WARD v LOCHORE [2020] NZCA 23

WARD v LOCHORE [2020] NZCA 23 [24 February 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA465/2019[2020] NZCA 23BETWEEN RUSSELL STUART WARDApplicantAND ANGUS JAMES LOCHORERespondentCourt: Courtney and Collins JJCounsel: Applicant in personW C Pyke for RespondentJudgment:(On the papers)24 February 2020 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal under r 29A of the Courtof Appeal (Civil) Rules 2005 is declined.B The respondent is entitled to costs in this Court for a standard applicationon a band A basis.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Ward has applied for an extension of time under r 29A of the Court ofAppeal (Civil) Rules 2005 (the Rules) to pursue his appeal from a judgment of Katz J,delivered in the High Court at Hamilton on 12 June 2019.1[2] Mr Ward filed an application for an extension of time to appeal on12 September 2019 as he was 46 days out of time to appeal the High Court judgment.[3] In the High Court, Katz J struck out proceedings brought by Mr Ward againstMr Lochore following the termination of Mr Ward's lease of commercial premises.The High Court Judge was satisfied that none of Mr Ward's causes of action againstMr Lochore were tenable. Mr Ward does not wish to challenge the substance of theHigh Court judgment. His appeal is confined to the decision of Katz J to award costsand disbursements in favour of Mr Lochore on a scale 2B basis.Application[4] Mr Ward, who is not represented, wishes to argue that he should not be requiredto pay costs in the High Court. This is because he could not be awarded costs inthe event that he succeeded as he was not represented by counsel, and that this givesrise to judicial discrimination and offends the doctrine of equality before the law.Mr Ward says the High Court Judge should have ordered the parties meet their owncosts.Governing principles[5] In Almond v Read,2 the Supreme Court explained that the following criteriaapply when considering an application for an extension of time under r 29A of theRules:1 Ward v Lochore [2019] NZHC 1314.2 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].(a) the length of the delay;(b) the reasons for the delay;(c) the conduct of the parties;(d) any prejudice or hardship to the respondent; and(e) the significance of the issues raised by the appeal.[6] The Supreme Court explained that a decision to refuse an extension of timemay be based on the absence of merits to the appeal only in cases "where the appealis clearly hopeless".3 The Supreme Court cautioned against the use of the power torefuse an application under r 29A "as a mechanism to dismiss apparently weak appealssummarily".4Analysis[7] Applying the criteria in Almond v Read, we are satisfied:(a) that the delay in this case is not particularly egregious and is in alllikelihood due to Mr Ward's lack of familiarity with the Rules;(b) there does not appear to be anything about the way the parties haveconducted themselves which has any meaningful impact upon ourdecision;(c) the prejudice to Mr Lochore is that if the application is granted he willincur further delays in being paid his costs; and(d) there is nothing significant in the issues raised by the appeal.3 At [39(c)].4 At [39(c)].[8] This is one of those rare cases identified by the Supreme Court in whichthe lack of merits to Mr Ward's appeal determine his application for an extension oftime.[9] There are three aspects to Mr Ward's appeal that create insurmountable barriersfor him:(a) The High Court's costs regime is prescribed by the High Court Rules2016. Those rules are underpinned by the "general principles" thatthe unsuccessful party shall pay costs to the successful party and thatthe rules provide a predictable, consistent and expedient method ofdetermining costs.5(b) The Supreme Court has explained that it is a "primary rule" that a laylitigant in New Zealand is not entitled to recover costs against anunsuccessful party.6 While the Supreme Court left open the issue as towhether or not it is possible for the primary rule to be departed from inexceptional circumstances, the longstanding practice in New Zealandis that successful lay litigants are not entitled to costs.(c) A costs decision involves the exercise of judicial discretion.Accordingly, an appellate court should not interfere with a costs orderunless satisfied the Judge acted on a wrong principle, failed to take intoaccount some relevant consideration, took into account an irrelevantconsideration or was plainly wrong.7[10] The converse position of the primary rule, which we have summarised at [9(b)]is that there is no reason in principle why costs should not be ordered against anunsuccessful lay litigant provided all relevant considerations are taken into accountbefore the court makes such an award. It is also important for the courts to refrainfrom punishing an unsuccessful lay litigant solely on the basis that they have electednot to have legal representation.5 High Court Rules 2016, r 14.2(a) and (g).6 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55].7 May v May (1982) 1 NZFLR 165 (CA) at 170.[11] In the present case, Katz J, after having concluded that Mr Ward's causes ofaction against Mr Lochore were "untenable", took the entirely orthodox step ofawarding costs and disbursements in favour of Mr Lochore.[12] There is nothing discriminatory in the costs order made by Katz J. Nor is thereany basis for Mr Ward's complaint that the "primary rule" concerning costs somehowundermines the principle of equity before the law. Had Mr Ward engaged counsel andsucceeded in the High Court, he would have been entitled to costs. The fact he choseto not be represented and lost does not mean that he was treated unfairly or thatthe costs regime creates inequality before the law.[13] Mr Ward cannot point to any basis for suggesting that Katz J acted on a wrongprinciple, that she took into account an irrelevant factor, failed to take into accounta relevant factor or that her judgment was plainly wrong. In these circumstances weare satisfied Mr Ward's appeal cannot possibly succeed. It is therefore appropriatethat his appeal be brought to an end.Result[14] The application for an extension of time under r 29A is declined.[15] Mr Lochore is entitled to costs in this Court for a standard application ona band A basis.