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High Court of New Zealand Decisions |
Last Updated: 31 August 2018
ORDER PROHIBITING PUBLICATION OF NAMES OF APPLICANT UNTIL FURTHER ORDER
OF THE COURT
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2018-404-1527
[2018] NZHC 2120 |
BETWEEN
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N
Applicant
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AND
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RADIO NEW ZEALAND LIMITED
Respondent
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On the papers:
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Counsel:
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W J Tumai for Applicant R Stewart for Respondent
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Judgment:
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17 August 2018
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JUDGMENT OF CHURCHMAN J (COSTS)
[1] On 19 July 2018, I gave an oral decision granting the applicant an interim injunction restraining a recording of a restorative justice conference from being published. Effectively, the application was dealt with on a Pickwick basis. Counsel for the respondent was able to participate by means of telephone link to the hearing. He had not been formally served but he had been emailed a copy of the injunction application.
[2] The applicant now applies for costs. Counsel for the applicant initially filed an application seeking costs in the sum of $2,230 (one full day on a 2B basis) and disbursements, but provided no schedule of disbursements. He then filed an amended application seeking an uplift on scale costs on the basis that the respondent had failed
N v RADIO NEW ZEALAND LIMITED (COSTS) [2018] NZHC 2120 [17 August 2018]
to co-operate with attempts to resolve the issue of protection of privacy interests. The amended application did not contain a schedule of disbursements either.
[3] The respondent disputes the costs application, submitting that this is a case where, given the circumstances in which the interim injunction was granted, there should be no order as to costs or, at least, costs should be reserved.
[4] Under the High Court Rules, all matters relating to costs are at the discretion of the Court1 but are generally to be determined having regard to the principles set out in r 14.2. These include that the party who fails with respect to an interlocutory application should pay costs to the party that succeeds2 and, so far as possible, the determination of costs should be predictable and expeditious.3
[5] Rule 14.8(1) of the High Court Rules provides as follows:
14.8 Costs on interlocutory applications
(1) Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—
(a) must be fixed in accordance with these rules when the application is determined; and
(b) become payable when they are fixed.
[6] The commentary in McGechan on Procedure states that:4
... the rule recognises that the costs of an interlocutory application are best fixed contemporaneously by the judge or associate judge who decides it. Where, for special reasons, costs are reserved, it may be wise to fix their quantum, or at least to record the hearing time involved and perhaps stipulate the appropriate time band ...
[7] The respondent, however, says that no statement of claim has been filed and, until the issues are defined in proper pleadings, it is premature to fix costs. Counsel submits he is unable to determine whether to move to set aside the interim order in accordance with leave specifically reserved to it until a statement of claim is filed.
1 High Court Rules, r 14.1.
2 Rule 14.2(a).
3 Rule 14.2(g).
4 McGechan on Procedure (looseleaf ed, Brookers) at [HR 14.8.04].
The respondent challenges the assertion that the restorative justice conference or its contents are confidential, and claims Toll Networks (NZ) Ltd (Toll) prevailed on the applicant to apply for interim relief in order to avoid publicity.5
[8] Toll, having received a copy of the memorandum in which this accusation was made, responded.6 It acknowledged maintaining communication with the applicant, but only as it wanted to obtain confirmation and assurance that any recording that occurred during the restorative justice conference was done without knowledge, and was understood by the applicant to be inappropriate and not consented to.7 In doing so, Toll learnt that the applicant was contemplating obtaining an injunction and that counsel for the applicant was involved. This information was passed on to counsel for Toll, who then communicated with counsel for the applicant and indicated a willingness to attend court at the same time in support.8 Counsel for the applicant did not have an instructing solicitor and sought permission to use counsel for Toll’s firm as its instructing solicitors, which Toll was willing to accommodate in the circumstances.9 Counsel for Toll denies there was any coercion, stating:10
... there was no prevailing upon by Toll that [counsel] is aware of on the applicant for interim relief, including with the object of avoiding publicity that an application for Toll itself may have attracted.
[9] I accept there is nothing in the allegation made by the respondent that Toll coerced the applicant into filing.
[10] The applicant is seeking the total sum of $2,230 which counsel states as being for the single day preparation of documents, interlocutories and client meetings. The appropriate steps under schedule 3 of the High Court Rules are as follows:
7 At [3].
8 At [4].
9 At [5].
10 At [6].
Scale costs: Schedule B – daily rate is $2,230
Description
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Time Allocation
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Amount
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22
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Filing interlocutory application
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0.6 day
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$1,338.00
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24
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Appearance at hearing
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0.25 day
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$557.50
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Total time
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0.85 day
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$1,895.50
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[11] As to increased costs, these may be ordered in relation to any step in a proceeding if some reason exists which justifies the Court making an order for increased costs.11 While the applicant is arguing for an uplift on the basis that the respondent failed to co-operate with its attempts to resolve the issue, the respondent disputes this, and claims that there was never any correspondence with or reference to the applicant until a letter sent on 19 July. On the facts before me, I am not satisfied that there is any special reason that would justify an order for increased costs.
[12] In the circumstances, standards costs under r 14.3 are fixed at $1,895.50. No schedule of disbursements has been filed, so no disbursements other than the filing fee of $200 are awarded.
[13] I therefore make an order that the respondent pay the applicant costs and disbursements in the total sum of $2,095.50.
Churchman J
Solicitors:
Simpson Grierson, Auckland for Applicant
Izard Weston Lawyers, Wellington for Respondent
11 Rule 14.6(3)(d).
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