Cullen v District Court at Auckland

[2017] NZHC 3241

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000985 [2017] NZHC 3241

BETWEEN

RHYS MICHAEL CULLEN

Plaintiff

AND

DISTRICT COURT AT AUCKLAND Respondent

AND

ATTORNEY-GENERAL Second Respondent

Hearing:	(On the papers)
Counsel:	Plaintiff in Person First Respondent abiding decision of the Court Simon Barr for the Second Respondent
Judgment:	20 December 2017

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 20 December 2017 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

CULLEN v DISTRICT COURT AT AUCKLAND & ANOR [2017] NZHC 3241 [20 December 2017]

Background

[1]      Dr Cullen applied to judicially review the decision of a District Court Deputy Registrar to issue a search warrant.  He sought various declarations and exemplary damages. The Attorney-General was joined as party.

[2]      I  dismissed  the  application.1      I  was  not  satisfied  judicial  view  was  the appropriate vehicle with which to challenge the search warrant and, in any event, I was not satisfied the search warrant had been issued invalidly or by an improper process.

[3]      The Attorney-General, as the successful party, now seeks costs.

The costs application

[4]      Mr Barr, for the Attorney General, calculates Dr Cullen’s liability for scale costs as follows:

Item	Description	Daily rate	No. of days	Total
2	Commencement of defence by defendant	$2,230	2	$4,460
11	Filing memorandum for first mentions hearing	$2,230	0.4	$892
11	Filing memorandum for second mentions hearing	$2,230	0.4	$892
11	Filing memorandum for third mentions hearing	$2,230	0.4	$892
12	Appearance at second mentions hearing	$2,230	0.2	$446
12	Appearance at third mentions hearing	$2,230	0.2	$446
30	Preparation of briefs or affidavits	$2,230	2.5	$5,575
33	Preparation for hearing	$2,230	3	$6,690
34	Appearance at hearing	$2,230	0.5	$1,115
Total costs	$21,408

[5]      In response, Dr Cullen submits “the Court should exercise its discretion not to award costs in this case as the first respondent brought these proceedings on itself”. Dr Cullen’s central contention is that the Deputy Registrar could have prevented the

need for a hearing by providing an affidavit.

1      Cullen v District Court at Auckland [2017] NZHC 465.

[6]      Dr Cullen submits the central question in the application for judicial review was whether the Deputy Registrar turned his mind in the required way to the application.  He submits “an email from the [Deputy Registrar] could have removed the basis for these proceedings” and “an affidavit from him could have settled them”.

[7]      At one stage in the lead up to proceedings, the Attorney-General signalled to Dr Cullen that the Deputy Registrar would provide an affidavit.  Subsequently, the Attorney-General claimed privilege pursuant to s 56 of the Evidence Act 2006 and no such affidavit was provided.  Dr Cullen took this change of tack as a concession by the Attorney-General that an affidavit from the Deputy Registrar would harm the respondents’ case. Thus, in Dr Cullen’s submission, the proceeding was of the District Court’s own making and it is appropriate for costs to lie where they fall.

Discussion

[8]      In Manukau Golf Club Inc v Shoye Venture Ltd the Supreme Court confirmed the longstanding and “fundamental principle” that in all general courts in New Zealand costs should follow the event.2   There is also a strong implication that a Court is to apply the detailed costs regime provided in the High Court Rules in the absence of some reason to the contrary.3   The overriding rule, however, is that costs are at the discretion of the Court.4

[9]      Dr Cullen’s argument against costs does not fall into any of the categories recognised in r 14.7 of the High Court Rules. Thus, the question is whether the Deputy Registrar’s decision not to provide an affidavit constitutes “some other reason” which “justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious”.

[10]     As I explained in a decision related to these proceedings, it is not generally appropriate for decision-makers to file an affidavit after the event seeking to offer

2      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

3      Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002)

16 PRNZ 662 (CA) at [27].

4      High Court Rules, r 14.1.

further explanations for the decision made.5   The Deputy Registrar was correct not to file any affidavit even if the Attorney-General initially signalled his intention to do so.

[11]     It was Dr Cullen’s decision to issue the proceedings and continue them after correspondence  with  the Attorney-General  gave  rise  to  suspicions  of  improper process. As it transpired, the procedure adopted by the Deputy Registrar was entirely routine and the arguments advanced by Dr Cullen unsustainable.  For example, Dr Cullen submitted there was an obligation on a Registrar to give reasons in support of a decision to issue a search warrant.  There is no such obligation as the application itself provides those reasons.

[12]     However, I will allow a reduction in the costs award because the advice originally given by Crown Law was arguably deficient and I can understand why it gave rise to Dr Cullen’s suspicions.  I will allow a reduction of 15 per cent.

[13]     Moreover, I have reached the view the costs claimed by the Attorney-General are excessive:

(a)      Mr Barr claims $2,676 as preparation costs for mention hearings.   I consider this excessive as there would be little to prepare for in addition to the ordinary preparation costs reflected in other procedural steps.  I will allow 0.3 days to reflect preparation for all three mention hearings. That totals $669.

(b)Mr Barr claims scale costs of $5,575 and $6,690 for the preparation of briefs or affidavit and preparation for hearing.  I consider this figure to be excessive.  Five and a half days exceeds what is reasonable.  I will allow a total of two days for these two steps which totals $4,460.

[14]     Thus, before percentage deduction, I consider the appropriate costs sum to be

$11,596. With the 15 per cent reduction, I allow costs in the sum of $9,856.60.

5      Cullen v District Court at Auckland [2017] NZHC 466 at [28]-[29].

Result

[15]     The respondents are entitled to costs in the sum of $9,856.60.

Moore J

Solicitors:

Crown Law Office, Wellington

Copy to:

The Plaintiff