Cullen v Pa'u

[2024] NZHC 1371

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-473

[2024] NZHC 1371

UNDER

Judicial Review Procedure Review Act 2016

IN THE MATTER OF

An application for review of a decision of the Board of trustees to authorise the issue and service of a notice under s 4 of the Trespass Act 1980

BETWEEN

RHYS MICHAEL CULLEN

Applicant

AND

PAUL JUNIOR PA’U

First Respondent

BOARD OF TRUSTEES OF MOUNT ALBERT GRAMMAR SCHOOL

Second Respondent

On the papers

Counsel:

The applicant in person

The first respondent in person
P Robertson and K Griffiths for the second respondent

Judgment:

28 May 2024

JUDGMENT OF CAMPBELL J

[Costs]

This judgment was delivered by me on 28 May 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

CULLEN v PA’U [2024] NZHC 1371 [28 May 2024]

[1]    In a judgment dated 19 December 2023, I declined an interlocutory application made by Mr Cullen and dismissed his claim for judicial review. I also said that the respondents were entitled to costs on a 2B basis.

[2]    Issues have arisen between the parties on the quantum of costs. They have filed memoranda.

[3]    The first issue is whether the first respondent, Mr Pa’u, is entitled to costs. He represented himself. He is legally trained but is not a practising lawyer. The general rule is that a litigant in person is entitled to recover disbursements, but not costs. An exception to this rule applies where the litigant in person is a lawyer.1 That exception applies only where the litigant in person is a practising lawyer.2 This means Mr Pa’u may not recover costs from Mr Cullen but is entitled to recover his reasonable disbursements. The quantum of these is not identified in the memoranda. I expect they can be agreed. If not, they are to be referred to the Registrar for determination.

[4]    The second issue concerns the quantum of costs and disbursements recoverable by the second respondent, the Board.   The Board has quantified these as $28,919    in costs and $438 in disbursements. Mr Cullen submits there should be a reduction  in costs because the Board failed in its argument that its decision was not susceptible to judicial review. I reject that submission. The Board still achieved overall success. Further, in terms of the susceptibility of the decision to judicial review, my judgment reached a middle ground between the positions adopted by the parties. In these circumstances it is not appropriate to reduce the costs otherwise recoverable by the Board.

[5]    However, I do not accept two of the cost items claimed by the Board. The Board has claimed for items 24 and 25 (which cover preparation for a hearing of an interlocutory application) and for items 30, 31 and 32 (which cover preparation for an affidavit hearing). There was only one hearing, which dealt with both Mr Cullen’s interlocutory application and his application for judicial review. The Board can only

1      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.

2      Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA) at 327; McGuire v Secretary for Justice

[2018] NZSC 116, [2019] 1 NZLR 335 at [59]–[61].

claim one set of items for preparation. I do not allow the claims for items 24 and 25. This means the Board is entitled to costs of $21,749 and disbursements of $438.

[6]I make the following orders:

(a)Mr Cullen is to pay Mr Pa’u his reasonable disbursements in this proceeding. If the parties cannot agree those disbursements, the dispute is to be referred to the Registrar.

(b)Mr Cullen is  to pay the Board costs of $21,749  and disbursements   of $438.

Campbell J