Commissioner of Police v James

[2021] NZHC 125

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2236

[2021] NZHC 125

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BRETT WALLACE JAMES

Respondent

Hearing:	On the papers
Appearances:	M Harborow and A Masters for the Applicant Respondent on own behalf
Judgment:	12 February 2021

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me

on 12 February 2021 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Auckland Copy to:  Respondent

COMMISSIONER OF POLICE v JAMES [2021] NZHC 125 [12 February 2021]

Introduction

[1]                 This is an application by the Commissioner of Police (Commissioner) for costs following my judgment, given on 20 November 2020, in which I granted the Commissioner’s application for an assets forfeiture order over property belonging to the respondent, Brett James.1 The Commissioner seeks costs against Mr James on a 2B basis, in the sum of $13,742.50. The Commissioner does not seek costs against Wilson Chee, an interested party who had claimed that part of the property belonged to him.

[2]                 Mr James did not file a memorandum in accordance with my timetable order, nor in response to promptings by the registrar. Following the registrar’s reminders I formally granted an extension. No memorandum was filed by the extended deadline.

Background

[3]                 Mr James was a legal aid recipient for the majority of this proceeding, represented by experienced counsel, Mr Philip Hamlin. Mr James became a self- represented litigant when Mr Hamlin was granted leave to withdraw as counsel, on 17 September 2020, on the basis of an irreconcilable breakdown in the client/counsel relationship.

Costs claimed and submissions

[4]                 As the successful party, the Commissioner seeks costs against Mr James.2 The Commissioner submits that he would have a case for increased costs on the grounds that Mr James pursued an argument that lacked merit,3 failed to admit facts4 and rejected a reasonable offer of settlement.5 However, the Commissioner has elected to seek only scale 2B costs against Mr James, and only for the period in which he submits Mr James was self-represented. Those costs amount to $13,742.50. The

1      Commissioner of Police v James [2020] NZHC 3075.

2      High Court Rules 2016, r 14.2(1)(a).

3      High Court Rules 2016, r 14.6(3)(b)(ii).

4      High Court Rules 2016, r 14.6(3)(b)(iii); Commissioner of Police v James [2020] NZHC 3075 at [69].

5      High Court Rules 2016, r 14.6(3)(b)(v) and 14.11.

Commissioner does not seek costs against Mr James for the period in which Mr James was legally aided and represented by Mr Hamlin.6

[5]                 The Commissioner submits that Mr James became a self-represented litigant on 11 September 2020, being the date that Mr Hamlin filed a memorandum with the Court seeking to withdraw as counsel for Mr James.

[6]                 Accordingly, the Commissioner seeks costs pursuant to the following schedule:

Item	Description	Allocation	Daily Recovery Rate	Total amount recoverable
11	Filing memorandum in advance of mention (dated 14 September 2020)	0.4	$2,390	$956
12	Appearance at mentions hearing on 17 September 2020	0.2	$2,390	$478
40	Preparation of written submissions (dated 29 September 2020)	1.5	$2,390	$3,585
11	Filing memorandum regarding electronic Courtroom (dated 5 October 2020)	0.4	$2,390	$956
12	Appearance at mentions hearing on 7 October 2020	0.2	$2,390	$478
41	Preparation of bundle for hearing	0.6	$2,390	$1,434
42	Appearance at hearing on 12–14 October 2020	2.25	$2,390	$5,377.50
29	Civil forfeiture orders (dated 20 November 2020)	0.2	$2,390	$478
Total	$13,742.50

Quantum of costs

[7]                 Normal costs principles apply in all matters under the Criminal Proceeds (Recovery) Act 2009.7

6      Legal Services Act 2011, s 45(1) and (2).

7      Commissioner of Police v Antolik [2017] NZHC 86 at [2], adopting the reasoning of Rodney Hansen J in Commissioner of Police v Stepping Stone Finance Ltd [2013] NZHC 1537 at [3]–[6].

[8]                 As the successful party, I am satisfied that the Commissioner is entitled to an award of costs against Mr James on a 2B basis for the period in which Mr James was a self-represented litigant.

[9]                 I am satisfied that the schedule produced by the Commissioner (and partially reproduced in [6] above) accurately reflects the steps he took in this proceeding. The Commissioner says he seeks costs only for the period in which Mr James was a self- represented litigant. His schedule records this period as commencing on 11 September 2020, being the date Mr Hamlin filed a memorandum with the Court seeking to withdraw as counsel for Mr James.

[10]              However, Mr Hamlin was only granted leave to withdraw at a mentions hearing on 17 September 2020. Mr Desai appeared, on instruction for Mr Hamlin at that mentions hearing. In my view, consistent with r 5.41(3), Mr Hamlin remained the solicitor on the record up until 17 September 2020. Accordingly, the Commissioner is not entitled to costs for the filing of his memorandum dated 14 September 2020, nor for his appearance at the mentions hearing on 17 September 2020. This reduces the amount recoverable by $1,434, bringing the sum amount recoverable to $12,308.50.

Result

[11]I make an order awarding costs in favour of the Commissioner in the sum of

$12,308.50 against Mr James.

Gordon J