White v Maubach [2016] NZHC 83 (4 February 2016)

Last Updated: 31 March 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3311 [2016] NZHC 83

BETWEEN	AMANDA ADELE WHITE Plaintiff
AND	BERNIE MAUBACH First Defendant JUTTA ROSEBLATT Second Defendant JONO TODD Third Defendant MARTYN BOYCE Fourth Defendant BRYRE PATCHELL Non Party

Hearing:	On the Papers
Appearances:	Plaintiff in Person No appearance for First and Second Defendants K M Muller and T P Westaway for Third and Fourth Defendants and Non Party
Judgment:	4 February 2016

JUDGMENT OF WHATA J [COSTS]

This judgment was delivered by Justice Whata on

4 February 2016 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules

Solicitors:

Crown Law Office, Wellington

Copy to:

A A White (Plaintiff)

Registrar/Deputy Registrar
Date:

WHITE v MAUBACH [2016] NZHC 83 [4 February 2016]

[1] In my judgment of 11 November 2015 I made an order requiring the plaintiff, Ms White, to provide security for costs in respect of the proceedings against the third and fourth defendants in the sum of $34,758. I resolved, in short, that Ms White’s claim had little or no prospect of success against those two defendants and that therefore they were entitled to security for costs.

[2] The third and fourth defendants now seek costs in accordance with r 14.8 of the High Court Rules on a 2B basis with disbursements.

[3] Ms White opposes the application for costs on the basis that Crown counsel knew that the third and fourth defendants were subject to immunity in terms of the plaintiff’s claim and that this was not brought to her attention until effectively the hearing on the application for security. She submits that “Crown counsel’s conduct towards the plaintiff is akin to a cat toying with its prey before making the final blow”.

[4] Ms White submits that the Crown should have acted earlier to resolve the position given that “the plaintiff’s proceedings were brought under a civil jurisdiction claim and thus by default was doomed to fail from the very beginning given the “immunity rule” that favours Crown counsel’s clients”.

[5] Ms White also refers to the following observation by Lord Woolf:¹

Only too often the litigant in person is regarded as a problem for Judges and for the court system rather than the person for whom the system of justice exists. The true problem is that the Court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people.

Assessment

[6] An award of costs is governed by Part 14 of the High Court Rules. This Court has a broad discretion to make an award of costs subject to the guidance afforded by the rules as a whole.

_{[7] Most relevantly, r 14.2(a) states that:}

¹ Lord Woolf Access to Justice: Interim Report to the Lord Chancellor on Civil Justice System in

England and Wales (Lord Chancellor’s Department, 1995) at 119.

The party who fails with respect to a proceeding or an interlocutory application should pay the costs to the party who succeeds.

[8] Rule 14.7 also empowers the Court to refuse to reduce costs that might otherwise be payable. It states:

14.7 Refusal of, or reduction in, costs

Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

(a) the nature of the proceeding or the step in a proceeding is such that the time required by the party claiming costs would be substantially less than the time allocated under band A; or

(b) the property or interests at stake in the proceeding were of exceptionally low value; or

(c) the issues at stake were of little significance; or

(d) although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or

(e) the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or

(f) the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i) failing to comply with these rules or a direction of the court;

or

(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii) failing, without reasonable justification, to admit facts, evidence, or documents, or accept a legal argument; or

(iv) failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

(v) failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or

(g) some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

[9] None of the matters identified at rule 14.7(a)-(f) obviously apply.

Is there some other reason pursuant to 14.7(g) to refuse or reduce the costs?

[10] With respect to the plaintiff‘s submissions, the issue of the statutory immunities was raised in the statement of defence dated 25 March 2015. In particular, three affirmative defences are raised, namely pursuant to the State Sector Act 1988 and the District Courts Act 1947 (ss 90 and 107). The submissions then filed in support of the security for costs dated 29 October 2015 set out the statutory immunities together with the reasons for the application in this case.

[11] On that basis I reject Ms White’s suggestion that she was not on proper notice of the immunities or that there was any suggestion of improper conduct of the proceedings by the Crown in relation to security for costs.

[12] Nor do I consider that access to Court considerations arise in this case. The plaintiff has had her opportunity to ventilate her claim and on payment of security may continue to do so. The plaintiff’s loss in the present application is an ordinary incident of the proceedings. While some care must be taken to avoid unfairness to lay litigants, all parties to a proceeding must assume that failure to succeed on an interlocutory application will likely result in costs. To proceed on some other basis

for lay litigants would unfairly distort the judicial process in their favour.²

[13] In these circumstances, the matters raised by the plaintiff do not trigger this Court’s limited jurisdiction to refuse and/or reduce costs in favour of the third and fourth defendants.

[14] Accordingly, there shall be an order for costs on a 2B basis on the application for security. Memoranda as to quantum should be able to be agreed. If not,

_{submissions as to quantum only must be filed within 10 working days.}

² See Oceanic Palms Ltd v Danforth Nominees Ltd CA179/05, 15 December 2005 at [18] in which the Court of Appeal stressed that: “There is no principle that distinguishes between classes of litigants. Although some indulgence may be accorded to lay litigants, in principle they should be subject to the same costs award as any other party.”