AB v Attorney-General - [2012] NZHC 3626

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY ORDER OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2006-485-2304 [2012] NZHC 3626

BETWEEN AB Plaintiff

ANDTHE ATTORNEY-GENERAL Defendant

Counsel: L McKeown for Plaintiff
J S Andrew for Defendant
G D S Taylor for Legal Services Commissioner

Judgment: 24 December 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 1.00pm on the 24th December 2012.

JUDGMENT OF WILLIAMS J (COSTS)

Solicitors:
Johnston Lawrence Ltd, Wellington
Crown Law, Wellington
G D S Taylor, Barrister, Wellington

AB V THE ATTORNEY-GENERAL HC WN CIV-2006-485-2304 [24 December 2012]

[1] In October 2006, AB (plaintiff) filed a claim against the Attorney-General (defendant) in negligence. He sought compensatory and exemplary damages for physical and mental injury allegedly suffered while at Regular Force Cadet School in Waiouru in early 1970.

[2] AB was granted legal aid to pursue the claim. However, at one point, this was discontinued which pushed the trial date back some months. It was eventually reinstated by the Legal Aid Review Panel.

[3] In my judgment of 22 February 2011, I dismissed AB’s claim. I found that it was time-barred under the Limitation Act 1950 and, in any event, relief in the form of compensatory damages was barred under s 317(1) of the Accident Compensation Act 2001. I nonetheless considered the substance of the claim and found that, while R had been subject to some physical abuse at Cadet School, it was less serious than had been alleged. I also found that, while R did subsequently develop an acute mood disorder, his treatment at Cadet School was not shown to be a substantial and operating cause of that disorder, precluding any claim in negligence. Finally, I noted that, even if causation were shown, the Cadet School’s conduct would not have been sufficient to warrant the sanction of exemplary damages.

[4] The defendant1 now seeks costs. It does not seek a costs order against AB personally. Rather, it seeks an order under s 45(5) of the Legal Services Act 2011 (the Act) for an order specifying what costs would have been ordered against AB, had s 45 not otherwise affected his personal liability for costs (s 45 limits the liability of legally aided persons for costs). Specifically, the defendant seeks an order that AB would have had to have paid increased costs, or alternatively scale costs on a 2B basis, including second counsel and actual witness costs.

[5] If the Attorney-General is successful in obtaining a s 45(5) order, this will entitle it to apply to the Legal Services Agency (LSA) pursuant to s 46 of the Act for
payment or partial payment of these costs. Whether costs are ultimately awarded is a

1 Given that the Legal Services Agency is involved in this dispute, I have deliberately chosen not
to use the term “Crown” in this judgment.

matter for the Legal Services Commissioner to determine in exercise of his/her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v Attorney-General

Details

AGLC: AB v Attorney-General [2012] NZHC 3626
Case: [2012] NZHC 3626
Decision Date: 24 December 2012

CaseChat Overview and Summary

In AB v Attorney-General, the plaintiff sought damages for injuries sustained at Regular Force Cadet School in 1970. The defendant, the Attorney-General, sought costs under s 45(5) of the Legal Services Act 2011. The plaintiff had been granted legal aid to pursue the claim but, at one stage, this was discontinued. The plaintiff was ultimately unsuccessful in his claim, which was dismissed as time-barred and, in any event, barred by the Accident Compensation Act 2001. The defendant sought an order specifying what costs would have been ordered against the plaintiff if s 45 had not affected his personal liability for costs, on a 2B basis, including second counsel and actual witness costs.

The court found that the decision to make an order under s 45(5) was discretionary. The court found that the usual course was for the Court to go on to make a s 45(5) order. The court concluded that it was appropriate to exercise its discretion to make an order under s 45(5) in the present case. The court found that the plaintiff would have been personally liable to pay scale 2B costs plus disbursements if he had not been legally aided. The court found that it was not a case where increased costs would have been justified.

The court made an order under s 45(5) of the Legal Services Act 2011 that, had the plaintiff not been legally aided, he would have been liable for costs on a 2B basis (less 10 per cent), plus disbursements. The costs sought were $71,192.00 less 10 per cent, which comes to $64,072.80. Disbursements were $44,265.09. This makes a grand total of $108,337.89.

Orders