FITCHETT v BOARD OF TRUSTEES OF NELSON COLLEGE [2017] NZHC 2880

FITCHETT v BOARD OF TRUSTEES OF NELSON COLLEGE [2017] NZHC 2880 [22 November 2017]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECIV-2017-442-21[2017] NZHC 2880UNDER Judicial Review Procedure Act 2016IN THE MATTER of an Application for Review of a Decisionof the Board of Trustees to authorise theissue and service of a Trespass Noticeunder Section 4 Trespass Act 1980BETWEEN JOHN MALCOLM FITCHETTApplicantAND BOARD OF TRUSTEES OF NELSONCOLLEGERespondentOn the papersCounsel: L S B Acland for ApplicantP W David QC and M J Austin for RespondentJudgment: 22 November 2017JUDGMENT OF THOMAS J (COSTS)Introduction[1] In my substantive judgment issued on 20 July 2017, Mr Fitchett was successful in his application seeking judicial review of a decision of the Board of Trustees of Nelson College.1 Mr Fitchett was successful in one only of several pleaded grounds.1 Fitchett v Board of Trustees of Nelson College [2017] NZHC 1684.[2] In respect of costs I said:[71] Although Mr Fitchett has been successful on one of the grounds pleaded and is ultimately successful in gaining the relief sought, he has not been successful on all grounds. It may well be appropriate in all the circumstances for costs to lie where they fall. [3] The parties have been unable to agree costs and have submitted to the Court various memoranda on the issue.SubmissionsMr Fitchett[4] Mr Fitchett seeks costs on a 2B basis plus disbursements. He submits no reason exists to depart from the fundamental principle that costs follow the event. Regarding my observation that it may be appropriate for costs to lie where they fall, Mr Fitchett submits the relevant rule in the High Court Rules 2016 (the Rules) is concerned not with successful causes of action but with a successful outcome,2which he has achieved by having the trespass order quashed. It is not, he suggests, akin to a situation where both parties have obtained a measure of success.3[5] Further, Mr Fitchett submits:(a) he was willing to have the substantive matter heard on 4 May 2017 but the Board requested only the interlocutory matter be heard;(b) he admitted being disorderly at the interlocutory hearing, thereby saving the Court time;(c) he made several offers of settlement to the Board on the proviso that the trespass notice was withdrawn or suspended but the Board refused; and2 High Court Rules 2016, r 14.2(a).3 For example Packing In Ltd (in liq) formerly known as Bond Cargo Ltd v Chilcott (2003) 16 PRNZ 869 (CA).(d) the Board should not avoid costs orders merely because it is serving a public function.[6] Mr Fitchett concedes the Board is entitled to costs of $5,798 on theinterlocutory application, due to the Board's success at that hearing. He seeks costsin his favour with respect to the substantive hearing as per the following items in sch 3 to the Rules:Item Commencement costs1 Commencement of proceeding by plaintiff $ 6,690.00Case management10 Preparation for first case management conference $ 892.0011 Filing memorandum for first or subsequent case management conference or mentions hearing$ 892.0013 Appearance at first or subsequent case management conference $ 669.00Trial preparation and appearance30 Plaintiff's or defendant's preparation of briefs or affidavits $ 5,575.0033 Preparation for hearing $ 6,690.0034 Appearance at hearing for sole or principal counsel $ 1,115.00SUBTOTAL $ 22,523.00Disbursements $ 1,941.20TOTAL $ 24,464.20The Board[7] The Board contends costs should lie where they fall, or alternatively costs should be awarded partially in its favour for the following reasons:(a) the evidence required for the interim orders application on which the Board was successful outweighed that of the substantive hearing and the Board ought to receive increased costs on that application;(b) the statement of claim was entirely amended between the interim orders hearing and the substantive hearing;(c) the applicant was successful on a point which required only legal submissions rather than the extensive affidavit evidence required for other points;(d) the issue was a matter of public interest, namely the ability for bodies subject to the Local Government Official Information and Meetings Act 1987 (the Act) to make use of trespass orders, and the Board acted reasonably in the proceedings;(e) Mr Fitchett's behaviour at the Board's meetings provoked thelitigation by requiring the Board to protect its meeting procedure and is therefore relevant to the award of costs; and(f) Mr Fitchett's behaviour in the proceedings contributed unnecessarily to the Board's time and expense, including:(i) bringing a without notice application requiring significant urgent work for the Board in preparation;(ii) neglecting to disclose relevant documents to the Court for the interlocutory application and modifying his affidavit evidencethree times in response to the Board's evidence;(iii) seeking (without leave) and then abandoning cross- examination of affidavit evidence;(iv) repleading the case on substantially different terms which required substantial work beyond that which had been undertaken for the interlocutory application;(v) unsuccessfully pursuing interim orders;(vi) neglecting to disclose relevant documents to the Court in thesubstantive hearing and trying to make the Board's attempt torectify this conditional on his being able to introduce other further evidence outside the timetable;(vii) unsuccessfully pursuing additional causes of action in the substantive hearing; and(viii) rejecting the Board's 31 May 2017 offer prior to the interimapplication hearing to withdraw the trespass notice from November 2017 if the applicant would withdraw the proceeding and for costs to lie where they fall.[8] The Board rejects the suggestion it unreasonably demurred on Williams J'sinvitation to address substantive proceedings at the interlocutory hearing. Instead, the Board suggests it was a confluence of various timing matters, the case having not been finally pleaded and the Board wishing to file a statement of defence.[9] The costs and disbursements claimed by the Board in relation to the interlocutory application are set out in the following table. Counsel includes sch 3 items outside of those listed for interlocutory applications on the basis the application proceeded to a full hearing with full affidavit evidence.Item Commencement costs2 Commencement of defence by defendant $ 4,460.009 Pleading in response to amended pleading $ 1,338.00Case management10 Preparation for first case management conference (x2) $ 1,784.0011 Filing memorandum for first or subsequent case management conference or mentions hearing (x2)$ 1,784.0012 Appearance at mentions hearing or callover (x2) $ 892.00Interlocutory applications23 Filing opposition to interlocutory application $ 1,338.0024 Preparation of written submissions $ 3,345.0026 Appearance at hearing of defended application for principal counsel$ 1,115.0035 Second and subsequent counsel if allowed by court $ 557.50Trial preparation and appearance30 Plaintiff's or defendant's preparation of briefs or affidavits $ 5,575.0033 Preparation for hearing $ 6,690.0034 Appearance at hearing for sole or principal counsel $ 1,115.0035 Second and subsequent counsel if allowed by court $ 557.50SUBTOTAL $ 30,551.00DisbursementsPrincipal counsel $ 1,237.78Second counsel $ 1,009.94TOTAL $ 32,798.72[10] The Board takes issue with specific aspects of Mr Fitchett's claim for costs.These are:(a) case management conferences occurred only in relation to the interlocutory application, not the substantive hearing, because Williams J included case management directions in the interim decision; and(b) in his concession on costs in favour of the Board, Mr Fitchett fails to allocate to the Board item 9 of sch 3.Law[11] Costs are at the discretion of the Court, qualified by the principles in the Rules.4 The intent of the Rules is to provide reliable and expeditious costs decisions and to do justice to both parties.5 The general principle is that costs follow the event unless particular considerations indicate otherwise.6[12] Costs may be reduced or refused for a variety of reasons, including where the successful party has failed in relation to a cause of action which significantly increased the costs of the party opposing costs,7 the party claiming costs took steps or pursued arguments which lacked merit,8 or failed to admit facts or evidence4 High Court Rules 2016, r 14.1(1)–(2); and Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7]–[8].5 High Court Rules 2016, r 14.2(g).6 Rule 14.2(1)(a); and Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].7 High Court Rules 2016, r 14.7(d).8 Rule 14.7(f)(ii).without reasonable justification.9 Failing to accept a settlement offer close to the benefit obtained may also be taken into account.10Analysis[13] No issue is taken with respect to categorising the proceedings as 2B.[14] Regarding the interim proceedings, it is common ground that the Board isentitled to certain sch 3 costs, specifically items 23, 24, and 26. I accept the Board'ssubmission that it is also entitled to item 9 in relation to the repleaded statement of claim. I do not accept the Board is entitled to costs beyond those listed in sch 3 in relation to interim proceedings. To find otherwise would be against the principle that costs are to be predictable. I do, however, certify for second counsel.[15] Costs in relation to the substantive hearing are more complex. Mr Fitchettwas successful in obtaining judicial review of the Board's decision and is entitled tocosts, subject to any principled reason for reductions.[16] Mr Fitchett's success turned on a question of statutory interpretation,requiring legal submissions on whether a trespass notice under s 4 of the Trespass Act 1980 was ultra vires ss 47 and 50 of the Act. It required very limited other evidence. The Court was provided with copious affidavit evidence relating to the unsuccessful grounds for review, being improper purpose, unreasonableness, and failing to take into account relevant considerations. That evidence was in large part produced by the Board and, as the Board submits, it was therefore put to significantextra cost in preparation for the proceedings. I am not persuaded Mr Fitchett'sconcession as to the disorderly nature of his behaviour is sufficient to outweigh the additional burden placed on the Board by the additional grounds for review. I accept the increased burden on the Board is a reason to reduce any costs award in Mr Fitchett's favour.[17] Both parties made settlement offers prior to the interim and substantive hearings. Only the Board made offers which complied with r 14.10 in that the offers9 Rule 14.7(f)(iii).10 Rules 14.7(f)(v), 14.10, and 14.11(4).expressly stated they were made without prejudice save as to costs. Nonetheless, I treat the offers on behalf of Mr Fitchett as relevant under r 14.7(f)(v). The offers and counter-offers varied as time progressed. Mr Fitchett's offer of 11 May 2017included the Board withdrawing the trespass notice, Mr Fitchett giving an undertaking as to his future behaviour at meetings, and costs to lie where they fall. The ultimate offer was made by the Board to Mr Fitchett on 31 May 2017 following mediation between the parties. It included withdrawal of the trespass notice, Mr Fitchett being permitted to attend meetings (after 30 November 2017) and agree that his behaviour not prejudice the orderly conduct of meetings, and costs to liewhere they fall. In all the circumstances, neither party may benefit from the other'srejection of these offers. In effect, they cancel each other out.[18] I do not accept Mr Fitchett's behaviour prior to the hearing has any bearing on the costs award. He may have provoked the litigation but costs are not punitive inthis way. Mr Fitchett's conduct prior to the proceedings is therefore not relevant.However, conduct during the proceeding which negatively impacts on anotherparty's costs is relevant. Each of the individual conduct complaints outlined by theBoard on its own would be insufficient of itself to reduce costs but when viewed together reveal a rather unreasonable and frustrating litigant. Although I am not persuaded that those matters (disregarding matters I have dealt with separately) have made a significant contribution to increasing the Board's costs, I make a small allowance for them.[19] While the Board has acted reasonably, I do not accept it should be protected from an award of costs merely because it was carrying out its public function. The issue does have some public interest but significant private interests remain for both parties in the outcome.[20] On balance, Mr Fitchett is entitled to costs on the substantive hearing with a reduction to recognise the additional costs incurred by the Board due to the pleaded grounds for review which were unsuccessful and his somewhat unhelpful conduct during the proceedings. The reduction also recognises that case management was largely in relation to the interim proceedings on which the Board was successful. Overall, I consider a reduction of 30 per cent to be appropriate.Result[21] Costs in favour of Mr Fitchett are ordered as claimed, less 30 per cent, and less $7,693.50 in favour of the Board for the interim application. That results in a costs order of $8,072.60 in favour of Mr Fitchett.[22] Mr Fitchett is entitled to disbursements as claimed for the substantive hearing and the Board for the interim hearing.Thomas JSolicitors:Bamford Law, Nelson for ApplicantHamish Fletcher Lawyers, Nelson for Respondent