Shapkin v McCutcheon [2014] NZHC 2072 (29 August 2014)

Last Updated: 8 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3649 [2014] NZHC 2072

BETWEEN	VLADIMIR ALEXANDROVICH SHAPKIN Plaintiff
AND	STUART MCCUTCHEON First Defendant JOHN MORROW Second Defendant THE UNIVERSITY OF AUCKLAND, DISCIPLINE COMMITTEE Third Defendant

Hearing:	On the Papers
Appearances:	Plaintiff in Person D J Neutze for Defendants
Judgment:	29 August 2014

JUDGMENT (No.2) OF COOPER J [ON COSTS]

This judgment was delivered by Justice Cooper on

29 August 2014 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

Solicitors:

Brookfields, Auckland

SHAPKIN v MCCUTCHEON [2014] NZHC 2072 [29 August 2014]

Copy to:

Mr Shapkin, Auckland

[1] By a judgment delivered on 30 October 2013,¹ I declined an application for interim relief under the Judicature Amendment Act 1972. The application had been made by Mr Shapkin initially seeking urgent interim relief, in the absence of a statement of claim.

[2] In my judgment, I described the application as one which effectively should be viewed as an application under s 8 of the Judicature Amendment Act 1972.

[3] For reasons given in my judgment I declined Mr Shapkin’s application. I noted at the outset that the hearing had involved what I described as a “rather discursive process” in which I had discussed the position with Mr Shapkin and counsel, rather than hearing submissions “proceeding in a traditional way”. I adopted that approach, because it did seem to me as if the matter should be one able to be settled.

[4] However, despite discussions between the parties subsequent to my judgment, no settlement has been achieved.

[5] Mr Neutze seeks costs for the defendant, on the basis that Mr Shapkin’s claim for interim relief was unsuccessful, and costs should follow the event in accordance with r 14.2(a) of the High Court Rules. The defendant’s claim is for increased costs on the basis of a 50 per cent uplift from scale. If such costs cannot be awarded then the claim was for $7,167.

[6] Mr Shapkin opposes an award of costs. In the course of his memorandum, Mr Shapkin has referred to settlement discussions that took place following the judgment; since settlement was not achieved, I doubt that those discussions should have been referred to. In any event, they are not relevant to the claim made which

_{relates to events down to and including the judgment.}

¹ Shapkin v McCutcheon [2013] NZHC 2864.

[7] Mr Neutze submits that the proceedings should be classified in category 2. Mr Shapkin contends that category 1 should apply. He refers to the straightforward nature of the proceeding, referring to (without repeating) observations that I made to counsel at a telephone conference on 9 May. Mr Shapkin also contends that Band A should apply to all or some of the steps in the proceeding.

[8] I am satisfied that category 2 band B is appropriate. Although Mr Shapkin described the proceeding as straightforward in nature that is not the test for category 1. The relevant test is whether the proceeding is of a straightforward nature “able to be conducted by counsel considered junior in the High Court”. The difficulty that Mr Shapkin faces on this issue is that the matter was rendered procedurally more complex than it should have been by the manner in which he proceeded. He made an initial interlocutory application without notice, which itself ran to five pages in length. Then, the statement of claim, when filed, ran to over 40 pages.

[9] In the circumstances, what could have been straightforward was not and I

consider category 2, with its reference to “average complexity” appropriate.

[10] I also consider band B appropriate. That is essentially for the same reasons as lead me to the view that category 2 is appropriate. Mr Shapkin asserts that some steps should have been able to be accomplished within band A. However, he does not identify what those steps are.

[11] Mr Shapkin has also raised various issues concerning the schedule attached to counsel for the defendant’s memorandum seeking costs. Items challenged are as follows:

(a) Mr Neutze has claimed for a telephone conference held on

2 September 2013. Mr Shapkin says there was no such conference. It appears that Mr Shapkin is correct: on the file is a minute of Lang J dated 2 September rejecting a request that had been made by Mr Shapkin for a telephone conference. The appropriate adjustment reduces scale costs by the sum of $398.

(b) Mr Neutze has claimed an item “pleading in response to amended pleading (second amended notice of opposition to amended interlocutory application)”. He states that the amended notice of opposition was necessary due to the plaintiff filing a statement of claim dated 20 September 2013 that materially affected the grounds of opposition. Mr Shapkin says that a notice of opposition to an interlocutory application is not a “pleading” under the definition provided by r 1.3, and is not part of step 9.

[12] Mr Shapkin is again correct. However, in this case, his point does not lead to any reduction in scale costs. In my view, the proper item under which a claim should have been made was item 23 of Schedule 3, namely “filing opposition to interlocutory application”. However, since the allocated part days in respect of item

3 are the same as those in respect of item 9, this point is immaterial. Equally immaterial is Mr Shapkin’s submission that no directions were granted to amend the notice of opposition nor ever sought in any memoranda. It was perfectly legitimate for the defendant to file an amended notice of opposition in the circumstances that arose.

[13] Mr Shapkin also submits in respect of this item that the amended notice of opposition was not considered on 30 October 2013, and also submitted that it was filed out of time. The first point is not significant: documents formally filed are quite often not referred to at a hearing. That of itself does not disentitle the party filing to claim costs. Similarly, Mr Shapkin complains essentially that the amended notice was filed out of time and he makes a similar allegation with respect to an affidavit filed by Ms Lisa Walsh (dated 11 October 2013) to which Mr Neutze referred in his memorandum. However, no claim is advanced for costs in respect of the Walsh affidavit.

[14] The reason given by Mr Neutze for the amended notice is that it was prompted by the filing of a statement of claim on 20 September; in the unusual circumstances that the statement of claim was not filed at the outset, I am satisfied that this item is properly claimable.

[15] The defendant’s claim for increased costs is advanced on the basis that the plaintiff has contributed unnecessarily to the time and expense of the proceeding by taking and pursuing unnecessary steps or arguments that were without merit, were misconceived and had no reasonable prospect of success. It is also said that the plaintiff has acted frivolously, improperly and unnecessarily in commencing and continuing the application. Mr Neutze submits that the defendant has been put to the unnecessary trouble and expense of dealing with the plaintiff’s application for interim orders which ought not to have been brought in the first place and should certainly not have been continued after 5 August 2013.

[16] In response Mr Shapkin denied that he had acted unreasonably. He maintained that access to justice is a legal right under the New Zealand Bill of Rights Act 1990, and involvement in the litigation was “therefore a reasonable act”. He denies that he has any legal duty to attend the Discipline Committee and asserts that the process of being sent there was illegal. Going to Court to seek an interim injunction was not unreasonable and, since no statement of defence had been filed by

30 October, there were no facts in dispute “as they had automatically been admitted”.

[17] Mr Shapkin’s submission misses the point. He overlooks the fact that, as recorded in paragraph [31] of my judgment of 30 October, the statement of defence was only due to be filed the day before the hearing and Mr Shapkin agreed that it need not be filed pending the disciplinary process that is now to take place. It is not appropriate for him to now raise that issue.

[18] The real point made by Mr Neutze is that there was no need for the interlocutory application for interim relief to proceed in view of the University’s stance that the disciplinary hearing would not proceed until the outcome of the present proceeding was finalised. Put simply, there was no need to restrain the disciplinary hearing in circumstances where the University had agreed that pending resolution of Mr Shapkin’s litigation the hearing would not proceed.

[19] Notwithstanding Mr Neutze’s submissions however I am reluctant to award increased costs in circumstances where Mr Shapkin, although a law student, was clearly unfamiliar with the Court’s procedures. That was evident from the fact that

he did not file a statement of claim at the outset. I consider the appropriate course to follow is to award costs in accordance with category 2B.

[20] The sum sought is $7,167. I have concluded that from that amount, the sum of $398 should be deducted. That leaves a total of $6,769.

Result

[21] The plaintiff is to pay the defendant’s costs in the sum of $6,769.