N R v District Court at Auckland [2014] NZHC 1919 (14 August 2014)

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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING DETAILS OF THE APPLICANT AND SECOND RESPONDENT.

UNDER	Judicature Amendment Act 1972
IN THE MATTER OF	Judicial Review of a decision of the District Court at Auckland
BETWEEN	N R Applicant
AND	DISTRICT COURT AT AUCKLAND First Respondent M R Second Respondent JACKSON RUSSELL Third Respondent

Hearing:	25 June 2014
Counsel:	N R in person No appearance for First Respondent (abiding decision of the Court) A J B Holmes and G Tompkins for Second Respondent J M Keating for Third Respondent
_Judgment:	_{14 August 2014}

2011 and early 2012. After she had terminated their professional relationship, Mr R went to considerable lengths to try and contact her, including hiring a private detective. Ms M became increasingly concerned about Mr R’s attempts to contact her. She eventually applied to the District Court for a restraining order against him (“harassment proceeding”). A restraining order was made on 9 May 2013, for a period of five years.¹

[2] Ms M’s successful application for a restraining order has given rise to a multiplicity of interrelated proceeding by Mr R against Ms M (and now also her former solicitors, Jackson Russell).²In one of those proceedings Mr R alleged various breaches of contract, defamation, breaches of confidence, unjust enrichment, breach of privacy, breach of the Consumer Guarantees Act 1993, and the filing of malicious proceedings under the Harassment Act 1997 and Domestic Violence Act

1995 (“civil proceeding”). He sought damages of $84,842.80 against Ms M, and subsequently sought to also join Jackson Russell to the proceedings, as second defendant.

[3] The civil proceeding was struck out by Judge B A Gibson in the District Court at Auckland, on 11 November 2013 (“Strike Out Judgment”). He held that Mr R’s claims were untenable, frivolous, vexatious, and otherwise an abuse of process. Mr R appealed that decision to this Court, unsuccessfully.³Judge Gibson subsequently awarded indemnity costs against Mr R (“Costs Decision”) on the basis that:

[8] The plaintiff's proceedings were struck out as an abuse of process and also as being frivolous and vexatious. I was satisfied that the plaintiff was also using the proceedings for an improper purpose, namely the harassment

¹Duffy J has recently determined on appeal that although a restraining order was justified, the five year duration of the order was excessive and that an order of 12 months duration would impose the degree of restraint reasonably justifiable to protect Ms M from harassment. There is accordingly no restraining order currently in force: N R v District Court at Auckland [2014] NZHC 1767.

²These are summarised in Schedule 3 to the Judgment of Woodhouse J in N v M [2014] NZHC

239. As at the date of that judgment Mr R had issued seven separate proceedings or complaints arising out of his interaction with Ms M.

³His appeal was dismissed by Andrews J on 30 April 2014 in NR v MR [2014] NZHC 863.

of the defendant through the use of legal processes. As such the plaintiff's misconduct clearly qualifies for an award of indemnity costs as being

'flagrant' in terms of Saunders v Winston Stock Feed [2009] NZCA 148; (2009) 19 PRNZ 342 (CA), 347.

[4] Ms M was awarded costs totalling $51,522.92 (inclusive of GST and disbursements) and Jackson Russell was awarded costs of $10,695 (inclusive of GST).

[5] Mr R now seeks to judicially review the Costs Decision.⁴He alleges that the Judge breached the principles of natural justice, failed to take into account relevant considerations, breached his rights to justice affirmed by s 27(1) of the New Zealand Bill of Rights Act 1990 and made a decision that was irrational. Mr R’s second amended statement of claim raises the following specific issues for determination:

(a) Was the Judge wrong to decline Mr R’s request for an oral hearing on costs issues? (A related issue is whether the Judge failed to give Mr R an extension of time to make submissions).

(b) Did the Judge improperly fail to permit Mr R to adduce evidence that Ms M and Jackson Russell (and their solicitors) acted unnecessarily, improperly or in bad faith in the proceeding; and that Ms M was funded by a non-party?

(c) Was it irrational for the Judge to calculate the quantum of costs with reference (in part) to scale category 3C, given his view that the issues were not necessarily complicated?

(e) Did the Judge err in awarding costs to Jackson Russell, given that it was only the intended second defendant and had not yet been formally

[6] I will consider each issue in turn, after briefly summarising this Court’s

[7] It is well established that the High Court has an inherent jurisdiction to review decisions of the District Court, including procedural, pre-trial and substantive determinations. There is, however, a fundamental distinction between the review jurisdiction and appeals from decisions of lower courts. A reviewing court examines the correctness of the decision-making process applied by the inferior court, whereas

an appeal court examines the correctness of the decision itself.⁵A reviewing court

that intervenes on the merits of the decision in question “under the guise of preventing the abuse of power, [will] be itself guilty of usurping power”.⁶The overriding consideration on review is whether there has been some impropriety or fundamental irregularity in the decision making process, so that the decision cannot stand.⁷

[8] It is also well established that for policy reasons the power to review decisions of inferior Courts is to be exercised sparingly.⁸It should be reserved for rare cases involving clear errors of law of a jurisdictional nature where the intervention of the High Court is imperative.⁹Accordingly, a reviewing court ought to exercise restraint when considering the reasonableness or fairness of an inferior court’s decisions; the focus is whether the decision was one that was open to be reached, rather than whether it was the most reasonable approach and decision in the

⁷_{Air New Zealand Ltd v Nelson Airport Ltd HC Nelson
CIV-2007-442-584, 16 June 2008 at [66].}

Was the Judge wrong to decline Mr R’s request for an oral hearing on costs

[9] The Strike Out Judgment was first released on 16 October 2013.¹⁰In that judgment, Judge Gibson directed as follows:¹¹

21 days. Each party, including the proposed second defendant, may reply to these memoranda within 14 days of receipt of the same. I will then

[10] Ms M, as the successful party, sought indemnity, or alternatively increased costs, in a memorandum dated 6 November 2013, as did Jackson Russell. Mr R also filed a memorandum on 6 November 2013. He alleged that unnecessary costs had been incurred as a result of the defendants’ own vexatious or improper conduct. He sought orders that either determination of costs be deferred pending the outcome of his appeal from the Strike Out Judgment or that costs lie where they fall.

[11] Mr R also wrote to Ms M’s solicitors, on 12 November 2013, advising that he considered that determination of costs issues would take two days and that he intended to summons various witnesses. Mr R suggested that Ms M and Jackson Russell consent to an order deferring determination of costs issues, at least until his appeal from the Strike Out Judgment was determined. He stated:

The bottom line, the procedure is going to be very expensive and prolonged. Given the quality of the District Court’s judgments I have seen so far, it is likely that I will appeal and seek a judicial review of the result.

[12] These judicial review proceedings were accordingly foreshadowed even before the Judge had considered costs issues and delivered the Costs Decision.

[13] Mr R filed a further costs memorandum, in reply to the costs memoranda of Ms M and Jackson Russell, on 20 November 2013. He opposed any order of costs against him and again sought a deferral until after determination of his appeal. In addition, he sought (for the first time) a direction for an oral hearing on costs issues.

_{He said that he anticipated a two day hearing with cross-examination of
several}

¹⁰It was subsequently recalled and re-released on 11 November 2013 to include Non-Publication

witnesses. Mr R’s suggested timetable for an oral hearing requested eight weeks for him to approach various witnesses (including Ms M) with requests for affidavits or to administer interrogatories in the event that affidavits were not forthcoming. Once he had elicited the required evidence, he sought a further two weeks to estimate the required length of hearing and apply for a fixture. He then sought a further seven weeks to prepare for the costs hearing.

[14] In particular, Mr R wished to adduce evidence of deliberate breaches of discovery orders (including disclosure of privileged communications), “contemptuous (if not criminal) dissuasion of a witness” and delay and vexatious conduct. He submitted that:

Given the complexity of the matter, it is impossible for the Plaintiff to put forward all relevant matters in a memorandum; an oral hearing is required to enable the Plaintiff to adduce relevant evidence and make proper submissions to the Court.

[15] As Mr R had noted in his earlier memorandum, the matters he sought to adduce evidence on were already before the Court in related contempt proceedings he had filed in January 2013 (CIV-2013-404-0075) (“contempt proceedings”). In those proceedings he alleged contempt of Court by Ms M, her former solicitors Jackson Russell, and two members of that firm in relation to their conduct of the civil proceeding and the harassment proceeding. Woodhouse J subsequently struck out the contempt proceeding and made an award of indemnity costs against Mr R. Mr R has appealed that decision to the Court of Appeal. At the time of the Costs Decision, however, the contempt proceedings had yet to be heard.

[16] Ultimately, Judge Gibson did not accede to Mr R’s request for an oral hearing. He proceeded to determined costs on the basis of the written material before him, as he had said he would do in the Strike Out Judgment. The Judge gave the following reasons in his Costs Decision for declining an oral hearing on costs issues:

[27] Finally, notwithstanding my earlier direction as to the provision of memoranda from the parties on the issue of costs the plaintiff sought an oral hearing. There is nothing in the issues that, in my view, required costs to be dealt with other than in the ordinary way and consequently the plaintiff's request for an oral hearing is refused.

[17] The issue I must determine is essentially whether, in declining Mr R’s request

for an oral hearing, the Judge acted unfairly in all the circumstances of the case.

[18] A decision maker’s duty to act fairly and in accordance with the principles of

natural justice, is affirmed by section 27(1) of the New Zealand Bill of Rights Act

1990. A decision maker must afford each party an opportunity that is fair in the circumstances to put their views, information and arguments, and to know the contrary views, information and arguments. ¹²What the “opportunity” requires will vary according to the facts and circumstances of each particular case. There are circumstances where an oral hearing with rights of cross-examination are required, and others where the ability to provide submissions is sufficient.

[19] The starting point is that all matters in respect of costs are in the discretion of the Court, including those as to procedure and the mode of hearing. Whether the circumstances of this particular case were such as to require an oral costs hearing was therefore a discretionary matter for the Judge, although the discretion must be exercised in a principled way.

[20] Mr R was found to have abused the Court’s processes by bringing the civil proceedings in the first place. The Judge found, in the Strike out Judgment, that:¹³

[T]here is something more at issue here than wounded egos, rather a more sinister use of the Court’s processes for the further harassment of the defendant through the use of legal procedures”.

[21] This broader context, which is also reflected in the tenor of Mr R’s correspondence with Ms M’s solicitors, which was provided to the Judge, would likely have raised some concern as to whether Mr R’s request for an oral hearing on costs issues was motivated, at least in part, by improper motives.

[22] Further, the usual practice, even in major litigation involving very significant costs and complex legal and factual issues, is for costs to be determined on the papers. Obviously, the interests of justice in a particular case may require an oral

_{hearing. Such circumstances are, however, relatively rare. In this case
I see no basis}

¹²Described also as “fair play in action”: Daganayasi v Minister of Immigration [1980] 2 NZLR

for concluding that the Judge was wrong to conclude that there was nothing in the issues raised by Mr R that required costs to be dealt with other than in the ordinary way. (“Issues” in this context refers to the issues that are properly relevant to the determination of the costs of the civil proceedings.)

[23] Mr R submitted that costs should be reduced as a result of conduct on the part of Ms M and Jackson Russell which was, in his view, improper. Both parties’ conduct of the proceedings would, however, have been well known to the Judge. Indeed much of Ms M’s and Jackson Russell’s conduct of the proceeding would have been apparent from the court record. The Judge was also familiar with Mr R’s allegations regarding breaches of privilege. In addition, Mr R was entitled in his costs memoranda to explain (in as much detail as he wished) why Ms M and Jackson Russell’s conduct justified a reduction. There was also affidavit evidence before the Court regarding Mr R’s misconduct allegations and more such evidence could have been filed if Mr R had wished to do so.

[24] The issues that Mr R wished to explore at an oral hearing largely mirrored those he had raised in his separate contempt proceedings. As I have noted above, Woodhouse J subsequently struck out the contempt proceedings on 21 February

[18] All of the applicant’s complaints are struck out. Many can be struck out based on documentary evidence alone which demonstrates conclusively that the allegations are not factually correct. Other claims, such as witness tampering and breaching privilege, are not made out on the facts as pleaded. The rest, even if true, are so trivial that they could never support a finding of contempt.

[19] I am also satisfied that this proceeding should be struck out because it is vexatious, an abuse of process, and a further attempt to victimise and harass Ms M through litigation.

[25] In addition, Andrews J subsequently determined that Mr R has no privilege in the documents in respect of which breach of privilege allegations were made.¹⁵

[26] Relief in judicial review proceedings is discretionary. Even if (contrary to my view) Mr R were able to establish that the Judge erred in not allowing an oral costs hearing, it would not now be appropriate to remit the issue of costs back to the District Court with a direction to consider and determine allegations that Woodhouse J has already found to be factually incorrect, trivial, untenable and insufficient to support an arguable cause of action.

[27] Mr R also advanced a related argument, which was essentially that if the Judge was not going to allow an oral hearing, he should have extended the time for filing submissions. This is particularly so, given that Mr R was self-represented.

[28] I do not accept this submission. First, Mr R did not seek such an extension. Further, although Mr R is self-represented, he is a professional man who is clearly highly intelligent. Perhaps not surprisingly, Mr R’s grasp of the relevant factual material exceeds that which would be expected of most counsel. In addition, he appears to have developed significant expertise in relation to both procedural and substantive legal matters in the course of pursuing his various proceedings.

[29] For all of the reasons I have outlined, the Judge did not err in concluding that an oral costs hearing was not required in this case. Nor, in my view, should the Judge have granted an extension of time for the filing of further submissions on costs issues. Mr R had a total period of four weeks to address any costs issues (two weeks initially and a further two weeks for reply) which was reasonable in all the circumstances.

Did the Judge improperly fail to permit Mr R to adduce evidence of impropriety on the part of Ms M and Jackson Russell, or of Ms M’s funding arrangements?

[30] This allegation is closely related to the allegation that the Judge was wrong not to allow an oral hearing, given that the stated purpose of such a hearing was to enable Mr R to adduce further evidence of impropriety. It necessarily follows from my conclusion that the Judge did not err in not allowing an oral hearing, that he did not improperly fail to permit Mr R to adduce evidence of wrongdoing on the part of the respondents at such an oral hearing.

[31] Mr R also advanced a related argument, which was, in effect, that his submissions as to impropriety by Ms M and Jackson Russell, and Ms M’s funding arrangements, were not taken into account by the Judge in the Costs Decision.

[32] This allegation was not specifically pleaded, unless it was intended to fall within the unparticularised pleading at [7] of the second amended statement of claim that “the first respondent failed to take into account relevant considerations”. Given, however, that this allegation relates broadly to the pleaded claim that the Judge improperly failed to permit Mr R to adduce evidence of impropriety, I will address it.

[33] The Judge had clearly read Mr R’s costs memoranda, as he specifically referred to them in the Costs Decision. He specifically noted Mr R’s submission that either costs lie where they fall or that the issue of costs be deferred. There is therefore no basis for concluding that the Judge somehow “overlooked” or was not aware of Mr R’s submissions on costs issues. Rather, the necessary inference must be that he simply did not accept Mr R’s submission that, in effect, costs should lie where they fall or be reduced because Ms M’s defence of Mr R’s (improper and vexatious) proceedings had itself been conducted improperly. The merits of the Judge’s conclusion on that issue have subsequently been reinforced by Woodhouse J’s findings in the contempt proceedings.

[34] The Judge did not set out his specific reasons for not accepting Mr R’s submissions. Although providing such reasons is certainly “best practice,” I note the observations of the Supreme Court in Manukau Golf Club Inc v Shoye Venture Ltd as to the requirement for giving reasons in costs decisions:¹⁶

We wish to make clear a court does not have to give reasons for costs orders where it is simply applying the fundamental principle that costs follow the event and the costs awarded are within the normal range applicable to that court. So here, had the Court of Appeal awarded costs in the Club’s favour on a standard appeal basis, no further explanation would have been required. It is only when something out of the ordinary is being done that some explanation, which may be brief, should be given.

¹⁶Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [16].

[35] In this case the civil proceedings had been struck out as being frivolous, vexatious and an abuse of process. In such circumstances it would be exceedingly rare for costs not to follow the event. Further, where (as here) there has been a finding of a “sinister” abuse of process, it would be rare for indemnity costs not to be awarded. The Judge’s decision was therefore not “out of the ordinary” in any way.

[36] In relation to Mr R’s allegations regarding Ms M’s source of litigation funding, his memorandum of 6 November 2013 simply alleged that the Ms M was “apparently champertously sponsored by Jackson Russell”. The relevance of this to costs issues was said to be:

If the Court makes a costs order against the plaintiff, and the order is quashed on appeal, the plaintiff will suffer irreparable damage as the defendant will not be able to refund even a fraction of the funds paid to her in case if the funds were spent on legal costs or otherwise.

[37] Mr R’s costs subsequent memorandum of 20 November appeared to argue (although it is not entirely clear) that a costs order against Jackson Russell may be appropriate in the event that they had been a party to any breaches of duty to the Court and were a “funder and maintainer of the litigation”.

[38] In my view there was nothing in the material before the Judge relating to Ms M’s litigation funding arrangements that was sufficiently developed or relevant that it needed to be specifically addressed by the Judge in his Costs Decision. Even in this Court, where the arguments were much more fully developed, it was difficult to discern the precise basis on which Ms M’s litigation funding arrangements (if any) could be relevant to determining the costs of the civil proceedings.

[39] The issue raised in Mr R’s 6 November memorandum (namely that it might be difficult to get any costs reimbursed if the Strike Out Judgment was overturned on appeal) was not relevant to the quantum of any costs award. Rather, such a submission would be more appropriately made in the context of an application to stay execution of any costs award, pending the outcome of the substantive appeal. The argument is now moot, in any event.

Memorandum, this case is far removed from cases where a plaintiff has brought proceedings funded by an interested third party who is hoping to share in the spoils. Ms M was a defendant in proceedings against her that were found to be vexatious and abusive. She had no choice but to defend them as best she could. Provided that her legal costs were properly and necessarily incurred and were reasonable in quantum, it is difficult to see how her funding arrangements (if any) are relevant. Ms M has never sought to recover anything from Mr R, save for costs that have actually been incurred in the various proceedings. There has been no prospect of monetary gain by either Ms M or Jackson Russell. Cases such as Contractors

Bonding Ltd¹⁷(which Mr R relied on in his submissions before me) are simply not

Was it irrational for the Judge to calculate the quantum of costs with reference (in part) to scale category 3C, given his view that the issues were not necessarily complicated?

[41] The total costs sought by Ms M were $97,613.79. Jackson Russell (as intended second defendant pursuant to a joinder application) supported Ms M’s strike out application and sought costs of $26,408.60 for doing so. Copies of fee notes were provided to the Court, but not details of hourly rates charged or supporting time sheets. The Judge expressed concern that there was not enough information before him to prove that the indemnity costs sought were objectively reasonable. He therefore used as his starting point for calculating indemnity costs the schedule of scale costs prepared by the Ms M (in the event that her application for indemnity costs was unsuccessful) which:

(a) Adopted the rate prescribed by category 3 from 18 February 2013, as, in Ms M’s submission, after the contempt proceedings were filed and Jackson Russell were required to withdraw, the proceeding had evolved into a proceeding that required counsel to have special skill and experience because of the complexity and significance of the

¹⁷Waterhouse v Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91; Contractors

(b) Adopted time band C in respect of two steps in the proceeding: preparation of the strike out application itself, and the memoranda regarding Mr R’s requests for the recusal of Judges Sharp and Cunningham.

[42] The Judge then increased those scale costs by 33 per cent to approximate reasonable indemnity costs, stating:

This sum represents costs that, standing back and looking at the matter overall, I am satisfied are reasonable and should be paid by [Mr R] to the defendant on account of the costs rendered by the defendant’s solicitors, Wilson Harle and the counsel instructed by them.

[43] The end result was an award of costs in Ms M’s favour of $51,522.92 (inclusive of GST and disbursements) and $10,695 in Jackson Russell’s favour (inclusive of GST).

[44] Mr R pleads that the Judge was irrational in applying scale calculations involving category 3C when elsewhere in the Costs Decision he stated that the issues were not necessarily complicated.¹⁹This particular claim was not further developed in Mr R’s submissions. I am satisfied, however, that the approach the Judge took was properly open to him and did not result in an award of indemnity costs that was excessive. Indeed, the Judge appears to have taken a fairly conservative approach to quantum, given his view that indemnity costs were appropriate. The “indemnity” costs awarded were approximately half of the actual solicitor-client costs incurred by

[45] Mr R alleges that the Judge erred by not taking into account that costs are GST neutral. If so, that would constitute an error of law. A decision of an inferior Court that is based on an error of law is reviewable.²⁰However, to be reviewable the

_{error must generally be shown to have been sufficiently material to the
decision to be}

a cause of injustice. The decision may be allowed to stand where the error did not have a material bearing on the decision.²¹

[46] Mr R submitted that Jackson Russell should not have been awarded GST on its costs award. Jackson Russell is GST registered and will be able to claim an input credit in respect of any GST charged to it by its legal service providers. Accordingly the addition of GST to the costs award in favour of Jackson Russell will result in an over-recovery that equates to the amount of the GST component of its costs award ($1,395.00).

[47] The respondents submitted that any error was minor relative to the overall quantum of costs claimed and did not warrant an adjustment in the overall costs award, particularly given that the Judge’s award was only about half of the actual costs incurred.

[48] Indemnity costs are intended to compensate a party for their reasonable actual legal costs. If the successful party were to receive more than this then they will have over-recovered. Costs are GST neutral, to prevent any such over recovery. Although the quantum involved is modest, Mr R has, in my view, established that an error of law was made and, in my view, the quantum of the costs awarded against him should be adjusted accordingly.

[49] The fact that the amount of costs sought was significantly greater than the amount awarded is of little relevance. Ultimately the Judge determined that the objectively reasonable quantum of indemnity costs in favour of Jackson Russell was

$9,300.00. He erred in adding an additional GST component of $1,395 to that amount. Mr R is entitled to a reduction in the costs award accordingly. The same

²¹R v Knightsbridge Crown Court Ex p Marcrest Properties Ltd [1983] 1 WLR 300 (CA); Peters v

Did the Judge err in awarding costs to Jackson Russell in respect of its involvement in the strike out application?

[50] In his 20 November 2013 memorandum, Mr R submitted that Jackson Russell’s participation in the strike out hearing, as a proposed defendant, was unnecessary and misconceived. Rather, the appropriate procedural course would have been for the Court to simply join Jackson Russell to the proceedings and grant leave to that firm to file its own separate strike out application, once it had been joined.

[51] The Judge found, however, that Jackson Russell was entitled to attend the hearing of Ms M’s strike out application to protect its own position. The basis of the joinder application was that Jackson Russell was jointly and severally liable to Mr R under the same causes of action as Ms M. Ultimately the joinder application failed, in effect, because the substantive proceedings between Mr R and Ms M were struck out.

[52] I find no error in the Judge’s reasoning. There was clearly a strong commonality of interest between Ms M and Jackson Russell. The claims (and intended claims) against them stood or fell together. If the Judge had adopted Mr R’s preferred course of joining Jackson Russell and then subsequently dealing with any strike out application filed by that firm, the outcome would have been the same. Jackson Russell would have attended and participated in the strike out hearing, albeit as the second defendant rather than the intended second defendant. Jackson Russell’s support of Ms M’s strike out application was appropriate, in order to protect its position. It was procedurally efficient in the circumstances for all matters to be dealt with together, rather than in sequential interlocutory hearings. The Judge’s costs award reflected the practical reality of the situation.

[53] I have concluded that the Judge made a relatively minor error of law in relation to GST. As a result, the costs award in favour of Jackson Russell should be reduced by $1,395.00. Mr R has failed to establish any of his other grounds of review.

[54] For completeness I note that Mr R’s submissions before me appeared to raise (often in an indirect or peripheral way) various other complaints or concerns. It is not necessary for me to embark on a wide-ranging consideration of issues that were not pleaded and I do not propose to do so. The various additional matters raised by Mr R, however, appeared to be without substance. No matters were raised which, in my view, would have justified setting aside the Costs Decision and remitting the matter back to the District Court.

[55] In the event that her defence of these proceedings was successful, Ms M sought an award of increased costs. Mr R opposed any costs being awarded against him, in favour of either respondent.

[56] Counsel for Ms M submitted that at least two of the grounds for increased costs in High Court Rule 14.6(3) exist, namely that Mr R pursued arguments that lack merit and that he failed, without reasonable justification, to accept a settlement offer.

[57] In relation to the settlement offer, in October 2012, Jackson Russell wrote to Mr R and made an offer to settle the civil proceeding on a without prejudice save as to costs basis. In particular, Ms M offered to pay $120 to Mr R (being the amount he had paid the Ms M for the additional hour of service he claimed not to have received). Mr R rejected that offer in the following terms:

I am sorry to say that everything that you put in the letter is absolutely worthless from a legal standpoint, as literally everything that I've seen from Jackson Russell to date.

Without prejudice: this proceeding amuses me, I am mildly curious as to the outcome, and I am ready to pay for my entertainment (I expressly say that

my derogatory statements apply only to Jackson Russell, the defendant and [Mr K], and have nothing to do with the Court, which I respect). I am not naive and realize that all the prejudice will be on your side. I am prepared for any outcome and I'm under no illusions here.

[58] As the offer represented a better outcome than Mr R achieved at either first instance in the District Court, or in this Court, Ms M submitted that she is entitled to increased costs in respect of all costs and expenses incurred since October 2012 in respect of the Mr R’s civil claims, which includes this judicial review.

[59] In addition, Ms M relied on Mr R’s conduct of these proceedings as justifying increased costs. The District Court held that each cause of action in the civil proceeding was untenable, and the entire proceeding was frivolous and vexatious. The Strike Out Judgment was upheld on appeal.

[60] Ms M further submitted that Mr R had sought to delay the hearing of these judicial review proceedings through late applications for disclosure of funding arrangements and appointment of an amicus and that Mr R’s approach to litigation has little to do with the merits of his claim. Rather, Mr R’s intentions and approach was foreshadowed in his email to Jackson Russell of 30 August 2012:

As to the legal actions, I see it as follows. If I win, [Ms M] will have to pay and will have to bear bitter feelings for quite a while. If I don't win initially/ I guarantee I will appeal it all the way up in the courts. If I lose in the court it doesn’t matter to me (from my perspective/ I already won as I achieved the minimum I wanted); as to [Ms M], I hope she will enjoy the evil she paid in return for good as I cannot see any other benefit for her.

[61] I find the issue to be finely balanced. Ms M makes a strong case for increased costs. Ultimately I have concluded, however, that 2B scale costs are appropriate. If Mr R had not successfully established a (minor) error on the part of the Judge in relation to GST, I would have concluded that increased costs were appropriate. It cannot be said, however, that these proceedings were entirely without merit, given that Mr R has succeeded on one ground of review. I accordingly award Ms M category 2B scale costs in the sum of $14,925.

[62] Jackson Russell also sought costs against Mr R but, unlike Ms M, did not provide a schedule of the quantum of costs sought. It is appropriate, however, that category 2B scale costs are also awarded in favour of Jackson Russell. It is not clear

whether the steps they have taken in this proceeding precisely mirror those of Ms M. Accordingly the appropriate quantum of costs may differ between the two respondents. I accordingly direct Mr R and counsel for Jackson Russell to endeavour to confer to determine the appropriate quantum of costs (on a 2B scale basis). If agreement cannot be reached, then leave is reserved to file memoranda.

[63] These proceedings concern the same underlying facts as the harassment proceeding. In those proceedings the District Court made orders under section

39(1)(b) of the Harassment Act 1997, forbidding the publication of the name of any person, or any name or particulars likely to lead to the identification of that person. Those orders have been mirrored in all subsequent litigation between the parties and it is appropriate that similar orders be made in these proceedings. I accordingly make an order prohibiting publication of the names or identifying details of the applicant and second respondent.

[64] The appeal is allowed in part. The quantum of costs awarded to Jackson Russell in the District Court are reduced from $10,695 to $9,300. The Costs Decision is otherwise upheld.

[65] Mr R is to meet Ms M’s costs of these proceedings in the sum of $14,925.00.

[66] Mr R is to meet Jackson Russell’s costs of these proceedings on a 2B scale basis. The parties are to endeavour to agree the quantum of such costs, failing which leave is reserved to file memoranda. Any memorandum on behalf of Ms M is to be filed by 26 August 2014. Any response by Mr R is to be filed and served by

High Court of New Zealand Decisions

N R v District Court at Auckland [2014] NZHC 1919 (14 August 2014)