Curtis v Commonwealth of Australia
[2019] NZCA 126
•1 May 2019
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA234/2017 [2019] NZCA 126 |
| BETWEEN | JASON LEONARD CURTIS |
| AND | COMMONWEALTH OF AUSTRALIA |
| CA539/2017 | ||
| BETWEEN | JASON LEONARD CURTIS | |
| AND | DISTRICT COURT AT MANUKAU | |
| Court: | French, Asher and Clifford JJ |
Counsel: | D P Hoskin for Appellant in CA234/2017 and CA539/2017 |
Judgment: | 1 May 2019 at 11 am |
COSTS JUDGMENT OF THE COURT
The Commonwealth of Australia is to pay Mr Curtis’ scale costs on a band A basis and usual disbursements, providing that the amount should not exceed the amount paid by Legal Services to Mr Curtis’ counsel for the appeal.
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REASONS OF THE COURT
(Given by Asher J)
Introduction
This judgment determines costs on Mr Curtis’ appeal, following our judgment of 19 December 2018.[1] Mr Curtis was the successful appellant in that appeal. In response to an appeal against a decision that he be surrendered for extradition, it was decided that to extradite Mr Curtis would be oppressive.[2] It was declared under s 45(4) of the Extradition Act 1999 that Mr Curtis was not eligible for surrender to Australia. There were parallel judicial review proceedings, and Mr Curtis would have been successful in those proceedings for much the same reasons as in the surrender proceedings, but it was not necessary to make any judicial review orders given his success on surrender.
[1]Curtis v Commonwealth of Australia [2018] NZCA 603.
[2]At [134]–[137].
Mr Hoskin for Mr Curtis has now invited the Court to award costs in Mr Curtis’ favour. He relies first on the Costs in Criminal Cases Act 1967 and alternatively on r 53 of the Court of Appeal (Civil) Rules 2005 (the Rules). There was initially some resistance by the Commonwealth of Australia to the existence of jurisdiction to order costs in this case.
However, the position was clarified by Ms Hogan, counsel for the Commonwealth of Australia, who stated that it was not arguing for a novel approach in the area of costs in civil appeals. In her written submission on costs she recognised that it was orthodox to award some costs for a civil appeal, and that there was jurisdiction to make an award of costs, at least under the Rules. The opposition was based on the Court’s discretion not to award costs, rather than any jurisdictional issue, at least in the civil area. In contrast Mr Hoskin for Mr Curtis argued that costs could be ordered under the Costs in Criminal Cases Act, as well as under the Rules.
Costs under the Court of Appeal (Civil) Rules 2005
Rule 4(1) provides:
4 Application of rules
(1)These rules apply to all proceedings of the Court, except proceedings to which the Court of Appeal (Criminal) Rules 2001 apply.
(Emphasis added.)
The Court of Appeal (Criminal) Rules 2001, set out procedures for the prosecution of criminal appeals. They make no provisions for extradition cases and do not apply to the substantive appeal. Rule 4(1) creates a clear distinction between appeals from criminal cases, and all other cases. Therefore, under r 4(1), the civil regime applies.
These proceedings had more of the character of civil proceedings than criminal proceedings. There were no charges laid in New Zealand, and the civil onus and standard applied and not the criminal onus and standard. There were none of the formalities of a criminal trial, and limited cross-examination. The case had many of the characteristics of a civil trial.
Moreover, the hearing before us involved the judicial review claim as much as the surrender issue, (although because Mr Curtis won on the surrender point no orders were required under the judicial review proceeding). The successful judicial review proceedings in themselves would have warranted an order for costs under r 53A(1)(a) of the Rules.
Should a costs order have been made?
Ms Hogan opposed the Court exercising its discretion to make any significant costs order. She emphasised that the Extradition Act does not provide for an award of costs, and that the extradition was sought on behalf of the Commonwealth of Australia by the New Zealand Police pursuant to a reciprocal agreement between the countries. As a consequence, the costs of the litigation had been borne by the New Zealand taxpayer. If there was a costs award it could have a chilling effect on the extradition regime. It was also argued that the appeal concerned a matter of public interest and that the Commonwealth of Australia acted reasonably in the conduct of the appeal, and for that reason costs should not be ordered.
Under r 53F(e) the Court can refuse to make an order for costs or reduce it where the appeal concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the appeal. We accept that the Commonwealth of Australia acted in good faith in seeking extradition. We accept that there is the public interest in supporting comity between closely aligned countries such as Australia and New Zealand, and the related general interest in honouring extradition treaties and bringing complaints in each country to trial. Nevertheless, the extradition proceeding failed, and for reasons arising primarily from delay by the Commonwealth of Australia’s authorities.
The relief sought is personal from the point of view of Mr Curtis. The particular events with which he is charged are of a private nature, and the immediate impact would have been on him personally and only him. Extradition would have affected his life immediately. If it had been granted he would have lost his liberty for an indeterminate period, and would have had to leave his home and go to Australia, where the Australian authorities would have sought to hold him in custody pending trial. There was no public interest from his point of view, but a severe risk of disruption and imprisonment, at least for the short term.
Ultimately it may be, as is submitted by the Commonwealth of Australia, that the New Zealand public purse has funded both the prosecution and the defence of this appeal. However, it is not an uncommon for there to be disputes between bodies that are funded by the New Zealand taxpayer. Despite that, each such body will have specific funds allocated and financial caps and restraints. They can be expected to pursue all legitimate avenues for the recovery of expended funds.
We are told by Mr Hoskin that the Commissioner of Legal Services (the Commissioner) does wish him to pursue a costs order in favour of Mr Curtis. Costs orders in these circumstances between entities funded by the taxpayer, are not meaningless. Recoveries may increase available funds. We are mindful also that there should be costs consequences where there are failings by public bodies which result in an individual suffering adverse consequences, to help ensure that such failings are more strenuously guarded against in future.
We conclude that this is not a case where no costs order should be made because these are extradition proceedings. We do not think that such public interest as exists can outweigh the starting point set out in r 53A(1)(a) that the party who fails should pay the costs of the party who succeeds.
The effect of legal aid
Mr Curtis has been granted legal aid, and his legal costs have been paid by the Commissioner under the Legal Services Act 2011.
While under s 45(2) of the Legal Services Act an order for costs cannot be made against a legally aided party unless there are exceptional circumstances, the same general exemption is not made for costs in favour of a legally aided person. The Legal Services Act does not prohibit Mr Curtis from seeking costs, even though he is in receipt of legal aid. If Parliament had intended such a prohibition it would have said so in the legislation, when it gave an unsuccessful legally aided person a specific protection. It did not do so.
Rule 53A(1)(f) states that an award of costs “…should not exceed the costs incurred by the party claiming costs”. Has Mr Curtis “incurred” any costs when they are being paid as legal aid by the Commissioner of Legal Services? Mr Curtis has not paid any legal costs himself.
The Legal Services Act provides at s 18(2) that every grant of legal aid is subject to a condition that the aided person must pay to the Legal Services Commissioner a specified amount calculated in accordance with s 21. Under s 34(1) amounts payable to the Commissioner may be recovered as a debt due. Under s 36(1) the proceeds of proceedings to which a grant of legal aid relates are subject to a charge in favour of the Commissioner for the amount of the repayment under the grant. Under s 41 an aided person must take all steps necessary to enforce a judgment to recover the proceeds of proceedings. A recipient of legal aid is therefore to be liable in whole or in part to pay for the costs of counsel, and will incur an obligation to the Commissioner to pay them.
Two letters granting Mr Curtis legal aid were produced to us, and prescribed repayment amounts. They stated that the amounts were a debt of Mr Curtis. The figures appear to be less than the total amount claimed by Mr Curtis.
In our view the provisions of the Legal Services Act mean that Mr Curtis has “incurred” a liability for costs. His debt is not to his counsel, but to the Commissioner. However it was a cost incurred by him in defending the extradition application. We agree with the view expressed by Randerson J in P v Minister of Immigration that the legislative policy of the Legal Services Act is that the expenditure incurred by the taxpayer in legal aid should be recovered whenever it is lawful and practical to do so.[3] There has been expenditure here on the legal costs of this appeal. It can be recovered at least in part from Mr Curtis. He has incurred a debt.
[3]P v Minister of Immigration (1999) 13 PRNZ 370 at 371.
Further, we do not think that the award of costs should be limited to that part of the legal aid for which Mr Curtis has a debt. Rule 53A is stated to be subject to the “overriding discretion” to award costs in r 53. The Court of Appeal may, like the High Court, as part of this overriding discretion, make costs orders in favour of non-parties.[4] This is made clear by r 53E(3)(d), which provides that a court may order a person to pay indemnity costs if “the person in whose favour the order of costs is made was not a party to the appeal and has acted reasonably in relation to it”.[5] This rule signifies that non-party costs orders are contemplated. The Commissioner can be such a party.
[4]Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [18].
[5]Murren v Schaffer [2018] NZCA 318, (2018) 24 PRNZ 285 at [50].
We are satisfied that a recipient of legal aid can, under the Rules, recover costs paid by the Commissioner. We note this conclusion has been reached without argument in another extradition case where the person whose extradition was sought succeeded, and obtained a costs order.[6]
[6]Kim v Minister of Justice [2016] NZHC 3086.
The quantum should be according to the Court of Appeal scale. Costs should be scale costs or the amount paid out by the Commissioner for the appeal, whichever is the lesser figure. Thus costs should not exceed scale, or (if they are less), the amount paid for legal services.
In the light of our decision that proper costs can be ordered under Rules, we do not need to determine Mr Hoskin’s application for costs under the Costs in Criminal Cases Act. Any costs award under that out of date Act would not exceed the costs awarded under the civil regime, which as we have set out has a more natural application to these proceedings.
Costs sought by counsel for Mr Curtis, paid by Legal Services, total $35,929.51. It is not clear to us whether that amount will exceed or be less than scale costs. We frame our order so that the costs payable are the lesser of scale costs or the amount paid for Mr Curtis by Legal Services.
Result
The Commonwealth of Australia is to pay Mr Curtis’ scale costs on a band A basis and usual disbursements, providing that the amount should not exceed the amount paid by Legal Services to Mr Curtis’ counsel for the appeal.
Solicitors:
Crown Solicitor, Manukau for Respondent in CA234/2017 and Second Respondent in CA539/2017
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