AG V PALMER AND ANOR HC AK CIV 2006-404-3197

AG V PALMER AND ANOR HC AK CIV 2006-404-3197 17 April 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-3197BETWEEN THE ATTORNEY-GENERAL OF NEW ZEALAND Appellant AND GRAHAM ASHLEY ROBERT PALMER First Respondent AND BRIAN ARTHUR JACOBSON Second Respondent Appearances: A R Burns for appellant Respondent in person Judgment: 17 April 2007COSTS JUDGMENT OF ALLAN JIn accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 2.30 pm on Tuesday 17 April 2007Solicitors: Crown Solicitor, Auckland Party GAR Palmer, PO Box 5419, Wellesley St, Auckland[1] In a judgment delivered on 18 December 2006, I allowed the Attorney General's appeal against an order of the Auckland District Court which required the Attorney General to disclose to the respondent a complete copy of an application for a search warrant, sworn in respect of the respondent. I held that the document concerned was the subject of public interest privilege and that there was no jurisdiction to order production of it to Mr Palmer. [2] I ruled that the appellant was entitled to costs, and directed that the parties were to file memoranda if they were unable to agree. Memoranda have been filed in accordance with that direction. The Crown, having been successful in its appeal, claims costs against Mr Palmer of $3,040, together with disbursements of $440. Costs are calculated on a category 2B basis, that category having earlier been assigned to the proceeding by Winkelmann J on 29 June 2006. [3] Mr Palmer does not take issue with the appellant's calculations, but he says that costs ought to lie where they fall because he contends: the oversight in the District Court was due solely to the failure of Crown Counsel to present the arguments raised by Mr Burns [on appeal]. Had those arguments been presented to Judge Sharpe, then, it is submitted, that the District Court would have reached the same judgment as this Most Learned Court.[4] Mr Palmer says that costs on the appeal ought to rest where they fall. [5] Among the papers included in the bundle for the hearing of the appeal were the written submissions presented to the District Court by counsel for the appellant. At the hearing of the appeal, Mr Burns indicated that the case before the learned District Court Judge had been conducted largely as it had in this Court, including appropriate references to the leading authorities and to the important matters of principle arising. I am unable to accept Mr Palmer's submission that the appeal became necessary because of some deficiency in the way in which the appellant had conducted the case in the District Court. Moreover, Mr Palmer's submission (premised as it was on the appellant's alleged failure to advance a meritorious case to the learned District Court Judge), is completely at odds with the stance he adopted atthe hearing of the appeal. He endeavoured to support the outcome in the District Court by reference to several issues which I held to be irrelevant. His arguments were that: a) Public interest privilege could not arise unless the disclosure was made to a sworn member of the police; b) Privilege was not available by reason of the true motives of a person Mr Palmer believed to be the informer; c) That supposed informer did not appear on an official register of police informers. [6] I rejected all of those arguments without difficulty. [7] For costs purposes I simply observe that Mr Palmer cannot avoid the usual order for costs by arguing that the appellant lost in the District Court by reason of deficiencies in the argument then advanced, and at the same time seek to uphold the District Court judgment by raising a number of additional matters. [8] Had Mr Palmer chosen to abide the decision of this Court on appeal, then there may have been something in his contention that costs ought to lie where they fall. But he did not. He took an active role at the appeal hearing, so the usual costs consequences must ensue. [9] Rule 47(a) provides that ordinarily the unsuccessful party has to make a contribution to the costs of the successful party. There is no basis for departing from that general principle in this case. Mr Palmer does not challenge the appellant's calculations. Accordingly, the respondent is directed to pay costs of the appellant in the sum of $3,040, together with disbursements totalling $440, making in all the sum of $3,480.C J Allan J