NICHOLLS V AIRWAYS CORPORATION OF NEW ZEALAND HC TAU CIV-2010-470-586

NICHOLLS V AIRWAYS CORPORATION OF NEW ZEALAND HC TAU CIV-2010-470-586 31 October 2011IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYCIV-2010-470-586BETWEEN GRANT STANLEY NICHOLLSPlaintiffAND AIRWAYS CORPORATION OF NEWZEALANDDefendantHearing: (on papers)Appearances: Plaintiff in personK Murray for the DefendantJudgment: 31 October 2011 at 4:00 PMJUDGMENT OF WOODHOUSE J (Costs)This judgment was delivered by me on 31 October 2011 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarCounsel / Solicitors / Parties:Mr G S Nicholls, TaurangaMr K Murray, Barrister, WellingtonMs H Cruse, Manager Legal Services and Company Secretary, Airways Corporation of NZ, Wellington (instructing solicitor)[1] The defendant has sought costs on a 2B basis. This is opposed by MrNicholls.[2] Rule 14.1(1) of the High Court Rules provides that "all matters are at the discretion of the Court if they relate to costs". This discretion is not unfettered. Itmust be exercised having regard to principles set out in the High Court Rules and theleading authorities in respect of the application of those principles. The firstrecorded principle, in r 14.2(a) is that "the party who fails with respect to aproceeding or an interlocutory application should pay costs to the party whosucceeds".[3] The defendant has succeeded in all respects. The essential question iswhether Mr Nicholls has raised matters which would justify my not applying thenormal rule that costs follow the event. Mr Nicholls has advanced a number ofgrounds in support of his opposition. I will note some of these and my conclusion inrespect of them.[4] At the outset Mr Nicholls submitted that the proceeding, in which declaratory relief was sought, was a matter of public interest. There are matters of public interest in the proceeding, but that is the case with many proceedings before a Court. This is not a case which in my judgment comes within the category of test cases for matters of wide public interest. In considerable measure, the legal foundation for claims advanced by Mr Nicholls was contrary to an existing decision of this Court –Airways Corporation of New Zealand v Geyserland Airways Ltd.1[5] Associated with the public interest submission was a submission that, although the plaintiff is Mr Nicholls, the claim had effectively been brought on behalf of, or at least with the support of, the Tauranga Airport Users Group. Associated with this was the submission that Mr Nicholls is a lay litigant. Neither of these matters justify my discretion being exercised against the successful party. What is more, if Mr Nicholls has the support of the Tauranga Airport Users Group,and the proceeding was brought in Mr Nicholls' name but for the benefit of all of the1 Airways Corporation of New Zealand v Geyserland Airways Ltd [1996] 1 NZLR 116 (HC).members of that group, that is a reason not to depart from the normal rule that costs follow the event.[6] Mr Nicholls submitted, in effect, that it was in the public interest to bring this proceeding because he and the other members of the Tauranga Airport Users Group did not understand the basis in law for certain acts of the defendants. That does notestablish a matter of public interest justifying refusal of costs.[7] Mr Nicholls advanced a number of other arguments. In considerable measure these are arguments advanced in support of the substantive claim. Thos arguments which I considered it necessary to address in the substantive judgment are against Mr Nicholls. They therefore do not provide a foundation for exercising a discretion in favour of Mr Nicholls.[8] Mr Nicholls also submitted that costs should not be allowed to the successfuldefendant because my substantive judgment did not provide answers to many of thequestions posed in Mr Nicholls' claim and in respect of which declaratory judgmentswere sought. This does not provide grounds for exercising the discretion against thesuccessful defendant. Specific questions were not answered because my conclusionwas that it was unnecessary to answer them. Moreover, and in response to somerelated submissions by Mr Nicholls, applications for declaratory judgments are notin a special class in relation to questions of costs.[9] I am satisfied that the defendant is entitled to costs as sought. There is anorder accordingly.[10] It is convenient in this judgment to deal with a separate matter raised by Mr Nicholls in his application dated 26 September 2011. This is an application for transcripts of the hearing on 18 March 2011 and of a telephone conference on 12 October 2011. There are no transcripts of either hearing. In any event, it would not be usual to release transcripts of hearings which have simply involved submissions as opposed to evidence.__________________________________Woodhouse J