ROGER JOHN PAYNE V THE NEW ZEALAND NATIONAL PARTY HC TIM CIV 2008-476-000125

ROGER JOHN PAYNE V THE NEW ZEALAND NATIONAL PARTY HC TIM CIV 2008-476-000125 4 June 2008IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY CIV 2008-476-000125BETWEEN ROGER JOHN PAYNE Applicant AND THE NEW ZEALAND NATIONAL PARTY Respondent Hearing: 18 April 2008 Counsel: R J Payne In Person, Applicant P T Kiely and D Erickson for Respondent Costs Judgment: 4 June 2008COSTS DECISION OF PANCKHURST J[1] In my judgment of 1 May 2008 I reserved the question of costs to enable memoranda to be filed. This has occurred. The National Party seeks costs assessed on a 2B basis and totalling $12,800, together with disbursements in the sum of $1,067.30. [2] Mr Payne, however, contends that the case is not one for an award of costs. His wide-ranging submission includes numerous criticisms of the conduct of counsel, criticisms of the hearing process and the decision which resulted, criticisms of the amount sought by way of costs and an overarching contention that he was "the messenger" running a "genuine public interest case". This last consideration is said to outweigh all others and to dictate that an award is inappropriate. [3] It is appropriate to first deal with the public interest contention. It is well- settled that no costs, or a reduced award, may be appropriate where an unsuccessfulparty has brought a case involving a genuine and legitimate public interest element. However, this is only so where the claim was not brought out of any motive of personal gain: NZ Mäori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525. [4] I do not consider that this is public interest litigation. Mr Payne did not initiate the case in order to clarify some legitimate public law concern. His motivation was to open the way for his selection as the National Party candidate for the Selwyn electorate. The public interest dimension, relating to the correct interpretation of s71 of the Electoral Act 1993, was incidental. I consider, therefore, that this is not a case to disallow, or reduce, costs on public interest grounds. [5] However, there remains a general aspect of the proceeding which does influence my approach to the question of costs. On 19 March 2008 Mr Payne applied for an interim injunction to halt the Selwyn candidate selection process. The matter was heard the following day as a matter of urgency and by telephone conference. I refused injunctive relief, largely in reliance upon Peters v Collinge[1993] 2 NZLR 554 (HC). [6] However, in a judgment dated 3 April 2008 (delivered soon after the Easter vacation) I recalled the earlier decision. I did so because s71 had not been brought to my attention at the earlier hearing and because, for the reasons given, I was satisfied that this section arguably called in question the validity of the National Party rule by which Mr Payne was rejected by the National Party Board as a candidate for Selwyn. The recall decision prompted the grant of an interim injunction. [7] But, the National Party applied to rescind or vary the interim injunction decision pursuant to r259 upon the basis that the decision was made in circumstances of urgency and without the benefit of full argument. A full in-court hearing on 18 April resulted. On 1 May I rescinded the previous interim order, in light of my conclusion following full argument that there was not a serious question to be tried. [8] Against this background I am satisfied that costs should only be awarded in relation to the final hearing. Had s71 been drawn to my attention at the firsttelephone hearing (as I think it should have been), I am confident that the need for full argument in open court would have been recognised at the outset. This would have avoided the recall hearing and prompted the realisation that a full hearing in open court was necessary. [9] In these circumstances I shall assess costs as per the claim on behalf of the National Party, but only by reference to the final five items claimed (commencing 11 April 2008). The total claimed from this date is $8,680, including an allowance of $800 for the appearance of second counsel at the final hearing. Save for the claim in relation to second counsel, I allow the amount sought, being $7,880. In addition disbursements are allowed as claimed, but adjusted to reflect the involvement of senior counsel alone. If need be, the revised calculation of disbursements is to be fixed by the Registrar. [10] On 9 May the parties participated in a telephone conference concerning the future of the substantive claim. It seemed to me that the result in relation to the interim injunction application was likely to be determinative of Mr Payne's case, but he assured me otherwise. Mr Kiely indicated that if the substantive claim was not to be abandoned, it was likely that the National Party would move to strike it out. Neither party has taken a further step in the proceeding. There is a need for finality. I direct a further telephone conference on Thursday, 12 June 2008 at 9.00 am._________________________________________________________________________________ Solicitors: Applicant - Mr R J Payne, Willowbank Farm, 73 Muff Road, Orari RD 26, TEMUKA Kiely Thompson Caisley, Auckland for Respondent