. Even on appeal, it was this Court rather than counsel for the respondent which identified the jurisdictional basis on which the District Court could consider the making of a destruction order, namely s 18 Criminal Procedure Act.5 This was not a case where, as submitted for the respondent, the slip rule in r 1.6 Criminal Procedure Rules 2012 applies.

[9]    After considering these circumstances, I am satisfied that the just outcome in this proceeding is that no order as to costs or disbursements will be made.

Order

[10]There is no order to costs and disbursements.

Osborne J

Solicitors:

K M Henry, Barrister, Oamaru for the Appellant

Dean & Coleman Law Group, Oamaru for the Respondent

5      At [37]–[39].