Woodroffe v Muaiava

[2024] NZHC 282

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001421

[2024] NZHC 282

BETWEEN

LEULUAIALI’I OLINDA WOODROFFE

Plaintiff

AND

TAFUNA’I MUAIAVA

First Defendant

FA’AMANU PENIATA
Second Defendant

SEU PENIATA
Third Defendant

Cont’d

On the papers

Counsel:

G M Illingworth KC for Plaintiff

S A Keall and M G Orange for Defendants

Judgment:

10 April 2024

JUDGMENT OF ANDERSON J

(Costs)

This judgment was delivered by me on 10 April 2024 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.

.…………………………..

Registrar/Deputy Registrar

Solicitors:    Woodroffe Lawyers, Auckland

Fortune Manning, Auckland

WOODROFFE v MUAIAVA [2024] NZHC 282 [10 April 2024]

TAELA MUAVAE MIKA

Fourth Defendant

GALUMALEMANA VENI MORISA
Fifth Defendant

CIV-2023-404-002098

BETWEEN

LEULUAIALI’I O WOODROFFE

Plaintiff

AND

CHRIS MUAIAVA

Defendant

Introduction

[1]                  In  a  minute  dated  23  February  2024,   I   ordered   that   the   plaintiff, Mrs Woodroffe, was entitled to wasted costs after the defendants withdrew their applications for summary judgment and variously recast interlocutory applications, in addition to having made various timetable breaches.1

[2]This judgment concerns the quantum of the wasted costs award.

The facts

[3]                  These proceedings relate to the Samoan Assemblies of God in New Zealand (the Fellowship). The plaintiff maintains she was defamed by the defendants who are in or involved with the Fellowship’s executive body. The plaintiff is a lawyer. She previously acted for the Fellowship.

[4]                  The plaintiff filed two related defamation  proceedings  on  21  June  2023 (the 1421 proceeding) and 12 September 2023 (the 2098 proceeding). The defendants subsequently applied to strike out / for summary judgment in both proceedings. A hearing was timetabled for 22 February 2024.

[5]                  The defendants intimated that the application in the 2098 proceeding would be filed on 6 November 2023. It was in fact filed on 2 February 2024, the same day the defendants filed an amended application to strike out / for summary judgment in the 1421 proceeding incorporating an application for leave to amend.

[6]                  On 22 February 2024, the defendants sought to proceed with the applications apart from the summary judgment aspect in both proceedings. The plaintiff maintained that there would be serious prejudice if the hearing proceeded. Moreover, the plaintiff submitted that the Court should not allow the applications to proceed at all on the basis that it would cause undue delay and that the timetable breaches were neither adequately explained nor justified. Defamation proceedings should be dealt with promptly.

1      Woodroffe v Muaiava HC Auckland CIV-2023-404-1421, CIV-2023-404-2098, 23 February 2024 (Minute of Anderson J), at [23]–[25].

[7]                  I adjourned the hearing. If the defendants were permitted to proceed with the 2 February 2024 applications as scheduled, which had a significantly altered focus to the October 2023 application, it would prejudice the plaintiff.

[8]                  I granted leave for the defendants to file an amended application  in  the  1421 proceeding and I allowed the application filed in the 2098 proceeding to be pursued. It was not in the interests of justice to foreclose the defendants making an application that, if successful, would dispose of both proceedings.2 The hearing was adjourned to 7 August 2024.

[9]I held that the plaintiff was entitled to wasted costs:3

Costs are not usually awarded on dismissal of a summary judgment application, nor its withdrawal. However, I apprehend from the papers that the summary judgment has been dropped as much for procedural defects as substantive reasons. There is also the complication that there was an extant application to amend the summary judgment application, which has associated cost. In the circumstances of this case, I consider costs are appropriate.

[10]              I ordered that the plaintiff was entitled to wasted costs on withdrawal of the defendants’ summary judgment application in the 1421 preceding and associated with the amended application and with timetable breaches.4

Law

[11]              Costs are discretionary.5 In exercising the discretion to award costs, the Court must have regard to the principles set out in r 14.2 of the High Court Rules 2016 (HCR). As directed in my minute, the plaintiff is entitled to costs. The basis for making an award of wasted costs is where the fault of one party leads to the hearing being adjourned to the detriment of others.6 In Burgess v Monk Heath J observed:7

The concept of “wasted costs” includes those [costs] incurred for work undertaken that will not have any further benefit to the case of the claimant party, as well as the value of work that will be duplicated in order to prepare for a trial in the future.

2      At [17(e)].

3      At [24] (footnotes omitted).

4      At [25(h)].

5      High Court Rules 2016, r 14.1(1).

6      Burgess v Monk [2015] NZHC 1881.

7 At [15].

[12]              The last-minute acts of one party leading to another’s time, preparation and legal expenses incurred going to waste justify an award of wasted costs.

Submissions

The plaintiff

[13]              The plaintiff seeks the following award of costs in accordance with sch 3 of the HCR.

(a)Filing opposition to interlocutory application (item 23):8

(i)In respect of the 1421 proceeding, band B costs of 0.6 days for preparing the notice of opposition to the October 2023 application for summary judgment.

(ii)Preparing separate notices of opposition to the February 2024 applications, band C costs of 2 days.9

(b)Preparation of written submissions (item 24):

(i)An allowance for preparing submissions on the summary judgment applications in  accordance  with  band  C,  namely  3 days. Band C costs are justified, the plaintiff submits, because counsel had to study the defendants’ submissions, various authorities and numerous documents; and because the summary judgment applications were withdrawn at the last minute, without prior notice, the submissions and accompanying bundle of authorities were a very significant waste of time.

8      The plaintiff sought costs for an application not opposition, but this is in error, so I have corrected this.

9 A time allocation of two days in band C is for one notice of opposition. However, in the way her narrative submission is expressed the plaintiff appeared to seek wasted costs in respect of notices of opposition filed in in both the 1421 proceeding and the 2098 proceeding. I address this at [30] below.

(c)Finally, the plaintiff seeks an allowance for preparing an affidavit in response to factual allegations made in support of the summary judgment application.   The plaintiff submits this should be fixed at    1 day. The affidavit was necessary to respond to serious factual allegations made in the submissions of counsel for the defendants.

[14]              The plaintiff submits that the appropriate daily recovery rate in sch 2 of the HCR is category 3 which is appropriate for proceedings, or relevant steps within a proceeding, which are complex or require counsel to have special skill and experience in the High Court.10 Mr Illingworth KC submits that the arguments raised by the defendants are “out of the ordinary, involve factual and legal complexity and are of high significance to the parties”.

[15]Accordingly, the costs sought for the summary judgment are:

Date	Item	Description	Time	Band	Amount
October 2023	23	Filing opposition to interlocutory application	0.6	B	$2,118
February 2024	23	Filing opposition to interlocutory applications	2	C	$7,060
February 2024	24	Preparation of written submissions	3	C	$10,590
February 2024	Preparation of affidavit in reply to submissions	1	$3,530
Total scale costs	$23,298

[16]              In respect of wasted costs for the recast applications and late submissions, the plaintiff submits that an additional allowance of two days or an uplift of 30 per cent should be applied to the award of costs for the withdrawn summary judgment application. This award would reflect the additional work required to update the defence to the recast interlocutory applications. The plaintiff maintains the February applications for both proceedings are now principally focused on the ground that the plaintiff’s claim is an abuse of process. The further award would also account for the

10     High Court Rules 2016, r 14.3.

late application for an extension of time for submissions which required a memorandum in response.

[17]              Total scale costs and a further award of two days on a category 3 basis would amount to costs in the sum of $30,358.

The defendants

[18]              In detailed submissions, the defendants submit that the appropriate daily recovery rate is provided by category 2; that the plaintiff wrongly classified various steps involved in calculating costs as being in band C; and that it is appropriate to discount any award of wasted costs on the basis that preparation undertaken for the February interlocutory hearing will provide some use in advance of the scheduled August hearing. In the defendants’ submission, the appropriate award of costs is

$2,808.25.

[19]              First, the defendants maintain the interlocutory application should not be categorised as category 3. The defendants say that the plaintiff’s submission that the arguments raised were out of the ordinary and particularly complex were offered without any developed reasons. The defendants maintain that there is no relevant basis to draw a distinction between the categorisation for the entire proceeding, which should be considered category 2, and an interlocutory hearing. The proceedings are of average complexity and involve determining issues common in defamation claims. Experienced counsel with specialist skills were not required. Moreover, interlocutory applications are not in general complex. Further, the defendants submit that the amended interlocutory application does not in itself justify the conclusion that the proceedings are more complex. Accordingly, the proceedings are of average complexity and should be appropriately categorised as category 2.

[20]              Second, the defendants submit that there should be no award of costs associated with the notices of opposition for the February application. In the defendants’ submission, the notices of opposition in response to the February applications remain relevant for the August hearing and do not require amendment for the strike out application. The basis of the strike out application which the defendants continue to pursue was the same as the grounds for the summary judgment application,

namely an argument on the basis of abuse of process, and the orders sought are the same.

[21]              Finally, the defendants (in an overlapping point) submit that it is appropriate for the Court to take into account the fact that some of the work completed by the plaintiff will have a continuing value in the proceedings. Counsel referred to two decisions. The first decision, Burgess v Monk,11 concerned an application by the plaintiff to adjourn a three-week trial made shortly before the trial was due to begin. Heath J made an award for wasted costs. His Honour fixed costs on a 2B basis which amounted to $26,704.50. The Court then made a global award of $16,000 to reflect the fact that some of the work undertaken would be useful and relevant to a future trial.12

[22]              In the second case, Jeffreys v Morgenstern,13 the plaintiff applied for wasted costs where the trial was abandoned after the defendant served relevant documents late. The Court rejected the defendants’ submission that the application should be deferred to follow the outcome of the substantive fixture. Venning J considered an allowance of 50 per cent of costs to be appropriate in the circumstances.14

[23]              The defendants submit that a 50 per cent discount should be applied to reflect the fact that the material developed will continue to have use in advance of, and for, the August hearing. A global award is appropriate to account for the fact that not all of the plaintiff’s legal efforts have gone to waste.

[24]              The defendants accordingly submitted the appropriate award of costs should account for:

(a)filing opposition to the interlocutory application in October 2023 (item 23);

(b)preparation of written submissions (item 24); and

11     Burgess v Monk, above n 6.

12 At [19].

13     Jeffreys v Morgenstern [2013] NZHC 1361.

14 At [37].

(c)the hearing on 22 February 2024 which took place over one quarter of a day (0.25) (item 26).

[25]              The appropriate total award on a 2B basis should be $5,616.50 discounted by 50 per cent is $2,808.25.

Discussion

[26]              First, I do not consider that the daily rate should be on a category 3 classification. The matters to be resolved at the interlocutory hearing were routine and did not justify a higher award due to elevated complexity. There were no complex factual issues that required determination at the interlocutory stage, nor did the proceedings require specialist counsel. Category 2 costs cover the lion’s share of all proceedings and are appropriate in this case, which, notwithstanding its importance and significance to the parties, is nevertheless not sufficiently complex to warrant a higher categorisation.

[27]              Further, band B costs are appropriate for all steps in the proceeding. Rule 14.5 of the HCR provides band B is appropriate “if a normal amount of time is considered reasonable” whereas band C is appropriate “if a comparatively large amount of time for the particular step is considered reasonable”. I am satisfied that band B costs appropriately reflect the amount of time required to meet each step undertaken by the plaintiff.

[28]              Second, I am unpersuaded by the defendants’ submission that there is no justification for a costs order in respect of the February notices of opposition. Notwithstanding that the notices of opposition and submissions may provide some relevance to future proceedings, the actions of the defendants led to wasted time, effort and resources. It is appropriate that costs reflect that fact. Venning J observed in Jeffreys v Morgenstern that the “Court should apply sanctions to parties who, through their own default, cause fixtures to be vacated”.15

15 At [32].

[29]              Third, I do not consider that the plaintiff is entitled to an additional award beyond the preparation of an affidavit, new notices of opposition and submissions to reflect the lateness of the applications by the defendants. Wasted costs are in part a punishment, but an additional award to sanction the lateness of the application, and other matters, is not appropriate.

[30]              Fourth, the plaintiff sought an award of costs for “preparing the separate notices of opposition” and “preparing submissions in relation to the summary judgment applications”. The notices of opposition were substantially the same, and the submissions in respect of both proceedings were combined. Accordingly, for all intents and purposes, only one notice of opposition was prepared. This is reflected in the award of costs, which, consistent with the order in my minute, is in respect of the 1421 proceeding.

[31]              Accordingly, subject to a global costs deduction discussed in the next paragraph, appropriate wasted costs are as follows:

Date	Item	Description	Time	Band	Amount
October 2023	23	Filing opposition to interlocutory application	0.6	B	$1,434
February 2024	23	Filing opposition to interlocutory application	0.6	B	$1,434
February 2024	24	Preparation of written submissions	1.5	B	$3,583
February 2024	Preparation of affidavit	1	$2,390
Total scale costs	$8,841

[32]              Finally, I consider it is appropriate, in light of the defendants’ continuing applications for an interlocutory strike out of the plaintiff’s claim that rests on similar grounds to the summary judgment applications, to make a global deduction to reflect the fact that some of the work for the adjourned hearing will continue to provide value for the next fixture in August. I reduce the amount by 25 per cent.

Result

[33]              An award of costs is made in favour of the plaintiff in the sum of $6,630 to reflect wasted costs caused by the defendants.

Anderson J