Mitchell v Martin [2014] NZHC 1443 (25 June 2014)

Last Updated: 2 July 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-003729 [2014] NZHC 1443

BETWEEN	KERRYN MITCHELL Appellant
AND	TERESA ANN MARTIN First Respondent CHRISTINE ANN MARTIN Second Respondent TESSA HAYWARD Third Respondent

Hearing:	25 June 2014
Counsel:	Appellant in person (via AVL) C F Rieger for Respondents
Judgment:	25 June 2014

_{JUDGMENT OF COLLINS J}

Introduction

[1] This judgment explains why I am dismissing Ms Mitchell’s appeal from a

decision of Judge Hastings in which he awarded costs against Ms Martin.

[2] The costs order was made after Ms Mitchell failed in three applications, namely:

(1) an application for a restraining order against Teresa Martin;

(2) an application for orders under the Harassment Act 1997 in relation to

_{Christine Martin; and}

MITCHELL v MARTIN [2014] NZHC 1443 [25 June 2014]

(3) an application to strike out an application by Ms Hayward for a restraining order against Ms Mitchell.

Background

[3] Teresa Martin is the partner of Mr Lundon. Mr Lundon was formerly Ms Mitchell’s partner. Ms Mitchell has been involved in protracted proceedings with Mr Lundon dating back to 27 November 2007, when the Family Court issued protection orders against Ms Mitchell in favour of Mr Lundon pursuant to the Domestic Violence Act 1995. Ms Mitchell has been convicted on many occasions for breaching protection orders. She is now serving a prison sentence for causing intentional damage to Mr Lundon’s home.

[4] On 4 September 2012, Ms Mitchell applied for a restraining order against Teresa Martin. She also applied for orders under s 32 of the Harassment Act 1997 for orders against Christine Martin, a police officer in Lower Hutt. Ms Mitchell wrongly assumed Christine Martin was related to Teresa Martin and had abused her position as a police officer by supporting Teresa Martin. In a separate proceeding, Ms Hayward sought a restraining order against Ms Mitchell. Ms Mitchell applied to strike out Ms Hayward’s application for a restraining order.

[5] Ms Mitchell’s three applications were heard by Judge Hastings on

14 November 2012. Judgment was given on 10 December 2012. When he dismissed Ms Mitchell’s three applications Judge Hastings gave Teresa Martin, Christine Martin and Ms Hayward 14 days to file written submissions and Ms Mitchell a further 14 days to respond if the parties were unable to resolve any dispute in relation to costs.

[6] A memorandum on costs was filed on behalf of Teresa Martin and Christine Martin on 24 December 2012. In that memorandum counsel for Teresa Martin and Christine Martin sought costs of $6,820 for each of them.

[7] On 31 December 2012 Ms Mitchell wrote to the District Court and advised

that she had received Judge Hastings’ decision and that she had:

... also received and read the cost memorandum for the respondents – Martin & Martin – CIV-2012-032-406/408 filed by D G Dewar, Thomas Dewar Sziranyi Letts.

... [that she wished] to advise Judge Hastings that due to health reasons and

lack of resources (no legislation) [she was] unable to file a response.

The deadline of 14 days given by Judge Hastings [was] not practicable in a custodial/remand. [She] wouldn’t be able to make the deadline. It would take 14 days to get the legislation sent in and the prison are withholding [her] legal papers from [her].

[8] On 1 March 2013 a further memorandum in relation to costs was filed on behalf of Teresa Martin and Christine Martin.

[9] On 24 April 2013 Judge Hastings issued his costs decision in which he said Ms Mitchell had had “plenty of time to file submissions in reply and had not [done so]”.

[10] Judge Hastings ordered costs against Ms Mitchell on a scale 2B basis in accordance with the memorandum filed by counsel for Teresa Martin and Christine Martin on 24 December 2013. Costs were also awarded to Ms Hayward.

[11] At the time it was not appreciated Ms Hayward was in receipt of legal aid. The costs award in favour of Ms Hayward needed to be adjusted. I did this on

10 March 2014. The costs order in favour of Ms Hayward was reduced to

$1,552.50. Those costs are payable to the Legal Services Agency.

Grounds of appeal

[12] Ms Mitchell’s appeal is based on two concerns:

(1) That she did not have an adequate opportunity to make submissions to

Judge Hastings before he made his costs orders; and

(2) The quantum of costs is unrealistic because she is in prison and will not be in any position to pay any costs until she is released from prison.

[13] Ms Mitchell’s ground of appeal based upon her lack of opportunity to file submissions has to be dismissed because by 28 December 2012 Ms Mitchell was fully appraised of the costs application that was being made by Teresa Martin and Christine Martin.

[14] Some latitude needed to be given to Ms Martin to make submissions in response. However, I am very satisfied that by 24 April 2013 Ms Martin had every opportunity to respond. Judge Hastings was fully justified in making the costs order when he did.

[15] The quantum of costs may prove problematic for Ms Mitchell. However, this ground of appeal must also be dismissed because Judge Hastings was fully aware of Ms Mitchell’s circumstances when he exercised his discretion to make an award of costs against her.

[16] Judge Hastings elected to award costs on a category 2B basis. That was an entirely appropriate approach for him to take.

[17] I can find no basis upon which Judge Hastings erred in the way in which he exercised his discretion. Accordingly, I must uphold his decision.

Conclusion

[18] Ms Mitchell’s appeal against the costs orders made in favour of Ms Teresa Martin and Ms Christine Martin is dismissed. They are entitled to costs in this Court on a scale 2B basis.

[19] Ms Mitchell’s related application in relation to Ms Hayward is also

dismissed.

[20] No order for costs is made in relation to the proceeding relating to

Ms Hayward.

_{D B Collins J}

Solicitors:

Thomas Dewar Sziryani Letts, Lower Hutt for Respondents