REID V TARARUA DISTRICT COUNCIL AND ANOR CA CA72/05

REID V TARARUA DISTRICT COUNCIL AND ANOR CA CA72/05 20 June 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA72/05BETWEEN JAMES ROBERT REID Applicant AND TARARUA DISTRICT COUNCIL First Respondent AND THE MINISTER FOR LAND INFORMATION Second Respondent Hearing: 13 June 2005 Court: Anderson P, Chambers and O'Regan JJ Counsel: Applicant in person S G Prestney for First Respondent J A L Oliver for Second Respondent Judgment: 20 June 2005JUDGMENT OF THE COURT A We dismiss the application for special leave to appeal. B We award costs of $1500 to the first respondent, along with usual disbursements. REASONS(Given by O'Regan J)Introduction[1] This is an application for special leave to appeal out of time against a costs judgment of Ellen France J. The application was made under r 5(1) of the Court of Appeal (Civil) Rules 1997 and was filed on 28 April 2005. However, it now must be dealt with under r 29(4) of the Court of Appeal (Civil) Rules 2005, which came into force on 1 May 2005 and apply to existing proceedings (r 56).Background[2] The applicant brought judicial review proceedings in the High Court challenging a decision of the first respondent, the Tararua District Council (the Council) to sell certain land near Woodville. The second respondent was a party to the proceedings because there was a challenge as to whether the transfer ought to have been registered against the certificate of title for the land in question. The application for judicial review was dismissed by Ellen France J in a judgment dated 8 November 2004. At [173], Ellen France J dealt with costs as follows:[173] An earlier application by Mr Reid that the parties bear their own costs throughout the proceeding was unsuccessful. There is no reason for departing from the usual principle that costs follow the event. I raised the issue of costs with the parties and 2B was seen as the appropriate categorisation although Mr McNamara [counsel for the Council in the High Court] raised the possibility that an increased award might be made. I do not consider there is a basis for that. The first and second respondents are accordingly entitled to costs on a 2B basis together with any reasonable disbursements, to be determined by the Registrar if necessary.[3] The actual costs of the Council, calculated on a 2B basis, were $24,080. It also incurred disbursements of $445. The costs of the second respondent, calculated on the same basis, were $19,140, with disbursements of $130.The present application[4] The application for special leave is dated 28 April 2005, and was filed and served on the same day. Under r 6 of the 1997 Rules, which were in force at the relevant time, the appeal ought to have been brought within 20 working days after8 November 2004. Thus, the application was made about five months after the date on which the appeal ought to have been brought. [5] The applicant filed an affidavit dated 27 May 2005, in support of his application. However, this document deals for the most part with the merits of the costs award, rather than the reasons for the lateness in bringing the appeal. However, at para 8 of the affidavit, the applicant deposes as follows:Although I considered that the judgment was seriously flawed, I decided that the issue did not warrant further expenditure (both personal and by taxpayers) and that the respondents were unlikely to attract further exposure of their misdeeds by enforcing their entitlement to costs.[6] Later, he deposes that having read the judgment of the Supreme Court inWestfield (New Zealand) Limited v North Shore City Council [2005] NZSC 17, he realised that the legal issues and principles determined in that case applied to his proceedings against the Council, and that he therefore resolved to challenge the costs award. [7] In his submissions in the Court, he said that he had expected the High Court Judge to reserve costs, and allow for further submissions. However, there does not appear to have been any basis for that expectation. He also pointed out that he was not aware of the magnitude of the costs award until 22 December, when he was served with the sealed order of Ellen France J dated 14 December 2004. The schedules to this order set out the calculation of the costs for the respondents. [8] However, the delay between his receipt of the sealed order (22 December 2004) and his application for special leave (28 April) is still four months. He said that he did not seek leave to appeal earlier because he did not expect the costs award to be enforced by the Council. [9] The Council opposes the granting of special leave. It notes the five month delay, points out that the Westfield case is concerned with quite different issues from those dealt with in the decision of Ellen France J, and says that the application discloses no proper ground on which special leave to appeal could be granted. In short, the Council submits that the factors normally taken into account determiningapplications such as this one all count against special leave being granted. In particular: (a) The delay in bringing the application is considerable (five months, or four months since the time that the applicant became aware of the actual amount of costs for which he was liable); (b) There is no proper excuse for the delay; (c) No relevant subsequent events justify leave being granted (and, in particular, the Westfield decision does not provide any basis for the argument made by the applicant); (d) There is no merit in the intended appeal, the award of costs by Ellen France J being in accordance with "usual principle", as the Judge herself noted at [173]; (e) The Council would be prejudiced: it has already sought to enforce costs by serving bankruptcy notices on the applicant. [10] The second respondent abides the decision of the Court. Counsel for the second respondent, Mr Oliver, indicated that the second respondent has not sought to enforce the costs award made in its favour in the High Court.Discussion[11] We can see no basis for allowing the application in this case. The considerable delay in making the application counts against the applicant, and he has given no proper reason explaining the delay. In effect, he acknowledges that he decided not to appeal, but now has reconsidered that decision and wishes to initiate an appeal five months out of time. We do not accept that the Westfield case has any real similarity with the matters at issue in the High Court proceedings in this case, and we do not think there is any basis on which the applicant can properly claim to have had an expectation that the costs award would not be enforced against him bythe Council. Indeed, the Council's solicitors had told him in their letter of 22 December 2004 that the costs award was payable immediately. We agree with the submission made on behalf of the Council that the five factors normally considered in relation to applications for special leave all count against the applicant in this case.Result[12] Accordingly, we dismiss the application for special leave to appeal.Costs[13] As we foreshadowed at the hearing, we award costs of $1500 to the Council, along with usual disbursements. The second respondent did not seeks costs.Solicitors: Simpson Grierson, Wellington for First Respondent Crown Law Office, Wellington for Second Respondent