De Boer v Attorney-General

[2025] NZHC 513

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001949

[2025] NZHC 513

UNDER THE

NEW ZEALAND BILL OF RIGHTS ACT 1990

BETWEEN

DIRK WILLEM DE BOER

Appellant

AND

ATTORNEY-GENERAL

Respondent

Hearing:

On the papers

Appearances:

G E Minchin for Appellant

A P Lawson and R Gavey for Respondent

Judgment:

14 March 2025

JUDGMENT OF WHATA J

Costs

This judgment was delivered by me on 14 March 2025

at 11:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors / Counsel: Exeo Legal, Auckland G E Minchin, Auckland Crown Law, Wellington

DE BOER v ATTORNEY-GENERAL [2025] NZHC 513 [14 March 2025]

[1]                 I refer to the memoranda of the appellant dated 24 February 2025, and of the respondents dated 3 March 2025. In my judgment of 5 December 2024, I resolved the appeal in favour of the appellant having found that a search warrant had been improperly obtained.1 I indicated that the appellant should have his costs in this Court and the District Court.2 I understand the parties have reached agreement as to costs except in relation to costs on interlocutory matters in the District Court. In particular, the appellant seeks to have reversed:

(a)costs on an application for interrogatories (which have already been paid) in the sum of $2,865.00; and

(b)costs of $2,851.50 on an application for the further and better discovery.

[2]For the appellant, Mr Minchin submits, in short:

(a)the application for an unredacted version of an informer email and subsequently for discovery were reasonable;

(b)the application for discovery was successful at least in part; and

(c)the application for interrogatories in respect of firearms enquiries were reasonably based.

[3]                 For the Crown, Ms Lawson submits, also in short, that the costs were agreed in relation to the application for interrogatories and the costs orders were properly made in relation to the application for better and further discovery.

Assessment

[4]                 As noted by Ms Lawson, in both the District Court and the High Court, costs on opposed interlocutory applications must be fixed when the application is determined and they become payable when they are fixed, unless there are special

1      De Boer v Attorney-General [2024] NZHC 3551.

2 At [69].

reasons to the contrary.3 Mr Minchin’s complaint is essentially that there was a proper basis for those applications and therefore the costs orders should be reversed. I address the discovery and the interrogatories judgments in the December judgment.4 I will not burden this judgment by repeating that account. I simply observe that nothing on the information provided to me suggests that I should adopt the course suggested by    Mr Minchin. The applications were not  self-evidently  strong.  I  also  agree  with Ms Lawson that as costs on the interrogatories were agreed, there is no order for me to reverse. Finally, as Ms Lawson submitted, the basis upon which the appellant succeeded before me was not related to either of the matters to which the interlocutory applications related. In those circumstances, I see no proper basis for reversing either the order as to costs on the discovery application or the agreement as to cost on the interrogatories.

[5]                 Given the foregoing, I decline to order the reversal of the costs on the interlocutory matters before the District Court. Costs on this residual issue to lie where they fall.

Whata J

3      District Court Rules 2014, r 14.2(1)(a); and High Court Rules 2016, r 14.2(1)(a). This reflects the merits of interlocutory applications and substantive proceedings are appropriately distinct: see Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].

4      De Boer v Attorney-General, above n 1, at [20]–[23].