Commissioner of Police v Brown

[2022] NZHC 2688

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV 2020-463-39

[2022] NZHC 2688

IN THE MATTER

of an application pursuant to the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

ANNALISE LARA BROWN

Respondent

Hearing:	On the papers
Judgment:	18 October 2022

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 18 October 2022 at 2.15 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel: Andrew Hill, Rotorua Crown Solicitor, Rotorua

COMMISSIONER OF POLICE v BROWN [2022] NZHC 2688 [18 October 2022]

[1]                 This is a civil proceeding brought by the Commissioner of Police (the Commissioner) against the respondent under the Criminal Proceeds (Recovery) Act 2009. The proceeding was set down for a one day hearing on 31 May 2022. It could not proceed because no counsel  was  available  to  represent  the  Commissioner.  Mr Macklin who to date has been the Crown counsel responsible for representing the Commissioner in this proceeding could not appear in Court. His failure to appear was through no fault of his own.

[2]                 Over the weekend of 28 and 29 May 2022 Mr Macklin had travelled to Christchurch to visit an ill relative. The trip was on late notice and was urgent. He booked the first return flight out of Christchurch on Monday 30 May 2022 which was well over 24 hours prior to the scheduled hearing date. Regrettably poor weather resulted in a series of flight changes and cancellations over the course of Monday   30 May 2022. By 3.30 pm Mr Macklin had not been able to secure clear flights to Rotorua or any nearby airport. Rotorua airport was closed with no further flights in. Hamilton and Tauranga flights were also subject to poor weather forecasts and were not reliable options for landing. Mr Macklin immediately contacted the Court. Various options to allow the hearing to proceed were canvassed but ultimately found unsuitable by the Court. Accordingly, the hearing was adjourned.

[3]                 Against this background Mr Macklin submits that the Commissioner should not be liable for costs as the adjournment was brought about through no fault of the Commissioner.

[4]                 The respondent advises that she is being funded via a grant of civil legal aid. Her counsel, Mr Hill, disputes the Commissioner’s primary position that no costs order should be made. Mr Hill submits that substantial preparation was put into the hearing scheduled for 30 May 2022 and that to date he has invoiced the Legal Services Commissioner (LSC) 30 hours of preparation and $100 in office disbursements. Further, the grant of civil legal aid is essentially a loan and depending on the outcome of the hearing the respondent may be required to repay that money at the conclusion of her case. The maximum amount required to be paid back by the respondent in circumstances where the application for forfeiture is granted can be no higher than the maximum recoverable amount set by the LSC on a case by case basis. Because the

case has been adjourned to another date Mr Hill submits he will necessarily have to reprepare for that hearing closer to time. He contends the volume of evidence that has been filed is reasonably large and estimates there are somewhere between 500 and 750 pages of affidavits and exhibits. Much of this evidence relates to various bank accounts which require close and careful consideration. He argues that he will be required to review all of the evidence again to properly prepare for the rescheduled hearing. That is an additional cost which he submits should not be borne by the respondent because the delay was not of her making.

[5]                 Mr Hill acknowledges that the delay was caused by factors outside the Commissioner’s control (weather conditions and flight cancellations) but submits nevertheless the reality remains the hearing had to be adjourned. The Commissioner was represented by a Crown Solicitor’s firm, which ordinarily suggests that one counsel’s absence should be covered by another lawyer at the firm.

[6]                 In their respective memorandum counsel for each party has traversed the history of this proceeding and the fact that it has been adjourned in the past with no costs orders made. From the Commissioner’s perspective earlier adjournments were brought about by the respondent. From her perspective that is not always the case. I do not think it helpful to traverse the history of the matter. By 30 May 2022 it had reached a point where the Court had done what it could to ensure the proceeding went to a substantive hearing. For whatever reasons there had been delay in the past and therefore some effort was made to obtain a hearing date that would bring the matter to an end in this Court.

[7]                 This is a civil proceeding. Late notice adjournments typically result in costs awards against the offending party. I consider there is strength in Mr Hill’s argument that the Commissioner, being a public officer who is represented by the local Crown Solicitor’s office, should be able to ensure that if counsel responsible for the file cannot be present a substitute counsel is available. The Rotorua airport is often closed during the winter due to bad weather. It cannot be assumed that flights will readily be available to Rotorua in winter conditions. I accept that for Mr Macklin the trip to Christchurch may have been urgent and necessary. However, I consider once there

was a decision to make the trip a substitute counsel should have been identified to cover in case something prevented his return for the hearing.

[8]                 Accordingly, I am satisfied an award of costs is warranted. I see no reason why the usual scale 2B costs should not be awarded here as well as reasonable disbursements. Those costs should provide for recovery of the steps taken to prepare for the hearing.

Result

[9]The respondent is awarded costs at category 2B and reasonable disbursements.

Duffy J