REID V NEW ZEALAND FIRE SERVICE COMMISSION HC WN CIV-2008-485-2043

REID V NEW ZEALAND FIRE SERVICE COMMISSION HC WN CIV-2008-485-2043 21 April 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2008-485-2043UNDER the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990, the Judicature Act 1908, the Judicature Amendment Act 1972, the United Nations International Covenant on Civil and Political Rights and the United Nations Convention on the Rights of the Child IN THE MATTER OF an appeal of a decision of the Human Rights Review Tribunal awarding costs BETWEEN JAMES ROBERT REID Appellant AND NEW ZEALAND FIRE SERVICE COMMISSION Respondent Hearing: 23 March 2009 Counsel: Appellant in person P A McBride for respondent Judgment: 21 April 2009RESERVED JUDGMENT OF DOBSON J[1] This is an appeal against an award of costs made by the Human Rights Review Tribunal (the Tribunal) against the appellant (Mr Reid), and in favour of the respondent (the Fire Service). The costs order of $3,000 was made by the Tribunal after Mr Reid had pursued an unsuccessful appeal to the Tribunal, from a ruling by the Privacy Commissioner upholding privilege in relation to documents that Mr Reid had sought, both from the Fire Service and also from the Crown Law Office. His request for personal information related to work done by the Crown Law Office inproceedings it commenced in the name of the Attorney-General, seeking to have Mr Reid declared a vexatious litigant. The Tribunal had upheld the entitlement to claim privilege as a ground excepting both the Crown Law Office and the Fire Service from providing the withheld information to Mr Reid. [2] Mr Reid also pursued an appeal against the Tribunal's substantive decision. This separate appeal against its subsequent costs decision managed to get ahead of the substantive appeal in terms of the allocation of fixtures, largely because of delays on Mr Reid's part in having the substantive appeal ready for argument. Accordingly, when this appeal was originally called for argument on 4 March 2009, I adjourned it for argument until after I was able to hear the substantive appeal on 23 March 2009. I have settled my reasoning in this costs appeal only after considering all arguments in the substantive appeal, the judgment in which is Reid v Crown Law Office and Privacy Commissioner HC WN CIV-2008-485-1203 21 April 2009. [3] In part because the Fire Service has been proactive in pursuing costs against Mr Reid when he is unsuccessful in litigious initiatives against them, Mr Reid discontinued the substantive appeal as against the Fire Service. In the course of his oral submissions on this costs appeal, he identified a range of reasons why it was unnecessary to pursue the substantive appeal against the Fire Service. He also relied on these as reasons why the Fire Service ought not to have been awarded costs by the Tribunal in the first place. [4] For the Fire Service, Mr McBride submitted that the consequences of abandoning the substantive appeal against the Fire Service inevitably reduced the scope of the appeal against the Tribunal's exercise of its costs discretion to a very narrow ambit. Abandonment of the appeal meant acceptance by Mr Reid of the Tribunal's decision upholding the grounds on which the Fire Service had resisted providing Mr Reid with the personal information. It followed from that substantive decision that it was open to the Tribunal to exercise its discretion on costs on the usual basis, ie that costs follow the event. In that case, Mr Reid now had to accept that the Fire Service was entitled to costs, and he could only argue about the Tribunal exercising its discretion as to quantum on some wrong basis.[5] However attractive that analysis may appear in confining the scope of the present appeal, and without rejecting the prospect that it will be determinative, or at least influential, in the ultimate outcome, I do not consider it appropriate to confine the analysis of the matters arising on the appeal in that way. This is but one of a substantial number of chapters in Mr Reid's litigious campaigns, and substantial judicial resources are being committed to considering and determining diverse propositions advanced by him in numerous proceedings. I consider it appropriate to comment on at least the more prominent of the arguments he advanced, not in any way to encourage further litigation but, to the contrary, to demonstrate that his arguments have been considered thoroughly. I do so in part in the hope that it will engender an appreciation that he has "had his day in Court" rather than prolonging any frustration (whether objectively justified or not) that he has not been adequately heard. [6] The nature of the discretion vested in the Tribunal when dealing with costs has been described by Harrison J in Haydock v Gilligan Sheppard HC AK CIV- 2007-404-2929 and CIV-2008-404-1240 11 September 2008 at [38] in the following terms:(1) the Tribunal's power under s 85(2) to award costs is largely unfettered but is to be exercised judicially; (2) reference to High Court or other costs scales are useful as a guide only; (3) an award of costs may be reduced in appropriate circumstances; (4) an assessment of costs takes account of the relevant features of each particular case; and (5) settlement offers are a relevant consideration. I would add (6), and most importantly, that the Tribunal usually finds costs should follow the event and in an amount reflecting a reasonable contribution to the costs actually incurred by the successful party.[7] On appeal, this Court should not interfere with the exercise of such a discretionary power unless the Tribunal's decision is plainly wrong or there has been an error of principle or insufficient or improper weight has been given to any relevant factor: Blackstone v Blackstone (2008) 19 PRNZ 40 (CA) at [8]. [8] Mr Reid argued that he should not have been liable for costs when he had "won the battle but lost the war". Part of his argument before the Tribunal was that the Privacy Commissioner had erred in upholding the Fire Service's entitlement to privilege on the basis that Fire Service communications with the Crown Law Officerepresented solicitor-client communications. The Privacy Commissioner's decision of 17 July 2007 was expressed in terms that privilege could be maintained on the basis of lawyer-client communications. [9] Although outcomes on interlocutory steps in proceedings, or success on arguments that vindicate the position of the party which ultimately loses, may go to the discretion on quantum of costs, those occurrences do not influence the basic principle. That is, that costs generally follow the ultimate outcome. Here, Mr Reid's aim was to get access to personal information. He was declined the information on the basis that the Fire Service was entitled to invoke privilege. That position was upheld by the Privacy Commissioner and subsequently also upheld by the Tribunal, even although the nature of the Fire Service's participation in privileged communications was recognised as being different. [10] The other principle underpinning the approach to costs by Courts and Tribunals in New Zealand is that generally the losing party is to make a reasonable contribution, but not to indemnify the winning party, for all costs incurred – see r 14(2)(d) and (e) of the High Court Rules. That means that involvement by a defendant in claims in many jurisdictions, where the defendant's position is ultimately vindicated, still involves material cost to the defendant party. Here, defence of the Fire Service's position before the Tribunal appears to have cost it some $11,000, of which Mr Reid was ordered by the Tribunal to contribute $3,000. There is no error in principle in the Tribunal ordering costs against Mr Reid where he was unsuccessful in pursuing the outcome sought, even although he established that the previous decision was founded on a mischaracterisation of the relationship between the Fire Service and the Crown Law Office. [11] Having deferred consideration of the arguments Mr Reid presented on this appeal until I had considered the substantive appeal, it is appropriate to refer to that judgment in relation to Mr Reid's contention that the Tribunal also confused the character of the relationship between the Fire Service and the Crown Law Office. That criticism is wrong, essentially for the reasons expressed in paragraphs [17] to [20] of my substantive decision. The short point is that the Tribunal correctly characterised the Fire Service as a third party with whom Crown Law Officesolicitors had relevant contact in the course of discharging obligations to the Attorney-General, as client of the Crown Law Office. [12] Nor is there any validity in the argument that because the Fire Service claimed indemnity costs when it was held not to be entitled to costs on that basis, it should therefore be disqualified from recovering costs on any lesser basis. [13] Mr Reid also argued a range of points that can be summarised in the proposition that the Fire Service had brought the dispute about refusal to disclose personal information upon itself, and should therefore not be compensated for any part of the costs it had to incur in defending its position. This started with the notion that the Fire Service had originally encouraged the Crown Law Office to consider proceedings against Mr Reid to have him declared a vexatious litigant: subsequent withdrawal by the Crown Law Office of proceedings commenced for that purpose implicitly recognised that they ought not to have been commenced in the first place, so that the Fire Service were the authors of their own misfortune and ought to bear the costs of what followed from their original initiative. Further, Mr Reid complained about a lack of clarity in the identity of the documents he was seeking from both the Fire Service and the Crown Law Office. He suggested that if each organisation had provided a list, in the form of lists of discovered documents in litigation, then it would likely have been apparent to him that the documents he was seeking from the Fire Service were no more than duplicates of those he was seeking from the Crown Law Office, so that he could have dispensed with the involvement of the Fire Service at an earlier point in time. [14] As to the first point, neither the Tribunal nor I can reasonably be expected to form a view on the relative extent of justification for any suggestion that was originally made by the Fire Service to the Crown Law Office, that it investigate the prospect of proceedings against Mr Reid seeking to have him declared a vexatious litigant. Statistically, Mr Reid had pursued some 18 sets of proceedings involving the Fire Service that in some way bore upon the termination of his employment, together with a further eight sets of proceedings arising out of a Family Court dispute in which he had been involved. I do not accept that the subsequent withdrawal of the vexatious litigant proceedings by the Crown Law Officenecessarily establishes that they were ill-conceived at the outset. Nor is it necessary or appropriate to consider whether changes in circumstances, and particularly changes in Mr Reid's attitude to some or all of those proceedings after the vexatious litigant proceedings were commenced, may not have been a sufficient justification for their withdrawal. [15] The scope of the present dispute is confined to the correctness of the Fire Service's grounds for resisting disclosure of personal information. Pursuit of that information was an initiative commenced by Mr Reid, and pursued separately against the Fire Service as well as the Crown Law Office. The Fire Service would have been in dereliction of its responsibilities if it did not respond, and the terms of its response have been vindicated by the decision of the Tribunal. [16] Equally, Mr Reid cannot avoid the conventional consequences of losing the appeal by arguing that a step which the Fire Service had no obligation to take, should in fact have been taken by the Fire Service and thereby lessened the extent of involvement required of it in the appeal before the Tribunal. Given the extremely protracted history of Mr Reid's litigation against the Fire Service, it is extraordinary to suggest any expectation that the Fire Service ought to voluntarily undertake additional work, for which there was no precedent and no requirement, in order to help Mr Reid understand the extent of the information that he was seeking, and which the Fire Service was resisting providing to him. [17] Mr Reid also repeated some aspects of the ad hominem criticisms against the members of the Tribunal, and in particular its Chair, that had been advanced as part of his arguments as to why the substantive outcome was wrong. Quite apart from Mr McBride's point that, in the absence of an appeal against the Tribunal's decision so far as it related to the Fire Service's conduct, Mr Reid had to accept the outcome, I am now positively satisfied that the Tribunal's decision was correct in law. [18] I need also to be mindful of the outcome on the substantive appeal, to the extent that I have varied the outcome before the Tribunal. That is in relation to the obligation I found the Crown Law Office has to redact parts of the documents I described in the substantive appeal decision as the "disputed CLO file notes" – see[31] to [47] of my substantive decision. That is a change in outcome procured as a result of the arguments on behalf of the Privacy Commissioner. Mr Reid did not add anything of material assistance on that aspect of the appeal and I do not see that variation in outcome as affecting the outcome of this appeal on costs. [19] None of Mr Reid's arguments raise any realistic prospect that the Tribunal addressed the discretion it has on costs on a wrong principle, or indeed that it came to the conclusion that the Fire Service was entitled to an award of costs in any way in error. [20] Both on the decision to award costs and their quantum, Mr McBride emphasised the discretionary character of the Tribunal's power. As to the quantum of costs awarded, Mr McBride defended $3,000 as certainly no more than an appropriate contribution for a full day hearing plus five telephone conferences of an interlocutory type. I agree and find no basis to adjust the quantum ordered. [21] Accordingly, the appeal is dismissed. [22] A further issue arises in respect of costs on argument of this appeal. I was substantially assisted by Mr McBride's written submissions, and was grateful for his patience in the greater time involved on behalf of the Fire Service in responding when this costs appeal was eventually dealt with at the conclusion of the argument of the substantive appeal. However, I do not consider it appropriate to attribute any larger costs' obligation to Mr Reid on that account. The sequence of arguing the two appeals was altered by me because of unease at the prospect of hearing the costs appeal before the appeal from the substantive decision to which the costs related. I am, however, satisfied that a further award of costs, in accordance with 2B scale provisions, is appropriate in favour of the Fire Service. That is to be assessed on the basis of a half day hearing.Dobson JSolicitors: James Reid, 2 Vogel Street, Woodville McBride Davenport James, Wellington for respondent