Wallace Corporation Limited v Waikato Regional Council [2011] NZCA 350 (27 July 2011)

Last Updated: 2 August 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA94/2010 [2011] NZCA 350

BETWEEN WALLACE CORPORATION LIMITED Appellant

AND WAIKATO REGIONAL COUNCIL Respondent

CA95/2010

AND BETWEEN NEVILLE KEITH CROSS Appellant

AND WAIKATO REGIONAL COUNCIL Respondent

CA96/2010

AND BETWEEN BARRY JAMES DEW Appellant

AND WAIKATO REGIONAL COUNCIL Respondent

CA819/2009

AND BETWEEN CAROL MARGARET DOWN Appellant

AND THE QUEEN Respondent

Court: Arnold, Harrison and Stevens JJ

Counsel: L Dunn for Waikato Regional Council M E Casey QC for Appellants in CA94/2010, CA95/2010 and CA96/2010 A D Banbrook for Appellant in CA819/2009 M D Downs and B J Horsley for Respondent C P Browne and M R Harborow for Interveners URS NZ Ltd in CA94/2010

Judgment: 27 July 2011 at 2.30 pm

JUDGMENT OF THE COURT

There is no award as to costs.

REASONS OF THE COURT
(Given by Arnold J)

[1] At the conclusion of our judgment dated 31 March 2011, we left open the question of costs. We observed that costs normally follow the event, but said that the position was complicated by the number of proceedings and parties. Furthermore, we invited counsel to consider whether and to what extent the Costs in Criminal Cases Act 1967 (the Act) might apply.
[2] Counsel for the Waikato Regional Council (the Council), for the appellants in CA94/2010, CA 95/2010 and CA96/2010 (the appellants), for the intervener, URS New Zealand Ltd, and for the Crown have filed memoranda. All counsel agree that the position is governed by the Act. Beyond that:

(a) The Crown has advised that it does not seek an order for costs against Ms Downs.

(b) The Council has advised that it seeks an order for costs. It is a little unclear against whom the order is sought but it seems to be the appellants, as well as Ms Downs and URS on the basis that they were both interveners. In fact, Ms Downs was not an intervener but an appellant in a separate appeal which was heard at the same time as the appeals to which the Council was a party. As the Crown does not seek an award against her, we need not address her position further. The Council seeks an award above scale, on the basis that the appeal was complex, important and involved special difficulty.[1] The amount suggested is $20,024.

(c) The appellants accept that costs should follow the event and that there is a case for an award above the scale. They appear to accept that an award not exceeding $7,520 could be made.

(d) URS opposes any order for costs against it, but says that if one is made, it should not exceed $1,000, bearing in mind that the scale amount is $452.

[3] We accept that the position is to be assessed under the Act. There is no presumption for or against the granting of costs in criminal cases. In particular, an order for costs is not made simply because an appeal has succeeded. Rather, an applicant for costs under the Act must show that there are good grounds supporting an award in its favour.[2] If a vexatious or frivolous point is raised in an appeal, all or some of the costs involved in addressing that point may be recovered from the person raising it irrespective of the overall result in the appeal.[3] Where an appeal involves a difficult or important point of law, an order can be made irrespective of outcome of the appeal.[4] As a consequence, unsuccessful parties have been awarded costs under the Act.[5]
[4] The Council argued that it should be awarded costs for the following reasons:

(a) The appeal involved a novel and difficult aspect of the law which required lengthy and detailed submissions.

(b) The issues on the appeal were significant not only for the Council but for all councils and, indeed, for all those who prosecute under the Summary Proceedings Act 1957.

(c) The involvement of URS and Ms Down increased the complexity of the appeal.

[5] We accept that the appeal involved a novel and difficult aspect of the law and that there was considerable benefit to those who are able to prosecute by means of the infringement notice procedure to have the law clarified. We note, however, that such considerations have in the past resulted in awards against the successful prosecuting authority and in favour of the unsuccessful appellant/respondent.[6] In such cases the appeal clarifies the law for the broader public benefit and the award to the unsuccessful individual recognises that. Moreover, this is not a case where the appellants have raised vexatious or frivolous points. Accordingly, we do not accept that the Council has made out a case for an award of costs against the appellants.
[6] As to the involvement of URS as an intervener, it had a legitimate interest in the outcome of the appeal. Its presence at the appeal did not add materially to the length of the appeal, or to the extent of the preparation required of the Council, as the submissions of the appellants and URS were complementary rather than repetitive. Again, URS did not raise vexatious or frivolous points.
[7] In the result, then, we consider that, in terms of the Act, costs should lie where they fall. Accordingly, we make no order as to costs.

Solicitors:
Holmes Dangen & Assoc, Auckland for Appellant in CA819/2009
Nielsen Law, Hamilton for Appellants in CA94/2010, CA95/2010, CA96/2010
Crown Law Office, Wellington for Respondent in CA819/2009

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[1] Costs in Criminal Cases Act 1967, 13(3).
[2] R v Rust [1998] 3 NZLR 159 (CA) at 162–163.
[3] Section 8(5).
[4] Section 8(6).

[5] See for example Simpson v Police [1971] NZLR 393 (CA) at 397–398 and Collector of Customs v Athfield [1979] 2 NZLR 272 (CA) at 276.
[6] Ibid.