Blomfield v A

[2023] NZHC 2662

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001619

[2023] NZHC 2662

BETWEEN

MATTHEW JOHN BLOMFIELD

Plaintiff

AND

MR A

First Defendant

ATTORNEY-GENERAL

Second Defendant

Hearing:	On the papers
Appearances:	M Blomfield in Person C Slater, non-party
Judgment:	29 September 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 29 September 2023 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Meredith Connell, Wellington Copy to: M Blomfield

C Slater

BLOMFIELD v ATTORNEY-GENERAL & Anor [2023] NZHC 2662 [29 September 2023]

Introduction

[1]        Mr Blomfield applied for non-party discovery orders against Cameron Slater and New Zealand Police. Mr Slater and the Police opposed the orders being made.

[2]        In a judgment delivered on 25 May 2023, I dismissed Mr Blomfield’s application in part and granted it in part. I declined to order that Mr Slater deliver up his computer and other records to a solicitor for review. I required Mr Slater, who had voluntarily provided an affidavit (deposing that he had searched for and not identified any relevant documents) to undertake a further search and swear a further affidavit.

[3]        Mr Slater, who is and was self-represented, asks for an order that Mr Blomfield pay him disbursements, including amounts he paid to a litigation support service, and costs for his own time spent undertaking the searches and preparing the affidavits. Mr Blomfield opposes paying anything more than the filing fee for the notice of opposition.

Legal principles

[4]        The usual principle is that the party who applies for non-party discovery pays the non-party’s costs.1 There are two separate costs at issue in applications involving non-parties: the costs of the application, and the costs of compliance with an order for discovery.2 A non-party’s costs must be reasonable in the circumstances.3 Where the Court finds costs claimed by a non-party to be unreasonable, it will reduce them to a reasonable level.4

[5]        The general rule of practice is that an unrepresented party is not entitled (except in exceptional cases) to recover for their own time and trouble.5 However, an

1      Churchill Group Holdings Ltd v Aral Property Holdings Ltd HC Auckland, CIV-2001-404-2302, 3 August 2005 at [33] and [36].

2      Jessica Gorman McGechan on Procedure (online ed, Thomson Reuters) at [HHR8.22.02] referring to Clear Communications Ltd v Telecom Corporation of NZ Ltd (1994) 8 PRNZ 200 (HC).

3      Clear Communications Ltd v Telecom Corporation of NZ Ltd (1994) 8 PRNZ 200 (HC) at 202.

4      Cayman Spectrum (NZ) Co v Spark New Zealand Trading Ltd [2023] NZHC 754 at [12].

5      Re Collier (a bankrupt) [1996] 2 NZLR 438.

unrepresented party can claim disbursements for expenses reasonably incurred under r 14.12 of the High Court Rules 2016.6

[6]        A number of authorities have concluded that payments to a solicitor for assistance provided to an unrepresented litigant can be claimed by that litigant not as costs but as reasonable disbursements actually paid.7 The rationale for this principle is that — in acquiring that professional help, the litigant has saved the unsuccessful party from having to pay costs for the litigant’s legal representation at the hearing.8 Legal assistance may also enable the proceeding to be dealt with more expeditiously as the lay litigant may gain a better idea of the issues to be dealt with and how to approach them.9 However, this Court has expressed reservations about an unrepresented litigant claiming disbursements when the advice or assistance is not from a legal practitioner.10

Assessment

[7]         Mr Slater asks for an order that Mr Blomfield pay him disbursements of $835, made up of:

(a)filing fee for notice of opposition ($110);

(b)assistance to prepare his notice of opposition and supporting affidavit ($250);

(c)assistance to prepare a second affidavit ($100);

(d)assistance to prepare opposition submissions ($250);

6      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335; and Attorney-General v Taylor [2019] NZSC 18.

7      See for example Knight v Veterinary Council of New Zealand HC Wellington CIV-2007-485-1300, 31 July 2009; Working Capital Solutions Holdings Ltd v Pezaro [2014] NZHC 2480; Sandilands v New Zealand Law Society [2017] NZHC 2640; Harrison v Keogh [2015] NZHC 3320; Hunter v Auckland Council [2020] NZRMA 401; Holt v Demetriades [2021] NZHC 2437.

8      Jessica Gorman McGechan on Procedure (online ed, Thomson Reuters) at [HRPt14.10] reiterated by this court recently in Holt v Demetriades [2021] NZHC 2437 at [33].

9      Haines v Memelink [2019] NZHC 2802 at [55].

10     Taylor v Attorney-General [2021] NZHC 2303.

(e)assistance to prepare a third affidavit ($50); and

(f)assistance to prepare a costs memorandum ($75).

[8]        The “assistance” was provided by JD Andrews of Litigation Support Services. Mr Blomfield objects to Mr Slater claiming these disbursements because JD Andrews is not a legal practitioner. Mr Slater has not provided documentation establishing that JD Andrews is a legal practitioner. Applying the principles described earlier, Mr Slater is not entitled to claim for this assistance.

[9]        Mr Slater seeks a further $393.75 for his time taken undertaking searches for his first affidavit, and $311.50 for his time taken to conduct the searches ordered by the Court. He calculates these sums based on 2.25 hours at his hourly consultancy rate of $175.

[10]      Mr Slater, as a non-party, should be compensated for the time he was required to spend searching for documents because of Mr Blomfield’s application. I have reservations about him claiming his full professional hourly rate. On the other hand, Mr Slater has not sought costs for appearing at the half-day hearing. Overall, the costs claimed are not unreasonable.

Result

[11]Accordingly, I order Mr Blomfield to pay Mr Slater:

(a)$110 for the filing fee for his notice of opposition; and

(b)$705.25 in costs.

Associate Judge Gardiner