Peters v Television New Zealand [2005] NZCA 262; (2005) 18 PRNZ 149 (2 November 2005)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

Peters v Television New Zealand [2005] NZCA 262 (2 November 2005); (2005) 18 PRNZ 149

Last Updated: 19 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA247/04

BETWEEN WINSTON RAYMOND PETERS
Appellant

AND TELEVISION NEW ZEALAND
First Respondent

AND RADIO NEW ZEALAND
Second Respondent

AND YVONNE TERESA DOSSETTER
Third Respondent

AND DAVID CARTER
Fourth Respondent

AND KENNETH SHIRLEY
Fifth Respondent

Court: Hammond, Chambers and Panckhurst JJ

Counsel: B P Henry for Appellant

C A McVeigh QC for Fourth Respondent

Judgment (On the papers): 2 November 2005

JUDGMENT OF THE COURT

The fourth respondent will have costs against the appellant in the sum of $3,000 and usual disbursements, on the abandoned appeal.

REASONS

(Given by Hammond J)

Introduction

[1] Mr Peters, a Member of Parliament, issued this proceeding against the five respondents, alleging that they each defamed him.
[2] The fourth respondent, Mr David Carter, is a fellow Member of Parliament.
[3] Mr Carter applied to strike out Mr Peters’ causes of action against him.
[4] On 5 November 2004 Paterson J found in favour of Mr Carter on that application. Mr Carter was also awarded costs on a category 2B basis, together with his disbursements to be fixed, if necessary, by the Registrar.
[5] Paterson J indicated that, “this, however, may not be the end of the matter” because in the course of the hearing before him Mr Henry indicated that the pleadings might be amended. The proceeding had arisen out of certain comments said to have been made by Mr Carter in relation to an inquiry into the scampi industry, impugning Mr Peters’ integrity. Paterson J noted that while there is a distinction between an imputation of guilt and an imputation of suspicion of guilt, both are actionable. As the Judge noted, statements imputing suspicion that a person may have committed an offence are capable of being defamatory:

... I can see no objection to [this] matter being re-pleaded on the basis that the statements conveyed the meaning that there was a suspicion that Mr Peters had been a party to serious misconduct, and was in contempt of Court, and that in the circumstances such statements were in themselves defamatory. There could be a similar pleading in respect of the [subsequent] inquiry. (At [37].)

Mr Peters appeals

[6] On 22 November 2004 Mr Peters filed an appeal in this Court against that judgment.
[7] That appeal was set down for hearing on 11 October 2005, before this panel.
[8] A Notice of Abandonment of the appeal, in proper form, was filed on 28 September 2005. The appeal was then, in accordance with the practice of this Court, marked up as having been “abandoned”.

But costs remain in issue

[9] Rule 44 of the Court of Appeal (Civil) Rules 2005 provides for the process we have noted in [8]. But r 44(3) provides that “[t]he abandonment of an appeal does not affect the power of the Court to make any order as to costs in respect of the appeal”.
[10] Counsel endeavoured to resolve the costs issues between the parties, but were not able to do so. On 7 October 2005 the Court was advised that there were outstanding issues as to costs. The Court directed that counsel should file memoranda in the usual way, and that the Court would then resolve the costs issues which had been raised on the papers, to avoid the costs to the parties of a further hearing.

The respective positions of the parties

For Mr Carter MP

[11] Mr McVeigh QC submits that full indemnity costs and disbursements should be awarded to Mr Carter, in the following sums:

Counsel

Costs: $8,000.00

GST: $1,000.00

Disbursements: $128.03 (Research/photocopying/fax/toll charges).

Solicitors

Costs: $2,200.00

GST: $275.00

Disbursements: $30.25 (Photocopying/postage/fax/toll charges).

Total = $11,633.28.

[12] After traversing the various steps that had been taken on behalf of Mr Carter following on the delivery of Paterson J’s judgment, Mr McVeigh made the following submissions:

(a) The time and effort spent on this matter [has been] actual and reasonable.

(b) At no time until 20 September this year was [Mr Carter] given any indication that this appeal was not proceeding. Indeed having regard to [the history] referred to above, all indications were to the contrary.

(c) The judgment of Paterson J that was under appeal was on a relatively straightforward application on an uncontroversial area of the law of defamation. The late notice of abandonment of the appeal indicates (it is submitted):

(i) The appeal was devoid of merit.

(ii) A cavalier attitude towards the court and the parties as to the likelihood of any progress with the appeal.

For Mr Peters MP

[13] Mr Henry did not resist an award of costs, as such. He did however submit that an award of indemnity costs “is simply not appropriate”; in any event, he said the quantum of costs sought on Mr Carter’s behalf “is unreasonable”.
[14] Mr Henry submitted that “costs should be awarded on the normal basis in that it is accepted that a small award of costs follows the event of the appeal being abandoned”. He said that “when preparing the appeal it became apparent there was a way to re-plead the original action which achieved the objectives the appellant wished, the election was made not to further waste the Court’s time ... it is inappropriate when a responsible decision is made to abandon an appeal that the Court look to the granting of indemnity costs”.

The law

[15] Rule 53 of the Court of Appeal (Civil) Rules 2005 (so far as it is applicable to this instance) reads as follows:

53 Costs and disbursements

(1) The Court may, in its discretion, make any orders that seem just concerning the whole or any part of the costs and disbursements of -

(a) An appeal; ...

...

(4) If the Court orders a party to pay another party (party B) usual disbursements, the order -

(a) Encompasses -

(i) party B’s disbursements as defined in r 48H(1) of the High Court Rules; ...

(italics added).

[16] Rule 48H of the High Court rules defines “disbursement” as meaning:

... an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from professional services in a solicitor’s bill of costs ... .

[17] Costs normally follow the event. But undoubtedly - and this is not in issue - this Court has a discretion as to the costs and disbursements of an appeal, which could include allowing full solicitor and client costs. That discretion is a wide one, although the discretion must be exercised judicially. What is in issue in this instance is therefore: when, if at all, is it appropriate to award indemnity by way of the entire costs of a successful party?
[18] Mr McVeigh is correct that there have been cases in which this Court has awarded indemnity costs on an appeal. He referred to Bonz Group (Pty) Ltd & Anor v Cooke [2000] NZCA 44; (2000) 9 TCLR 374 as an example of a case where this Court awarded indemnity costs to a successful respondent. In that case there was a full hearing. This Court indicated to counsel during argument that the appeal appeared to be meritless and that the appellant might be expected to meet costs in the Court of Appeal on a solicitor/client basis. Ultimately the successful party was awarded indemnity costs. For present purposes, the case is no more than an illustration of the principle that, in an appropriate case, indemnity costs can be awarded.
[19] At the level of first principle, it has always been the case that indemnity costs may be ordered in relation to “misconduct” in a proceeding. The improper and abusive conduct of a proceeding of any character may give rise to indemnity costs. A good example is Craig v Railtrack plc [2002] EWHC 168 (QB) where a firm of solicitors not only gave unreliable evidence, but also launched an unwarranted attack on the integrity of a former client. When indemnity costs are awarded on this basis, there is a distinct connotation of disapproval by the Court as to what has occurred, and the costs order is of a “penal” nature (see Kiam v MGN Ltd (No 2) [2002] 2 All ER 242, 246).
[20] That said, indemnity costs are not restricted to misconduct deserving of moral condemnation, but can extend to “unreasonable” conduct in relation to litigation. Such “unreasonableness” however must be of a high order - not just something which is wrong or misguided in hindsight (see Simon Brown LJ in Kiam v MGN Ltd (No 2) above, at [12]).
[21] It follows from these propositions that the focus of a judicial inquiry should not be on whether the successful party, or his lawyers, “deserve” a higher reward than the norm; the critical issue is whether the conduct of the paying party, or his or her lawyers, justifies an award of indemnity costs.
[22] These are general principles of our civil law, and there is no reason why they should not apply in the more restricted theatre of civil appeals.

This case

[23] In this case, Mr McVeigh’s argument is essentially that the appeal was devoid of merit, and that Mr Peters had adopted a somewhat cavalier attitude towards the appeal.
[24] It is surprising that, given the helpful indications from the High Court Judge, the pleadings were not amended earlier. As it was, Mr Carter was put in the position that - his counsel properly anticipating that he would have to be ready to proceed in time for the allocated hearing date - the expense of preparing submissions which were not then needed was incurred. It is easy to appreciate the concern on Mr Carter’s part that those costs have been unnecessarily thrown away. Then too, the abandonment came late in the piece. It has to be said that this had implications not just for the parties, but for the Court itself. Other work then had to be brought forward, with some administrative inconvenience to the Court and the Registry, to ensure judicial sitting time was not lost.
[25] That said, we cannot say that this unfortunate instance rises to the level of misconduct or unreasonableness which could appropriately give rise to indemnity costs.
[26] We consider the justice of this case is met by allowing Mr Carter the costs which would usually have been awarded following the actual hearing of an appeal of this kind - $3,000 - plus his usual disbursements on the appeal. This recognises the distinctly late abandonment of the appeal.

Solicitors:
D J Gates, Whangaparaoa for Appellant
Cavell Leitch Pringle & Boyle, Christchurch for Fourth Respondent