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Court of Appeal of New Zealand |
Last Updated: 30 November 2011
IN THE COURT OF APPEAL OF NEW ZEALAND
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CA87/99
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BETWEEN
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DAVID FRANCIS PARRIS
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Appellant
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AND
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TELEVISION NEW ZEALAND LIMITED
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First Respondent
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AND
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SEAN PLUNKET
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Second Respondent
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Hearing:
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21 October 1999
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Coram:
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Keith J
Blanchard J Baragwanath J |
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Appearances:
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C A McVeigh QC for the Appellant
M F McClelland for the Respondents |
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Judgment:
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21 October 1999
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JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH
J
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[1] The appellant (Mr Parris) brought proceedings against the defendants Television New Zealand Limited and Mr Plunket (together TVNZ) alleging defamation in a television programme broadcast by TVNZ.
[2] TVNZ pleaded justification.
[3] At the hearing, which commenced on 21 March 1999, Mr Parris was the first witness called in support of his claim. Just after midday on 22 March, following something over a day of close cross-examination by leading counsel for TVNZ, Mr Parris elected to be non-suited.
[4] On 24 March Hansen J heard argument on TVNZ’s costs application and delivered oral judgment which concluded in the following terms:
The plaintiff elected to be non-suited at an early stage. The difficulties confronting his case must have been self evident from documentation available to him, or, more particularly, his own lack of documentation.
In this case I think it is appropriate that there been an award of a percentage of reasonable solicitor and client costs for preparation and trial, interlocutories already having been dealt within the decisions of the Master.
In the circumstances of this case, I think it proper that any percentage be on the high side of those mentioned by McGechan [on Procedure] in 46.05(4).
Accordingly, there will be an order that the first and second defendants are entitled to 80% of their reasonable solicitor and client costs. If the parties are unable to agree reasonable solicitor and client costs memorandum can be filed, which should be supported in full by necessary bills, hours etc. From the plaintiff’s point of view, I repeat my comment earlier, in the course of submissions, that the actual costs faced by the plaintiff will be a telling factor to the Court, and that information would also be useful. However, one would hope that the parties can resolve this issue between them.
[5] On 11 August 1999 the following order was sealed:
ORDER FOR COSTS
BEFORE THE HONOURABLE JUSTICE HANSEN
Tuesday, the 23rd day of March 1999.
UPON hearing Mr McVeigh, QC of counsel on behalf of the Plaintiff and Mr Camp QC of counsel on behalf of the First and Second Defendants this Court orders that the First and Second Defendants shall have 80% (eight percent) of their reasonable solicitor and client costs.
SEALED BY THE COURT
Signed G J Withers, Deputy Registrar
SEALED this 11 day of August 1999
[6] Mr Parris has given notice of appeal
From that part of the judgment that dealt with costs on a judgment of non-suit in the High Court of New Zealand at Christchurch delivered by The Honourable Justice Hansen on the 23rd of March 1999 in which the abovenamed Appellant was Plaintiff and the abovenamed Respondents were Defendants UPON THE GROUNDS that that part of the judgment that dealt with costs is erroneous in fact and in law.
His points on appeal are
1. THAT the Learned Judge in the High Court, in exercising his discretion to award costs to the defendants, erred as a matter of principle in that he awarded the defendants a percentage of their reasonable costs without knowing what those reasonable costs were.
2. THAT the judgment of the Learned Judge was plainly wrong.
[7] TVNZ apply to strike out the appeal upon the grounds that
- The oral costs judgment of Hansen J dated 24 March 1999 is not a final determination of the respondents’ application for costs and is not a judgment, decree or order in terms of section 66 of the Judicature Act 1908; and
- The Court of Appeal has no jurisdiction to hear the proposed appeal.
[8] Section 66 of the Judicature Act provides
COURT MAY HEAR APPEALS FROM JUDGMENTS AND ORDERS OF THE HIGH COURT —
The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of [the High Court], subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.
[9] In a series of cases considering its application this Court has been called on to determine what is claimed to be a “judgment, decree or order” not simply in a dictionary sense but within the meaning of s66. See Re Alwinco [1985] 1 NZLR 710; Murphy v Murphy [1989] 1 NZLR 204; Seamar Holdings Ltd v Kupe Group Ltd [1995] 2 NZLR 274 and Association of Dispensing Opticians v Opticians Board (CA 164/99, 9 September 1999).
[10] As those cases show, statutory interpretation is more than a matter of mechanical application of a verbal formula to the facts before the court. It is a commonplace of adjudication that as well as those facts which fall neatly on one side or other of a statutory formula there will be others as to which the court must make a judgment of characterisation to determine on which side they should fall.
[11] The exercise begins with the language used by Parliament in enacting the particular measure and consideration of the facts in its light. Where that yields no clear answer the court will have recourse to well settled techniques of statutory interpretation. Their purpose is to determine what result best squares with the policy of the measure insofar as that can be deduced from any pointers provided by Parliament, including the specific measure, the Interpretation Act 1999, and if necessary analogous legislation and the presumptions of the common law. With their aid the court’s function is to make a practical judgment as to how the classification is to be made.
[12] Here, while the High Court has expressed its conclusions at the end of argument as a “judgment”, advising the formula which it proposes to adopt in fixing costs, it has not determined what those costs are. TVNZ cannot enforce any order; Mr Parris is not bound to do anything at all. Only after the next stage when costs are actually fixed will there be an order against which an appeal will lie. It would be open to the Judge to revisit the 80% assessment if that seemed desirable.
[13] We allow TVNZ’s application and strike out the purported appeal. The respondents, TVNZ, are entitled to costs, which are fixed at $2,000 together with reasonable disbursements, including travel and accommodation expenses as fixed by the Registrar if the parties cannot agree.
Solicitors:
Trainor MacLean, Christchurch for the
Appellant
Kensington Swan, Wellington for the Respondents
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URL: http://www.nzlii.org/nz/cases/NZCA/1999/244.html