Opai v Culpan

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-092-1026 [2017] NZHC 668

BETWEEN
MELISSA JEAN OPAI

Plaintiff

AND

LAURIE CULPAN First Defendant

ATTORNEY-GENERAL

(sued on behalf of the COMMISSIONER OF POLICE)

Second Defendant

Hearing: On the papers

Appearances:

N W Woods for the Plaintiff
H Rennie QC and D G Dewar for the First Defendant
M F McClelland QC and N Rider for the Second Defendant

Judgment:

7 April 2017

JUDGMENT (No.5) OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 7 April 2017 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

………………………………………………….
Registrar/Deputy Registrar

Solicitors:
Rice Craig (Neville Woods) Papakura, for Plaintiff
Thomas Dewar Sziranyi Letts (D Gerard Dewar) Wellington, for First Defendant
Crown Law Office (Alison Todd/Kim Laurenson) Wellington, for Second Defendant

Copy for:
Hugh Rennie QC, Wellington, for First Defendant
Matthew F McClelland QC, Wellington, for Second Defendant
New Zealand Police (Nicola Ridder), Wellington, for Second Defendant

OPAI v CULPAN [2017] NZHC 668 [7 April 2017]

[1] In my decision of 2 March 2017 I reserved costs on Ms Opai’s discovery application against the Crown. On 28 March 2017, Katz J heard the application to review my judgments in this matter. I gave my costs judgment in time to allow it to be reviewed.

[2] By memorandum dated 29 March 2017, the plaintiff seeks an order for costs against the Attorney-General on the discovery application. The Attorney-General has filed a memorandum in response. I have read the plaintiff’s affidavit filed on
15 March 2017 on which Mr Woods relies. I have not read other materials apart from refreshing my memory of the costs judgment. The file is with Katz J.

[3] The plaintiff invites me to make a fresh costs order in place of my decision of

2 March. That involves a recall of my earlier decision. The plaintiff’s memorandum

does not set out any principles on which I should review my earlier decision.

[4] I decline to change the order reserving costs on the discovery application. My decision was final. Subject to review, it must stand for better or for worse. When there is an appeal or an application for review, the established practice is that the first instance judge should not alter the original decision. In Russell v Klinac, O’Regan J said:1

It is clear that a common law rule exists that once a Court has made an order, and an appeal has been lodged against that order, the Court becomes functus officio and is therefore unable to take further action in relation to the matter.

[5] If I could recall my decision, I would not. In my original costs decision I was concerned that matters may come to light later which might bear on costs. I indicated that such matters should be decided after a final hearing. It would be inefficient to conduct a further enquiry into costs now. In particular, Mr McClelland QC indicates that the Attorney-General would wish to adduce further evidence on the question. Ms Opai may have an argument for costs on the discovery application, but it can be decided after the substantive hearing.

………………………………
Associate Judge R M Bell

1 Russell v Klinac HC Whangarei, AP18/01, 11 December 2001 at [15].

In the case of Opai v Culpan, the plaintiff, Melissa Jean Opai, brought an action against Laurie Culpan, the first defendant, and the Attorney-General, who was sued on behalf of the Commissioner of Police, the second defendant. The nature of the dispute was centered around the costs incurred during a discovery application, with the plaintiff seeking an order for costs against the Attorney-General. The matter was heard on the papers and was presided over by Associate Judge R M Bell.

The legal issue before the court was whether the Associate Judge should make a fresh costs order in place of the decision that had been reserved on the discovery application. The plaintiff argued for a recall of the earlier decision, but did not provide any principles on which the decision should be reviewed. The second defendant, the Attorney-General, opposed the application, stating that further evidence may come to light during the substantive hearing that could bear on the costs issue.

The Associate Judge declined to change the order reserving costs on the discovery application, maintaining that the decision was final and subject to review. The court cited the common law rule that once a court has made an order, and an appeal or review has been lodged against that order, the court becomes functus officio and is unable to take further action in relation to the matter. The Associate Judge also indicated that it would be inefficient to conduct a further enquiry into costs at this stage, as further evidence may come to light during the substantive hearing.

The court’s final orders were that the costs judgment of 2 March 2017 would stand for better or for worse, subject to review. The plaintiff’s application to review the costs judgment was noted, but no change was made to the original decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	On the papers
Appearances:	N W Woods for the Plaintiff H Rennie QC and D G Dewar for the First Defendant M F McClelland QC and N Rider for the Second Defendant
Judgment:	7 April 2017