CURTIS V THE MUSEUM OF TRANSPORT & TECHNOLOGY SOCIETY HC AK CIV-2010-404-6476

CURTIS V THE MUSEUM OF TRANSPORT & TECHNOLOGY SOCIETY HC AK CIV-2010-404-6476 9 November 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-6476BETWEEN ALAN JAMES CURTISApplicantAND THE MUSEUM OF TRANSPORT &TECHNOLOGY SOCIETYRespondentHearing: By memorandaCounsel: D Grove for applicantJ Anderson for respondentJudgment: 9 November 2011 at 9:30 AMJUDGMENT OF LANG J[as to costs on discontinuance]This judgment was delivered by me on 9 November 2011 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] In this proceeding the applicant, Mr Curtis, sought judicial review of severaldecisions made by the respondent Society. He initially applied for interim relief, butlater withdrew that application. The Society for its part belatedly filed a protest tojurisdiction but ultimately did not proceed with it. The proceeding was initiallyallocated a three hour fixture on 9 February 2011. This was subsequently changed toa two-day trial commencing on 21 September 2011.[2] The Society filed its affidavits in opposition to the application for judicial review on or about 21 July 2011. Just over a month later, on 23 August 2011, Mr Curtis discontinued the proceeding. No agreement having been reached as to costs,the Court is now required to determine that issue on the basis of the memoranda filedby counsel.The arguments[3] The Society contends that it should receive an award of costs calculated on aCategory 2B basis, but increased to reflect the fact that Mr Curtis took unnecessarysteps in the proceeding. It says that he applied for interim relief when there were noproper grounds for doing so, and he also unnecessarily contributed to the costs of theproceeding by filing an amended statement of claim. This put the Society tounnecessary expense because it omitted several causes of action that the Society hadalready been forced to respond to. In addition, the Society contends that Mr Curtisfailed to comply with the Court's timetable directions.[4] Mr Curtis accepts that the Society should receive an award of costs on aCategory 2B basis. He contends, however, that the award should be reduced toreflect the fact that the Society only produced a critical document, namely theminutes of a meeting held by the Society on 20 September 2010, at a very late stage.Disclosure of this document was one of the catalysts for his decision to discontinuethe proceeding.DecisionIncidence of costs[5] The Society is clearly entitled to an award of costs in its favour because itultimately succeeded in the proceeding. One of the most important principlesgoverning the costs regime under the High Court Rules is that the unsuccessful partyshould be required to contribute to the costs of the successful party.1 The Societywas the successful party in this proceeding, because Mr Curtis ultimately elected todiscontinue his application for judicial review.[6] There is no basis, however, for any award of costs in respect of steps taken bythe Society in relation to the protest to jurisdiction, because the Society wasultimately the unsuccessful party in relation to that interlocutory issue.Should Mr Curtis pay increased costs to the Society?[7] The costs to be awarded in favour of the Society obviously extend to the steps that it took to oppose the application for interim relief that Mr Curtis withdrewat an early stage. I am not prepared to say, however, that Mr Curtis filed theapplication for interim relief seeking improperly to achieve a collateral object, or thatthe application was so devoid of merit that it should never have been filed. For thatreason I am not satisfied that the application for interim relief led to unnecessaryexpense for the Society sufficient to justify an award of increased costs.[8] Similarly, I do not view the filing of the amended statement of claim as providing justification for an award of increased costs. Parties to a proceeding regularly amend their pleadings as they refine their respective cases. There is nothing in the present case to suggest that this factor justifies an award of increased costs.1 R 14.2(a).[9] I reach a similar conclusion in relation to the assertion that Mr Curtisbreached the Court's timetable orders to such an extent that he should be subject toan award of increased costs for that reason. To some extent both parties failed to comply with timetable directions to which they had earlier agreed. The level of default was not, however, of such magnitude that it should result in an award of increased costs for either party.[10] For these reasons the Society has not made out a case for an award of increased costs against Mr Curtis.Should the costs payable by Mr Curtis be reduced?[11] Mr Curtis argues that the Society had an obligation to disclose the minutes of the meeting held by the Society on 20 September 2010 at an early stage. He says that his pleadings clearly signalled that the absence of any minutes taken at that meeting was a material issue. The Society did not, however, produce a copy of those minutes until it filed its evidence in opposition to the application for judicial review on 21 July 2011. Had the Society met its obligation to produce the minutes earlier, Mr Curtis contends that he may have decided to discontinue the proceeding earlier. Had that occurred, both parties would have been saved considerable expense.[12] I do not accept this submission. First, I do not accept that the Society was obliged to produce the minutes earlier than it did. So far as I can tell from the file,the parties never agreed to undertake formal discovery and inspection of each other'sdocuments. Rather, they agreed to timetables for the filing and service of their evidence in preparation for the application for interim relief and for trial.[13] I agree that it would have been preferable for the Society to have produced a copy of the minutes in October 2010 when it filed affidavits in opposition to theapplication for interim relief. Of itself, however, I do not consider the Society'sfailure to produce the document at that stage to be decisive when considering whether costs should be reduced.[14] I consider the issue of timing to be important in this context. I infer that Mr Curtis elected not to continue with his claim once he received and considered theSociety's evidence. It is likely, in my view, that he viewed the totality of the Society's evidence as providing a significant obstacle to his application for judicial review. At that point he responsibly made the decision to discontinue the proceeding. It is likely, however, that the record of the meeting on 20 September was just one of the factors that Mr Curtis took into account in reaching his decision.[15] I therefore conclude that Mr Curtis has not made out a case for reduced costs.Order[16] I direct that Mr Curtis is to pay the Society's costs other than those relating tothe protest to jurisdiction. Costs are to be calculated on a Category 2B basis,together with disbursements as fixed by the Registrar.Lang JSolicitors:Skeates Law, Dominion Road, AucklandCastle Brown, NewmarketCounsel:D Grove, AucklandJ Anderson, Auckland