REID V NEW ZEALAND FIRE SERVICE COMMISSION HC WN CIV-2008-485-2043 [2009] NZHC 447 (21 April 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                CIV-2008-485-2043

              UNDER                      the Human Rights Act 1993, the New
                                         Zealand Bill
of Rights Act 1990, the
                                         Judicature Act 1908, the Judicature
                           
             Amendment Act 1972, the United Nations
                                         International Covenant on Civil and
                                         Political Rights and the United Nations
                                         Convention
on the Rights of the Child

              IN THE MATTER OF           an appeal of a decision of the Human
                      
                  Rights Review Tribunal awarding costs

              BETWEEN                    JAMES ROBERT REID
            
                            Appellant

              AND                        NEW ZEALAND FIRE SERVICE
                       
                 COMMISSION
                                         Respondent


Hearing:      23 March 2009

Counsel:      Appellant
in person
              P A McBride for respondent

Judgment:     21 April 2009



                   RESERVED JUDGMENT OF DOBSON
J



[1]    This is an appeal against an award of costs made by the Human Rights
Review Tribunal (the Tribunal) against the appellant
(Mr Reid), and in favour of the
respondent (the Fire Service). The costs order of $3,000 was made by the Tribunal
after Mr Reid had
pursued an unsuccessful appeal to the Tribunal, from a ruling by
the Privacy Commissioner upholding privilege in relation to documents
that Mr Reid
had sought, both from the Fire Service and also from the Crown Law Office. His
request for personal information related
to work done by the Crown Law Office in



REID V NEW ZEALAND FIRE SERVICE COMMISSION HC WN CIV-2008-485-2043 21 April 2009

proceedings
it commenced in the name of the Attorney-General, seeking to have
Mr Reid declared a vexatious litigant. The Tribunal had upheld
the entitlement to
claim privilege as a ground excepting both the Crown Law Office and the Fire
Service from providing the withheld
information to Mr Reid.


[2]    Mr Reid also pursued an appeal against the Tribunal's substantive decision.
This separate appeal
against its subsequent costs decision managed to get ahead of
the substantive appeal in terms of the allocation of fixtures, largely
because of delays
on Mr Reid's part in having the substantive appeal ready for argument. Accordingly,
when this appeal was originally
called for argument on 4 March 2009, I adjourned it
for argument until after I was able to hear the substantive appeal on 23 March
2009.
I have settled my reasoning in this costs appeal only after considering all arguments
in the substantive appeal, the judgment
in which is Reid v Crown Law Office and
Privacy Commissioner HC WN CIV-2008-485-1203 21 April 2009.


[3]    In part because the
Fire Service has been proactive in pursuing costs against
Mr Reid when he is unsuccessful in litigious initiatives against them,
Mr Reid
discontinued the substantive appeal as against the Fire Service. In the course of his
oral submissions on this costs appeal,
he identified a range of reasons why it was
unnecessary to pursue the substantive appeal against the Fire Service. He also relied
on these as reasons why the Fire Service ought not to have been awarded costs by the
Tribunal in the first place.


[4]    For the
Fire Service, Mr McBride submitted that the consequences of
abandoning the substantive appeal against the Fire Service inevitably
reduced the
scope of the appeal against the Tribunal's exercise of its costs discretion to a very
narrow ambit. Abandonment of the
appeal meant acceptance by Mr Reid of the
Tribunal's decision upholding the grounds on which the Fire Service had resisted
providing
Mr Reid with the personal information. It followed from that substantive
decision that it was open to the Tribunal to exercise its discretion on costs on the
usual basis, ie that
costs follow the event. In that case, Mr Reid now had to accept
that the Fire Service was entitled to costs, and he could only argue
about the Tribunal
exercising its discretion as to quantum on some wrong basis.

[5]      However attractive that analysis may appear
in confining the scope of the
present appeal, and without rejecting the prospect that it will be determinative, or at
least influential,
in the ultimate outcome, I do not consider it appropriate to confine
the analysis of the matters arising on the appeal in that way.
This is but one of a
substantial number of chapters in Mr Reid's litigious campaigns, and substantial
judicial resources are being
committed to considering and determining diverse
propositions advanced by him in numerous proceedings. I consider it appropriate
to
comment on at least the more prominent of the arguments he advanced, not in any
way to encourage further litigation but, to the
contrary, to demonstrate that his
arguments have been considered thoroughly. I do so in part in the hope that it will
engender an
appreciation that he has "had his day in Court" rather than prolonging
any frustration (whether objectively justified or not) that
he has not been adequately
heard.


[6]      The nature of the discretion vested in the Tribunal when dealing with costs
has been
described by Harrison J in Haydock v Gilligan Sheppard HC AK CIV-
2007-404-2929 and CIV-2008-404-1240 11 September 2008 at [38] in
the following
terms:

         ...(1) the Tribunal's power under s 85(2) to award costs is largely unfettered
         but is to
be exercised judicially; (2) reference to High Court or other costs
         scales are useful as a guide only; (3) an award of costs
may be reduced in
         appropriate circumstances; (4) an assessment of costs takes account of the
         relevant features
of each particular case; and (5) settlement offers are a
         relevant consideration. I would add (6), and most importantly,
that the
         Tribunal usually finds costs should follow the event and in an amount
         reflecting a reasonable contribution
to the costs actually incurred by the
         successful party.

[7]      On appeal, this Court should not interfere with the exercise
of such a
discretionary power unless the Tribunal's decision is plainly wrong or there has been
an error of principle or insufficient
or improper weight has been given to any
relevant factor: Blackstone v Blackstone  (2008) 19 PRNZ 40 (CA) at [8].


[8]      Mr Reid argued that he should not have been liable for costs when he had
"won the battle but lost the war".
Part of his argument before the Tribunal was that
the Privacy Commissioner had erred in upholding the Fire Service's entitlement
to
privilege on the basis that Fire Service communications with the Crown Law Office

represented solicitor-client communications.
The Privacy Commissioner's decision
of 17 July 2007 was expressed in terms that privilege could be maintained on the
basis of lawyer-client
communications.


[9]    Although outcomes on interlocutory steps in proceedings, or success on
arguments that vindicate the position
of the party which ultimately loses, may go to
the discretion on quantum of costs, those occurrences do not influence the basic
principle.
That is, that costs generally follow the ultimate outcome. Here, Mr Reid's
aim was to get access to personal information. He was
declined the information on
the basis that the Fire Service was entitled to invoke privilege. That position was
upheld by the Privacy
Commissioner and subsequently also upheld by the Tribunal,
even although the nature of the Fire Service's participation in privileged
communications was recognised as being different.


[10]   The other principle underpinning the approach to costs by Courts and
Tribunals
in New Zealand is that generally the losing party is to make a reasonable
contribution, but not to indemnify the winning party, for
all costs incurred ­ see
r 14(2)(d) and (e) of the High Court Rules. That means that involvement by a
defendant in claims in many
jurisdictions, where the defendant's position is
ultimately vindicated, still involves material cost to the defendant party.    
  Here,
defence of the Fire Service's position before the Tribunal appears to have cost it
some $11,000, of which Mr Reid was ordered
by the Tribunal to contribute $3,000.
There is no error in principle in the Tribunal ordering costs against Mr Reid where
he was
unsuccessful in pursuing the outcome sought, even although he established
that the previous decision was founded on a mischaracterisation
of the relationship
between the Fire Service and the Crown Law Office.


[11]   Having deferred consideration of the arguments Mr
Reid presented on this
appeal until I had considered the substantive appeal, it is appropriate to refer to that
judgment in relation
to Mr Reid's contention that the Tribunal also confused the
character of the relationship between the Fire Service and the Crown
Law Office.
That criticism is wrong, essentially for the reasons expressed in paragraphs [17] to
[20] of my substantive decision.
The short point is that the Tribunal correctly
characterised the Fire Service as a third party with whom Crown Law Office

solicitors
had relevant contact in the course of discharging obligations to the
Attorney-General, as client of the Crown Law Office.


[12]
  Nor is there any validity in the argument that because the Fire Service
claimed indemnity costs when it was held not to be entitled
to costs on that basis, it
should therefore be disqualified from recovering costs on any lesser basis.


[13]   Mr Reid also argued
a range of points that can be summarised in the
proposition that the Fire Service had brought the dispute about refusal to disclose
personal information upon itself, and should therefore not be compensated for any
part of the costs it had to incur in defending
its position. This started with the notion
that the Fire Service had originally encouraged the Crown Law Office to consider
proceedings
against Mr Reid to have him declared a vexatious litigant: subsequent
withdrawal by the Crown Law Office of proceedings commenced
for that purpose
implicitly recognised that they ought not to have been commenced in the first place,
so that the Fire Service were
the authors of their own misfortune and ought to bear
the costs of what followed from their original initiative.            Further,
Mr Reid
complained about a lack of clarity in the identity of the documents he was seeking
from both the Fire Service and the Crown Law Office. He suggested
that if each
organisation had provided a list, in the form of lists of discovered documents in
litigation, then it would likely have
been apparent to him that the documents he was
seeking from the Fire Service were no more than duplicates of those he was seeking
from the Crown Law Office, so that he could have dispensed with the involvement
of the Fire Service at an earlier point in time.


[14]   As to the first point, neither the Tribunal nor I can reasonably be expected to
form a view on the relative extent of justification
for any suggestion that was
originally made by the Fire Service to the Crown Law Office, that it investigate the
prospect of proceedings
against Mr Reid seeking to have him declared a vexatious
litigant. Statistically, Mr Reid had pursued some 18 sets of proceedings
involving
the Fire Service that in some way bore upon the termination of his employment,
together with a further eight sets of proceedings
arising out of a Family Court
dispute in which he had been involved.             I do not accept that the subsequent
withdrawal of
the vexatious litigant proceedings by the Crown Law Office

necessarily establishes that they were ill-conceived at the outset.
Nor is it necessary
or appropriate to consider whether changes in circumstances, and particularly
changes in Mr Reid's attitude to
some or all of those proceedings after the vexatious
litigant proceedings were commenced, may not have been a sufficient justification
for their withdrawal.


[15]   The scope of the present dispute is confined to the correctness of the Fire
Service's grounds for
resisting disclosure of personal information. Pursuit of that
information was an initiative commenced by Mr Reid, and pursued separately
against the Fire Service as well as the Crown Law Office. The Fire Service would
have been in dereliction of its responsibilities
if it did not respond, and the terms of
its response have been vindicated by the decision of the Tribunal.


[16]   Equally, Mr Reid
cannot avoid the conventional consequences of losing the
appeal by arguing that a step which the Fire Service had no obligation to
take, should
in fact have been taken by the Fire Service and thereby lessened the extent of
involvement required of it in the appeal
before the Tribunal. Given the extremely
protracted history of Mr Reid's litigation against the Fire Service, it is extraordinary
to suggest any expectation that the Fire Service ought to voluntarily undertake
additional work, for which there was no precedent
and no requirement, in order to
help Mr Reid understand the extent of the information that he was seeking, and
which the Fire Service
was resisting providing to him.


[17]   Mr Reid also repeated some aspects of the ad hominem criticisms against the
members of the
Tribunal, and in particular its Chair, that had been advanced as part
of his arguments as to why the substantive outcome was wrong.
Quite apart from
Mr McBride's point that, in the absence of an appeal against the Tribunal's decision
so far as it related to the
Fire Service's conduct, Mr Reid had to accept the outcome,
I am now positively satisfied that the Tribunal's decision was correct
in law.


[18]   I need also to be mindful of the outcome on the substantive appeal, to the
extent that I have varied the outcome
before the Tribunal. That is in relation to the
obligation I found the Crown Law Office has to redact parts of the documents I
described
in the substantive appeal decision as the "disputed CLO file notes" ­ see

[31] to [47] of my substantive decision. That is a change
in outcome procured as a
result of the arguments on behalf of the Privacy Commissioner. Mr Reid did not add
anything of material
assistance on that aspect of the appeal and I do not see that
variation in outcome as affecting the outcome of this appeal on costs.


[19]     None of Mr Reid's arguments raise any realistic prospect that the Tribunal
addressed the discretion it has on costs on a wrong principle, or
indeed that it came
to the conclusion that the Fire Service was entitled to an award of costs in any way in
error.


[20]     Both
on the decision to award costs and their quantum, Mr McBride
emphasised the discretionary character of the Tribunal's power. As to
the quantum
of costs awarded, Mr McBride defended $3,000 as certainly no more than an
appropriate contribution for a full day hearing
plus five telephone conferences of an
interlocutory type. I agree and find no basis to adjust the quantum ordered.


[21]     Accordingly,
the appeal is dismissed.


[22]     A further issue arises in respect of costs on argument of this appeal. I was
substantially assisted
by Mr McBride's written submissions, and was grateful for his
patience in the greater time involved on behalf of the Fire Service
in responding
when this costs appeal was eventually dealt with at the conclusion of the argument of
the substantive appeal. However,
I do not consider it appropriate to attribute any
larger costs' obligation to Mr Reid on that account. The sequence of arguing the
two
appeals was altered by me because of unease at the prospect of hearing the costs
appeal before the appeal from the substantive
decision to which the costs related. I
am, however, satisfied that a further award of costs, in accordance with 2B scale
provisions,
is appropriate in favour of the Fire Service. That is to be assessed on the
basis of a half day hearing.




                   
                                                Dobson J
Solicitors:
James Reid, 2 Vogel Street, Woodville
McBride Davenport James,
Wellington for respondent