NOTTINGHAM v ALLIED PRESS LIMITED [2018] NZCA 619

NOTTINGHAM v ALLIED PRESS LIMITED [2018] NZCA 619 [20 December 2018]ORDER PROHIBITING PUBLICATION OF EVIDENCE ANDSUBMISSIONS CONTAINED IN THIS JUDGMENT PURSUANT TO S 205 OFTHE CRIMINAL PROCEDURE ACT 2011 UNTIL FINAL DISPOSITION OFCRI-2015-004-3536.NOTE: HIGH COURT AND DISTRICT COURT ORDERS PROHIBITINGPUBLICATION OF THE EVIDENCE AND SUBMISSIONS FILED IN THISMATTER AND REFERRED TO IN THOSE JUDGMENTS UNTIL FINALDISPOSITION OF CRI-2015-004-3536 PURSUANT TO S 205 REMAIN INFORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA176/2018[2018] NZCA 619BETWEEN DERMOT GREGORY NOTTINGHAMApplicantAND ALLIED PRESS LIMITEDFirst RespondentPETER GEORGESecond RespondentCourt: Kós P, Woolford and Dunningham JJCounsel: Applicant in personW J Wright for First RespondentSecond Respondent in personJudgment:(On the papers)20 December 2018 at 11.00 amJUDGMENT OF THE COURTA The application for costs is declined.B Order prohibiting publication of evidence and submissions contained inthis judgment pursuant to s 205 of the Criminal Procedure Act 2011 untilfinal disposition of CRI-2015-004-3536.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] On 2 November 2018, we declined leave to Mr Nottingham to appeal1 fromthe judgment of Davidson J dated 8 March 2018.2 In that decision the Judge dismissedan appeal by Mr Nottingham from a costs award in the District Court made in favourof Allied Press Ltd and Mr George following Mr Nottingham's withdrawal of aprivate prosecution he initiated against them.3 We found that the issues raised byMr Nottingham were not issues of general principle or of general importance inthe administration of the criminal law. Nor were we satisfied that a miscarriage ofjustice may have occurred or may occur unless a second appeal was heard.[2] Allied Press Ltd now seeks costs against Mr Nottingham, notwithstanding hisrecent bankruptcy.[3] Costs applications on criminal appeals are governed by s 8 of the Costs inCriminal Cases Act 1967. Under s 8(1) the Court may make such order as to costs asit thinks fit. There is, however, no presumption for or against the award of costs toa successful defendant.4 The maximum fee payable in respect of an application forleave to appeal is $226 for each half day occupied in court,5 unless the court is satisfiedthat, having regard to the special difficulty, complexity, or importance of the case,the payment of greater costs is desirable.6[4] In the District Court, Allied Press Ltd was awarded costs in excess ofthe statutory maximum because of the method of prosecution, disclosure delays, filingof irrelevant material, unnecessary adjournments and the failure to consult aroundthe withdrawal of charges. These factors do not apply to the application for leave toappeal. Allied Press Ltd does not advance any other factors which makethe application for leave to appeal of special difficulty, complexity or importance.1 Nottingham v Allied Press Ltd [2018] NZCA 474.2 Nottingham v Allied Press Ltd [2018] NZHC 354.3 Nottingham v Allied Press Ltd [2017] NZDC 6211; and Nottingham v Allied Press Ltd [2017]NZDC 23082.4 Section 8(2).5 Costs in Criminal Cases Regulations 1987, sch 1, pt 1, sub-pt C.6 Costs in Criminal Cases Act 1967, s 13(3).There is, therefore, no jurisdiction for awarding costs in excess of the statutorymaximum.[5] The sole question is whether an award of $226 is appropriate. There is nopresumption for or against. Although the questions on which Mr Nottingham soughtleave were unlikely to be successful from the beginning, they were not so hopeless ormaliciously advanced to justify exercising our discretion to order costs against him asprosecutor.[6] The application for costs in this Court is declined. Costs in the High Courtwere reserved and should be determined in that Court if an application is made.Result[7] The application for costs is declined.[8] As the High Court did below, we make an order prohibiting publication ofevidence and submissions contained in this judgment pursuant to s 205 of the CriminalProcedure Act 2011 until final disposition of CRI-2015-004-3536.Solicitors:Wilkinson Rodgers Lawyers, Dunedin for First Respondent