Woolley v Fonterra Co-Operative Group Limited
[2021] NZHC 3588
•21 December 2021
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2018-406-14
[2021] NZHC 3588
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 and for Defendant
Judgment:
21 December 2021
JUDGMENT OF ISAC J
[Costs]
Introduction
[1] In my judgment of 8 October 2021, I dismissed Mr Woolley’s claim against the defendant, Fonterra.1 At the conclusion of the judgment I said this:2
Given the result, I would be inclined to award costs to Fonterra on a 2B basis and certify for second counsel. I invite the parties to resolve costs between themselves. If they are unable to do so, Fonterra should file a memorandum not exceeding 10 pages (excluding any schedules) within 15 working days. Mr Woolley may reply 15 working days thereafter. I will then determine costs on the papers.
[2] The parties have been unable to agree on some aspects of the costs to be awarded.
1 Woolley v Fonterra Co-Operative Group Ltd [2021] NZHC 2690.
2 At [514].
WOOLLEY v FONTERRA CO-OPERATIVE GROUP LIMITED [2021] NZHC 3588 [21 December 2021]
[3]Mr Woolley argues costs ought not be granted on the following items:
(a)an application for non-party discovery;
(b)inspection of non-party documents and supplementary list;
(c)the defendant’s claim that the hearing occupied 10 days; and
(d)some of the defendant’s claimed disbursements.
Discussion
[4] All matters relating to costs are of course discretionary,3 but the discretion must be exercised on a principled basis. The determination of costs should also, so far as possible, be both predictable and expeditious.4 And the party who fails with respect to a proceeding should generally pay costs to the party who succeeds.5
Non-party discovery
[5] Fonterra has claimed costs (0.6 days) for the time involved in filing an interlocutory application for non-party discovery against the Marlborough District Council (MDC) and Opus International Consultants Limited (OPUS). Mr Morten on behalf of Mr Woolley says that because there was no determination of this application
— it being resolved informally — Fonterra is not entitled to costs.
[6] The fact the non-parties agreed to informal arrangements after the application was served on them does not necessarily mean the cost of the application is not claimable. But more importantly, I agree with Fonterra’s submission that obtaining the non-party discovery was clearly necessary given the nature of the claim. Documents from both MDC and Opus were relevant, indeed fundamental, to the Court’s decision.
3 High Court Rules, r 14.1.
4 Rule 14.2(1)(g).
5 Rule 14.2(1)(a).
[7] Fonterra’s costs for this item are allowed, together with the associated disbursements that I find were reasonable (such as travelling to inspect the documents).
Inspection of non-party documents and supplementary list
[8] In all, Fonterra has claimed three days for inspection of documents from Opus and MDC, as well as three days for inspection of the plaintiff’s documents (which is accepted by Mr Woolley) and the supplementary list.
[9] Mr Woolley contends Fonterra should only be granted three days for document inspection.
[10] Fonterra has claimed the time allocation provided in the Rules, and I see no reason why Fonterra is not entitled to those costs. The non-parties handed over a not insignificant number of documents to Fonterra, and in relation to the plaintiff’s supplementary list — containing hundreds more documents that were only made available after the plaintiff’s briefs of evidence referred to them — I accept that it was reasonable, indeed crucial, for Fonterra to inspect the additional discovery and to claim the costs of doing so.
[11]Fonterra’s claimed costs for this is allowed.
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.
Disbursements
[15]Mr Woolley has disputed many of the claimed disbursements, including:
(a)witnesses’ allowances;
(b)non-party discovery (relating to MDC);
(c)LawFlow (electronic discovery)
(d)instructing out of town counsel or solicitors (Ms Shaw);
(e)Harkness Henry’s accommodation meals and taxis;
(f)other accommodation and incidental costs (mostly for Fonterra staff).
[16] So long as a disbursement meets the r 14.12(1) definition it is recoverable to the extent it was “reasonably necessary” and “reasonable in amount”.
[17] I do not see any issue with the disbursements claimed here. Witnesses’ expenses are a disbursement, although they do need to be approved by the Court. The test remains whether the witnesses’ expenses and fees were necessarily incurred and are reasonable — or whether the r 14.12(2) and (3) criteria are met — and I find they were here, and were in line with the Witness Interpreters Fees Regulations 1974. The witnesses were required to attend the first and subsequent hearing days until discharged, and the party issuing a summons cannot predict, as Mr Woolley’s approach would dictate, which specific days and for how long they will be required in calculating the pre-paid costs. The relevant witnesses were entitled to monitor the trial and help deal with any evidential or other issues as they arose.
[18] Mr Woolley’s objections to the other disbursements are without merit. While the assessment is always case-dependent,6 given the value and significance of the
6 See Buis v Accident Compensation Corporation (2010) 19 PRNZ 585 (HC) at [25].
claim to the defendant there can be no complaint that it used its preferred solicitors and out-of-town counsel. Equally, it was reasonable for Fonterra to have used the Lawflow discovery programme, given the number of documents in the electronic bundle.
[19] To the extent Mr Morten has identified other issues with the claimed disbursements, such as claiming for beverages (which are not allowed if alcoholic)7, or some not being supported by invoices or evidence of who was there, I encourage the defendants to revise their claim or provide sufficient documentation and particularity. If the parties are unable to resolve disbursements, they will be fixed by the Registrar.
Reduction
[20] Mr Woolley also seeks a reduction in costs, pointing to Fonterra’s late disclosure of documents during the course of the trial and general discovery. This does not justify a reduction under any of the grounds in r 14.7, especially given the late disclosure issue related to the delegated authorities argument that lacked merit. I would add that neither party’s management of the documentary evidence was perfect.
Costs for responding to costs memorandum
[21] The plaintiff has responsibly accepted the defendant’s costs associated with this application.
Result
[22] The defendant is entitled to its costs and disbursements as claimed, subject to the (slight) revision required by this judgment.
7 See Houghton v Saunders [2015] NZHC 548 at [83].
[23] Any remaining disbursements (or issues associated with them) may be fixed by the Registrar.8
Isac J
Solicitors:
Wisheart Macnab & Partners, Blenheim for Plaintiff Harkness Henry, Hamilton for Defendant
8 High Court Rules 2016, r 14.12(4).
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