Wakefield v O'Byrne - [2024] NZHC 2143

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-632

[2024] NZHC 2143

BETWEEN
WENDY MAY WAKEFIELD

Appellant

AND

ROGER WILLIAM O’BYRNE

Respondent

Hearing: On the papers

Counsel:

R E Walsh for the Appellant C Light for the Respondent

Judgment:

2 August 2024

JUDGMENT OF HARLAND J

(as to wasted costs)

Introduction

[1] This case comprises an appeal and a cross-appeal against a costs determination of Judge C N Tuohy delivered on 19 October 2023 following his judgment on 12 September 2023 dismissing the appellant’s application against the respondent under the Harassment Act 1997.1

[2] The appeal was due to be heard before me on 2 July 2024. It was however adjourned by me, largely because counsel for the appellant filed her submissions late and Mr Light, for the respondent, considered his client would be prejudiced by being required to proceed with the hearing because of this. I decided to adjourn the hearing

1 Wakefield v O’Byrne [2023] NZDC 19269.

WAKEFIELD v O’BYRNE [2024] NZHC 2143 [2 August 2024]

but made further directions, including directions addressing the respondent’s indication that he wished to apply for wasted costs.

[3] Memoranda have been filed dealing with the issue of costs on the adjournment, which I determine in this judgment.

[4]I have decided to order the appellant to pay the respondent costs in the sum of

$2,306 for the reasons set out in this judgment.

The application and response to it

[5] The respondent seeks wasted costs for a judicial telephone conference on 1 July and related appearances, as well as preparation for the hearing scheduled for 2 July 2024.

[6] Counsel for the appellant accepts that costs incurred for the filing of the respondent’s memorandum seeking directions on 17 June 2024 ($956) and for the 1 July conference ($543.38) should be paid. She resists the further award of wasted costs of $845.25 claimed by the respondent for preparation in respect of the adjourned hearing.

Background

[7] Counsel for the respondent filed a memorandum dated 17 June addressing the appellant’s failure to file her submissions in support of her appeal and he sought a direction that her submissions be filed no later than 5 pm 19 June 2024, as well as costs for the filing on a 2B basis amounting to $956.

[8] Dunningham J issued a Minute on 18 June 2024 directing that the appellant file her submissions by 5.00 pm on 19 June 2024 and she also directed that any memoranda as to costs from the appellant were to be filed no later than 25 June 2024. The appellant did not meet those deadlines, neither did counsel respond to an email dated 20 June 2024 from the Registry enquiring about the appellant’s submissions.

[9] On 24 June, the respondent filed his submissions in respect of his cross-appeal in the hope that it could proceed on 2 July.

[10] The Registry emailed counsel for the appellant on 24 June 2024, advising of the hearing…

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 Wakefield v O'Byrne

Details

AGLC: Wakefield v O'Byrne [2024] NZHC 2143
Case: [2024] NZHC 2143
Decision Date: 2 August 2024

CaseChat Overview and Summary

Wendy May Wakefield appealed against a determination by Judge C N Tuohy, who dismissed her application against Roger William O’Byrne under the Harassment Act 1997. Following the dismissal, O’Byrne sought wasted costs in relation to an adjournment of the appeal hearing and related activities, which Wakefield contested. The High Court was required to decide whether the respondent was entitled to wasted costs and, if so, the appropriate amount.

The court found that the appellant's failure to comply with the Court's timetable directions without explanation was sufficiently serious to justify an award of indemnity costs for the wasted preparation. The court reasoned that the appellant's actions resulted in the appeal hearing being adjourned for fairness reasons. The court considered that indemnity costs were appropriate because the appellant's behaviour was flagrant, warranting such a penalty. The court also determined that the costs claimed by the respondent for preparation for the adjourned hearing were reasonable.

The court ordered that the appellant pay the respondent costs in the sum of $2,306.00 within 10 working days. This included $956 for the 17 June memorandum and $1,350 (rounded down) for the 1 July conference and wasted hearing preparation costs.

Orders