IN THE EMPLOYMENT COURT WELLINGTON [2015] NZEmpC 220 EMPC 247/2015. HAYDEN GRAEME AUSTING First Defendant. NICOLA MARIE GIBSON-HORNE Second Defendant

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1 IN THE EMPLOYMENT COURT WELLINGTON IN THE MATTER OF AND IN THE MATTER BETWEEN AND AND [2015] NZEmpC 220 EMPC 247/2015 a challenge to a determination of the Employment Relations Authority of an application for costs WELLINGTON FREE AMBULANCE SERVICE INCORPORATED Plaintiff HAYDEN GRAEME AUSTING First Defendant NICOLA MARIE GIBSON-HORNE Second Defendant Hearing: Counsel: (on the papers by memoranda filed on 8 October and 3 November 2015) P McBride and G Ballara, counsel for the plaintiff J Drayton and A Webster, counsel for the defendants Judgment: 10 December 2015 COSTS JUDGMENT OF JUDGE A D FORD [1] Following on from my judgment of 24 September 2015, the defendants now seek a costs award against the plaintiff. 1 I gather from a recent exchange between counsel and the Registrar that the parties are currently exploring the possibility of a settlement of the substantive action in the Authority and this costs judgment may be helpful in their ongoing negotiations. Even if my assumption in this regard is not correct, I would still urge the parties to explore the settlement option. It is clear from the documentation before the Court that the costs incurred in respect of the litigation to date have been significant, if not excessive. 1 Wellington Free Ambulance Service Inc v Austing [2015] NZEmpC 164. WELLINGTON FREE AMBULANCE SERVICE INCORPORATED v HAYDEN GRAEME AUSTING NZEmpC WELLINGTON [2015] NZEmpC 220 [10 December 2015]

2 [2] In his submissions, Mr McBride, counsel for the plaintiff, appropriately referred to the plea made by the Court of Appeal in 2001 for counsel practising in the employment field to reflect on the consequences of conducting litigation without proper focus on the issues and without tight control on the escalation of costs. 2 Hopefully in this regard, the new trial regime as to costs which comes into effect in this Court on 1 January 2016 will provide some assistance to self-litigant parties and to counsel practising in this jurisdiction. [3] The judgment dealt with a challenge by the plaintiff to a determination by the Employment Relations Authority (the Authority) in relation to interim reinstatement. 3 The challenge was unsuccessful and the defendants were granted interim reinstatement. Ms Drayton and Ms Webster, counsel for the defendants, advise that the actual costs incurred by the defendants in connection with the hearing amounted to $46, (plus GST). The practice was to apportion the time equally between each defendant but I agree with a submission made by Mr McBride that, as there was only the one set of proceedings and submissions for both defendants, for costs purposes, the case should properly be viewed as one. [4] The defendants had sought interim reinstatement pending an investigation by the Authority into their claim that they had been unjustifiably dismissed from their employment with the plaintiff. The investigation is scheduled to commence on 19 February In its determination (the Authority had ordered interim reinstatement under "workable arrangements" to be agreed to at mediation.) 4 Mediation took place on 1 September 2015 and workable arrangements were agreed to under which the defendants resumed working for the plaintiff on 4 September The plaintiff, nevertheless, proceeded with its challenge to the interim reinstatement ordered by the Authority. In my judgment I effectively ordered a continuation of the workable arrangement agreed to at mediation. 5 [5] Both parties, in their costs submissions, have made extensive accusations and counter-accusations. Each accuses the other of conduct which prolonged the Victoria University of Wellington v Alton-Lee [2001] ERNZ 305 (CA), at [65]. Austing v Wellington Free Ambulance Service Trust [2015] NZERA Wellington 79. At [89]. Wellington Free Ambulance Service Incorporated v Austing, above n 1, at [71].

3 duration of the hearing (it ran for three days), thus unnecessarily adding to the others costs. There is some substance in the respective allegations but in general the criticisms balance themselves out and, for this reason, I do not find it necessary to spend time analysing in any detail the arguments and submissions advanced. [6] There is no dispute as to the principles applicable to costs awards in this jurisdiction. They were established in the well-known triumvirate of Court of Appeal cases. 6 The primary principle is that costs follow the event. The Court looks to determine what would be reasonable costs for the successful party in conducting the particular litigation in question and then decides what, in all the circumstances, would be a reasonable contribution for the unsuccessful party to make towards those costs. [7] Normally a 66 per cent contribution of the reasonable costs so determined is regarded as fair and reasonable but that percentage contribution may need to be adjusted upwards or downwards depending upon the circumstances. Ultimately, the award of costs is discretionary but the discretion must be exercised in accordance with established principles. [8] In this case, counsel for the defendants, have provided full particulars showing how the defendants' costs claim is made up and I accept that it totals the figure recorded in [3] above. Appropriately, no claim is made for GST. After making some adjustment for duplication between senior and junior counsel, the defendants present their case on the basis that their reasonable costs amounted to $40,000 and they claim 66 per cent of that figure, namely, $26,400. They also seek disbursements totalling $ and a contribution of $1000 towards the costs incurred in attempting to resolve the costs issue and in connection with the costs application itself. [9] For his part, Mr McBride submitted that because of the factors he enumerated which allegedly "put the Plaintiff to substantial unnecessary cost by their conduct of 6 Victoria University of Wellington v Alton-Lee, above n 2; Binnie v Pacific Health Ltd [2002] 1 ERNZ 438 (CA) at [14]; Health Waikato Ltd v Elmsly [2004] 1 ERNZ 172 (CA).

4 the case", either costs should lie where they fall or, in the alternative, only a modest award is appropriate. [10] One of the other submissions advanced by Mr McBride was that the challenge "was substantially a rerun of the case before the Authority". There is some substance in that claim but the challenge involved the consideration of a significant amount of documentation which was not before the Authority and that, in turn, resulted in the need for more complex and extensive submissions than might otherwise have been the case. I do not think that the defendants alone can fairly be blamed for the length of the hearing. [11] There are some similarities between this case and the interim reinstatement proceedings before this Court in Burns v Media Design School Limited. 7 In that case, the plaintiff discontinued less than 24 hours before the interlocutory hearing was due to begin. The defendant sought an order for costs. His Honour Judge Couch accepted that the defendant actually incurred costs of $26,500 plus GST but held that reasonable costs could be fixed at no more than $15,000. [12] Having carefully analysed the claim presented in this present case and the submissions advanced on behalf of the respective parties, I consider that reasonable costs can be fixed at $25,000. I have not been persuaded that it is necessary to make any adjustment to the usual starting point of two-thirds of that amount. Therefore I make an award of costs in favour of the defendants in the sum of $16,500. [13] The defendants claim disbursements totalling $ is made up of: 25.1 The transcription of the two disciplinary interviews ($ in total); 25.2 Photocopying the Bundle at the Court's request and photocopying affidavits for the Court and WFA ($ in total); and 25.3 Couriering documents to both the Court and Mr McBride during the course of proceedings ($35 in total). [14] Mr McBride responded stating that it was difficult to understand how the transcripts of the disciplinary interviews were properly costs in this proceeding. I 7 Burns v Media Design School Ltd [2009] NZEmpC 104.

5 agree with that submission and disallow that item. In relation to the photocopying charge, Mr McBride pointed out that the copying work for the agreed bundle was carried out by the plaintiff in accordance with the Court's directions. 8 That submission would appear to be borne out by the relevant Court minute which directed that the plaintiff was to be responsible for producing the agreed bundle of documents. Again, therefore, I disallow this disbursement. No objection is taken, however, to the courier charge and it is allowed in full. [15] Counsels submissions on costs were helpful to the Court and correspondence was produced showing that genuine attempts had been made to try and settle the costs issue. I allow the defendants $1000 costs in connection with their costs application. [16] The plaintiff is, therefore, ordered to pay the defendant by way of costs and disbursements the total sum of $17,535. A D Ford Judge Judgment signed at am on 10 December Minute dated 28 August 2015.