Woolley v Fonterra Co-Operative Group Limited

[2022] NZHC 1140

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2018-406-14

[2022] NZHC 1140

BETWEEN

PHILIP JOHN WOOLLEY

Plaintiff

AND

FONTERRA CO-OPERATIVE GROUP LIMITED

Defendant

Hearing:

On the Papers

Counsel:

P A Morten and M A Robertson for Plaintiff

J Anderson QC, M D Branch and K F Shaw for Defendant

Judgment:

23 May 2022

JUDGMENT OF ISAC J

[Recall application]

Introduction

[1]                  I determined costs between the parties in a judgment of 21 December 2021.1 The following day Mr Woolley filed an application for recall. The defendant, Fonterra, replied a day later with a memorandum in opposition. Unfortunately the application was not referred to me for consideration until 13 May 2022. I regret the delay and any inconvenience caused to the parties.

[2]                  Mr Woolley argues the costs judgment did not determine the time allocation for counsel appearances at trial as required by Schedule 3 of the High Court Rules, emphasising that the allocation must be calculated by “the time occupied by the hearing measured in quarter days”.2

1      Woolley v Fonterra Co-Operative Group Limited [2021] NZHC 3588.

2      High Court Rules 2016, sch 3 items 34 and 35.

WOOLLEY v FONTERRA CO-OPERATIVE GROUP LIMITED [2022] NZHC 1140 [23 May 2022]

The issue

[3]                  Schedule 3 of the Rules sets out the time allocations for costs recovery relating to preparation of briefs of evidence, for the hearing itself, and counsel appearances at trial. It is in these terms:

Item	Description	Allocated days
Preparing for witness hearing	(calculated by length of hearing)
33	Preparation of briefs, list of issues, authorities, and agreeing common bundle	All bands: 1 per day for first to fifth hearing days: 0.75 per day from sixth to tenth hearing days: 0.5 per day from then on
33B	Preparation for hearing	All bands: 1 per day for first to fifth hearing days: 0.75 per day for sixth to tenth hearing days: 0.5 per day from then on
Appearances at affidavit hearing or witness hearing and other steps
34	Appearance at hearing for sole or principal counsel	The time occupied by the hearing measured in quarter days
35	Second and subsequent counsel if allowed by court	50% of allowance for appearance for principal counsel

[4]                  To state the obvious, costs recoverable under each of steps 33, 33B, 34 and 35 are calculated by reference to the duration of the hearing.

[5]                  Mr Woolley says the costs judgment determined there were 10 hearing days for the purpose of steps 33 and 33B — preparation of briefs and for trial — but did not address the plaintiff’s submissions on the allocation for counsel appearances under steps 34 and 35. Mr Woolley reiterates his previous submission that the hearing did not in fact occupy a full 10 days. On two days the Court adjourned early and as a result the total claim for steps 34 and 35 must be limited to 8.75 hearing days.

[6]                  In response, Fonterra submits this Court found that “Fonterra is entitled to costs for 10 hearing days” and that a “scientific breakdown of just how long the Court was sitting each day is not required”. Therefore, Mr Woolley’s reliance on the reference to “quarter days” in Schedule 3 of the Rules is misplaced. The Court’s finding effectively determined that  the time occupied by the  hearing  — for costs purposes  — was    40 quarter days.

Decision

[7]Rule 11.9 of the High Court Rules provides:

11.9 Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed

[8]                  The principles governing recall are well settled. The discretion must be exercised with circumspection and is not a substitute for appeal,3 or an opportunity to re-open substantive matters already decided.4 There are three categories of case in which an unperfected judgment may be recalled. 5 The category relevant to this case is where the Court has failed to determine an issue that was properly put to it,6 or has overlooked a matter.7

[9]                  The costs judgment dealt with the time allocations based on the duration of the hearing in these terms:

Hearing time

[12]      Mr Woolley contends that Fonterra is only entitled to costs on the basis of nine hearing days, not 10. He points to the fact that the Court only sat for a half day on day eight (due to the unavailability of a witness) and a quarter of a day on day nine (beginning at 10 am and adjourning at 11.25 am).

[13]      However, the fact remains the trial was set down for 10 hearing days and it took just that. Submissions were delivered right up until 5 pm on the final day. While there were periods where the Court adjourned early for the day or started later, that is natural in trials of this sort. A scientific break down of just how long the Court was sitting each day is not required.

[14]Fonterra is entitled to costs for 10 hearing days.

3      Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC), approved in Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [5].

4      Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [11].

5      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; applied in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

6      Brake v Boote (1991) 4 PRNZ 86 (HC).

7      Matua Finance Ltd v Bank of New Zealand HC Auckland CP490/04, 4 August 1995.

[10]               In dealing with the issue in this way, I determined Mr Woolley was liable to pay costs for those steps on the basis the trial took 10 days. I made no distinction between steps 33 and 33B, or steps 34 and 35. They were dealt with globally.8

[11]               It follows that, rightly or wrongly, the costs judgment dealt with all the issues the parties asked the Court to address, and there is no reason to recall the judgment.

[12]               Mr Woolley’s application is dismissed. I did not understand Fonterra to seek costs in relation to the application for recall. Costs are reserved accordingly, with leave to apply.

Isac J

Solicitors:

Wisheart Macnab & Partners, Blenheim for Plaintiff Harkness Henry, Hamilton for Defendant

8      I considered that a scientific break-down of the hearing time was best avoided. One reason for this was that some days, at my direction, the hearing commenced before 10 am, extending the normal sitting hours. In addition, apart from Mr Woolley’s evidence-in-chief the briefs of evidence were taken as read. Had this not occurred it is unlikely the trial would have been accommodated within the 10 days allocated.