Chan v King [2014] NZHC 774 (31 March 2014)

Last Updated: 28 April 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2013-425-000273 [2014] NZHC 744

BETWEEN THE SOLICITOR-GENERAL OF NEW ZEALAND

Applicant

AND MARC ALLEN KRIEGER Respondent

Hearing: On the papers

Appearances: S McKechnie for the Applicant

Respondent in Person

Judgment: 9 April 2014

JUDGMENT OF PANCKHURST J [RE COSTS]

Introduction

[1] The substantive decision contained a finding that Mr Krieger was in contempt of Court, resulting in the imposition of a fine by way of penalty. Costs were reserved.

[2] Counsel for the Solicitor-General has filed a memorandum seeking indemnity costs and a supporting affidavit. The affidavit contains some updating evidence. Mr Krieger has not filed submissions.

Indemnity costs

[3] Rule 14.6(4) of the High Court Rules governs indemnity costs. Indemnity costs are the actual costs, disbursements, and witness expenses reasonably incurred

SOLICITOR-GENERAL v KRIEGER [2014] NZHC 744 [9 April 2014]

by the party seeking an award.¹ There is an onus on the claiming party to persuade the Court that indemnity costs are justified. Rule 14.6(4) provides that indemnity costs may be awarded if:

(a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or

(b) the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party.

[4] Counsel contends that Mr Krieger’s behaviour throughout the history of this proceeding falls squarely within the scope of both paras (a) and (b).

The circumstances relied upon to support an award of indemnity costs

[5] Counsel’s memorandum contains a full outline of the circumstances advanced in support of the present application. Most of the circumstances are also outlined in the contempt judgment of 17 February 2014 under the heading “The background to the alleged contempt”. I think it undesirable to give added currency to Mr Krieger’s views and comments by repeating them in this costs judgment. Instead, I shall summarise the main aspects of his behaviour which I am well satisfied justify an award of indemnity costs under both paras (a) and (b) of the rule.

[6] When an interim order was made on 8 April 2013 restraining further publication of the information contained in the EQC spreadsheet pending the hearing of an interim injunction application, Mr Krieger published a release on his website in which he disagreed with the making of the order, but said he would respect it because he “steadfastly believed in the principle that upholding the rule of law is sacrosanct”.

[7] The following day, however, after the application for an interim injunction had been heard in Mr Krieger’s absence and an interim order made, there was an abrupt change in Mr Krieger’s attitude. He rejected the decision, characterising it as beyond jurisdiction and unlawful. He added that he would release the entire

_{spreadsheet database within 24 hours, whereas previously Mr Krieger’s approach}

¹ R 14.6(1)(b).

had been to only supply data relating to individual householders upon application. This reversal was a direct affront to the authority of the Court.

[8] Similar conduct followed over a period of several months. This included personal denigration of counsel acting for the Solicitor-General, attacks upon the independence and integrity of the judges involved in dealing with the case, threats to release further EQC confidential information held by Mr Krieger (as an ex-employee of the Corporation) if the contempt proceeding was not dropped, and responding to the decisions granting a final injunction and finding Mr Krieger in contempt of Court by publishing additional hyperlinks to enable persons to access the EQC spreadsheet. It is difficult to imagine more obvious and wilful disobedience of Court orders, and for that matter more improper behaviour in the context of a Court proceeding.

[9] For completeness I note that Mr Krieger’s behaviour also extended to avoiding service when a process server endeavoured to effect personal service in Te Anau, participation in a subsequent judicial telephone conference on 28 August

2013, but failing to appear at the contempt hearing so that formal proof of the

Solicitor-General’s case was required.

The award

[10] Indemnity costs are sought in relation to the contempt application alone. The claim for fees is broken down as follows:

Investigation and monitoring the weblog $1075.50

Correspondence with Mr Krieger $653.90

Commencement of the contempt proceeding (including filing the application and affidavit evidence)

Preparation for, and attendance, at the hearing in

Invercargill (for one counsel)

$33,029.85



$13,485.50

Total $48,244.75

[11] In addition, disbursements totalling $1874.53 for filing fees, service costs, travel and accommodation (for one counsel) are sought.

[12] I am satisfied that the amounts claimed were reasonably incurred and, accordingly, I award indemnity costs and disbursements in the total sum of

$50,119.28.

Solicitors:

Crown Law Office, Wellington