ISRAEL V SEXTON& ORS HC HAM CIV 2006-419-1765 [2007] NZHC 866 (6 September 2007)

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
                                                                             CIV
2006-419-1765



               BETWEEN                          GORDON ISRAEL
                                                Plaintiff

               AND                              GRAEME MURRAY SEXTON,
                                                RUSSELL BIERRE,
MARK
                                                BUTTIMORE AND JOHN TREGIDGA
                                               
Defendants


Determination of costs on the papers

Judgment:      6 September 2007 at 4:00 pm


                              JUDGMENT
OF ASHER J
                                   [COSTS]




         This judgment was delivered by me on 6 September 2007 at 4:00
pm
                  pursuant to Rule 540(4) of the High Court Rules


                           ...............................................
                                 Registrar/Deputy Registrar


                           ...............................................
                                                Date




Solicitors:
G Israel, General Post Office, Waihi
Brookfields Lawyers, PO
Box 240 Auckland




ISRAEL V SEXTON& ORS HC HAM CIV 2006-419-1765 6 September 2007

Introduction


[1]    On 4 April 2007, Priestley
J struck out the plaintiff's claim seeking the
immediate freedom of Sally, a dog. The core issue in the proceedings was whether
the
Hauraki District Council ("the Council") was entitled to require the payment of
dog registration fees for Sally, and whether, when
the plaintiff had refused to pay
those fees, Sally could be impounded by persons associated with the Council (the
defendants).


[2]    The claim was initiated on 7 December 2006.             In his judgment dated
15 December 2006, Heath J dismissed the plaintiff's
application seeking habeas
corpus, an application for an Anton Piller order and an interim injunction to secure
Sally's release,
stating that Mr Israel's arguments had "no prospect of success".
Heath J observed in that judgment that he had put Mr Israel on notice
that an
unsuccessful argument might result in an order for costs in favour of the defendants.
Heath J ordered the plaintiff to pay
costs to the Council on a 2B basis.


[3]    Following Heath J's judgment, it seems that the plaintiff paid the registration
fee
and Sally was released.


[4]    The plaintiff on 19 December 2006 applied for leave to rehear the previously
dismissed interlocutory
application.     By Minute of 19 December 2006, Heath J
dismissed this application.


[5]    The plaintiff had in his statement of
claim sought damages of $12,000 a day
for each day that Sally had been held by the defendants.            The defendants on
26 January
2007 filed an application to strike out the plaintiff's claim, or for an order
for summary judgment in favour of the defendants.


[6]    Following a conference which the plaintiff did not attend, Priestley J issued a
Minute on 28 February 2007 noting that the
plaintiff had failed to file a proper
address for service. Priestley J also noted that the plaintiff's claim for damages was
fanciful
and that it hardly seemed likely that he would want to pursue the claim. He

made an order nisi that the claim was to be struck
out, which was to become
operative if the plaintiff failed within five working days of service of the Minute
upon him to file a memorandum
in the Court indicating that he wished to pursue the
damages claim. The plaintiff was also ordered to pay $1,000 by way of security
for
costs.


[7]      The plaintiff took no steps within the directed timeframe although a
memorandum, which did not address the
substance of the claim, was filed out of
time. No security for costs was filed. The proceeding was accordingly struck out.


[8]
     The defendants, who are effectively the Hauraki District Council, now seek
costs against the plaintiff in relation to the plaintiff's
claim, excluding the interim
injunction attendances.


[9]      The defendants seek indemnity costs under r 48C(4) of the High Court Rules,
which provides that indemnity costs may be ordered where a party has acted
"vexatiously, frivolously, improperly, or unnecessarily"
in commencing or
continuing the proceeding. The defendants submit that the plaintiff's conduct in
commencing and continuing the proceeding
warrants the grant of indemnity costs.
They submit that the plaintiff's assertions were nonsensical, and emphasise that an
indication
that the claim was hopeless had been given in an earlier proceeding in the
Waihi District Court. They further emphasise that no proper
address for service was
provided, the address being "General Post Office, Waihi".         They note that the
plaintiff's claim was
extraordinarily prolix and difficult to comprehend.          The
indemnity costs claimed are $12,364.69.


[10]     Alternatively,
the defendants seek increased costs under r 48C(3) because of
the plaintiff's failure to comply with the High Court Rules and his
pursuit of an
argument that lacked merit.


[11]     Mr Israel resists the application. He asserts that much of the costs claimed
relate to matters not directly connected to the High Court proceeding and asserts that
justice is supposed to be free. He apologises
for his failure to file a memorandum as

required, and states that at all times he has sought to avoid conflict with the
defendants.


Discussion


[12]    The defendants have already had a costs award in their favour made by
Heath J on the interim injunction application.
There are therefore no defended
hearings to which this claim for costs relates. The defendants have provided a
schedule setting out
a scale of costs on a category 2B basis for actual attendances.
These attendances include the preparing and filing of an interlocutory
application to
strike out and/or for summary judgment.             There is also a claim included for
preparation for such a hearing,
although it never occurred. The total scale costs
claimed including disbursements are $6,602.00.


[13]    I am not prepared to order
indemnity costs in favour of the defendants.
While the plaintiff's claim was, from a lawyer's perspective, hopeless, there is no
indication that the plaintiff has acted in bad faith, or has taken any steps to prolong
the proceedings or deliberately frustrate
the processes of the Court. There will
always be difficulties when a party seeks to act without legal representation. Almost
inevitably
there will be extra costs because the party acting without such
representation makes procedural errors that a lawyer would not make.
I do not think
that that in itself is a basis for ordering extra costs.


[14]    The costs that are sought at scale of $6,602.00
constitute in terms of the rules
a fair return. It includes the preparation and filing of an interlocutory application.
As cases
brought by lay litigants go, this case in terms of the costs incurred is not
exceptional. It was a hopeless claim, and that is presumably
why it has not been
pursued in accordance with the directions. Costs must follow. However, despite its
lack of merit the circumstances
are not so exceptional as to warrant a departure from
the scale. I do, however, award all extra service costs required as a consequence
of
the non-complying address for service, which as a matter of common sense was not a
reasonable address to give to the Court.

Result


[15]     Costs are therefore awarded on a category 2B basis for the attendances shown
in the schedule to the defendants'
memorandum of 17 April 2007, together with
disbursements including any additional service disbursements.




                   
                                         .............................
                                                         
                     Asher J