Chief Executive of the Department of Internal Affairs v NZ Trustees Association Charitable Trust

[2019] NZHC 3005

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2464

[2019] NZHC 3005

BETWEEN

CHIEF EXECUTIVE OF THE

DEPARTMENT OF INTERNAL AFFAIRS
Plaintiff

AND

NZ TRUSTEES ASSOCIATION CHARITABLE TRUST

First Defendant

ERROL BRUCE ANDERSON

Second Defendant

Hearing:

On the papers

Appearances:

P Parry for Plaintiff

No appearance for First Defendant Second Defendant in person

Judgment:

19 November 2019

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 19 November 2019 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

CHIEF EXECUTIVE OF THE DEPARTMENT OF INTERNAL AFFAIRS v NZ TRUSTEES ASSOCIATION CHARITABLE TRUST [2019] NZHC 3005 [19 November 2019]

[1]    On 21 October 2019, I delivered a judgment in which I ordered the two defendants to pay pecuniary penalties under the Unsolicited Electronic Messages Act 2007 (the Act) for sending unsolicited messages electronically to entities it considered might be interested in becoming members of the first defendant and utilising its services.1 I also made an order under s 35 of the Act requiring both defendants to comply with their obligations under an enforceable undertaking dated 13 August 2018.

[2]    The parties have been unable to reach agreement regarding costs. It is now necessary for me to determine that issue on the basis of the memoranda filed by both parties.

[3]    The principal issue raised by the defendants is that the proceeding should not be categorised as a Category 2 proceeding for costs purposes. They contend it was a simple case that justifies a Category 1 costs categorisation.

[4]    I disagree. Category 1 is reserved for cases of a straightforward nature that can be conducted by junior counsel.2 Category 2 proceedings, on the other hand, are proceedings of average complexity requiring counsel of skill and experience considered average in the High Court.3

[5]    I consider the present proceeding is plainly of average complexity that required counsel of skill and experience considered average in the High Court. It was not of a sufficiently straightforward nature that it could realistically be conducted by a counsel considered junior in this Court. Costs are to be assessed on a Category 2 basis. I am also satisfied that Band B is the appropriate band to be applied in relation to each step in the proceeding.

[6]    The defendants raise several other arguments but none is relevant to the issue of costs. The primary principle that guides the exercise of the Court’s discretion as to costs is that the unsuccessful party should be required to contribute to the costs

1      Chief Executive of the Department of Internal Affairs v NZ Trustees Association Charitable Trust

[2019] NZHC 2684.

2      High Court Rules 2016, r 14.3(1).

3      Ibid.

incurred  by  the successful party.4     I see no justification for departing from that principle in the present case.

[7]    The plaintiff is accordingly entitled to costs jointly against both defendants on a Category 2B basis together with disbursements as sought in the memorandum of counsel for the plaintiff dated 11 November 2019.

Lang J

Solicitors:

Meredith Connell, Auckland Copy to: Mr E B Anderson

4      High Court Rules 2016, r 14.2(a).