Denize v Attorney-General

[2020] NZHC 3215

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV 2020-488-000046

[2020] NZHC 3215

UNDER THE

Judicial Review Procedure Act 2016; Part 30 of the High Court Rules

IN THE MATTER OF

An application for Judicial Review

BETWEEN

MEGAN DENIZE

Applicant

AND

THE ATTORNEY GENERAL ON BEHALF OF THE CHIEF EXECUTIVE OF MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:

On the papers

Counsel:

Applicant Self-Represented

J K Gorman & S P R Conway for the Respondent

Judgment:

7 December 2020

JUDGMENT OF VAN BOHEMEN J

in relation to costs

This judgment was delivered by me on 07 December 2020 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Law Office, Wellington Copy to:

Applicant

DENIZE v THE ATTORNEY GENERAL ON BEHALF OF THE CHIEF EXECUTIVE OF MINISTRY OF

SOCIAL DEVELOPMENT [in relation to costs] [2020] NZHC 3215 [7 December 2020]

Introduction

[1]    On 17 July 2020, Megan Denize applied to review a decision taken by the Ministry of Social Development (MSD) on 10 June 2020 not to a refer a decision it took on 29 October 2019 regarding Ms Denize’s benefit entitlement to the Benefit Review Committee (BRC).

[2]    At a telephone conference on 15 October 2020, Ms Denize, who is self- represented, and Crown counsel for the Attorney-General on behalf of the Chief Executive advised that the issue that had led to the proceeding had been resolved and the Chief Executive of the Ministry of Social Development had agreed to refer the decision on Ms Denize’s benefit entitlement to the BRC. However, the parties had been unable to agree costs. I asked the parties to file submissions.1

[3]    In  the  event,  Ms Denize  filed  three memoranda, dated 22 October 2020,   5 November 2020 and 19 November 2020. Crown counsel also filed three memoranda, dated 29 October 2020, 9 November 2020 and 17 November 2020.

[4]    Given that the total amount at issue is under $3,400.00, the amount of effort and time involved seems somewhat disproportionate.  However,  I  recognise that  Ms Denize has limited means and the issues are important to her.

Relevant principles

[5]    Ms Denize is a lay litigant who represented herself in the proceeding. However, prior to filing the proceeding she obtained some legal advice. The main issue in contention is whether Ms Denize can claim the cost of that advice and costs associated with those costs. An aspect of that issue is whether the advice Ms Denize received was in relation her judicial review application or to an appeal she had made to the Social Security Appeal Authority (SSAA).

1      Megan Denize v Chief Executive of the Ministry of Social Development HC Whangarei CIV-2020- 488-46, 15 October 2020 (Minute of van Bohemen J).

[6]    Litigants-in-person are not entitled to recover costs in New Zealand.2. However, litigants-in-person are entitled to “reasonable disbursements” in the discretion of the Court,3 which may include sums paid to a solicitor for help in preparing documents, preparing to appear and argue the case in person, as well as associated travel costs.4 In Re Collier, the Court of Appeal held a “reasonably liberal approach” should be taken to assessing and classifying reasonable disbursements claimed by litigants-in-person.5

[7]    A disbursement must be approved by the court as an expense paid or incurred for the purposes of the proceeding;6 specific to the conduct of the proceeding;7 reasonably necessary for the conduct of the proceeding;8 and reasonable in amount.9

Ms Denize’s claim

[8]Ms Denize claims costs and disbursements totalling $3,332.47 as follows:

(a)Four invoices for the services of a barrister:

(i)Invoice dated 18 November 2019 for $1,000.00, titled “Re SSAA” with narration “For discussions with you and for reading decision and opening file …”;

(ii)Invoice dated 23 January 2020 for $300.00, titled “Re SSAA” with narration “For discussion re discovery and requirements for hearing before SSAA”;

2      This is the “primary rule” in McGuire v Secretary for Justice [2018] NZSC 116 at [88]. The law is not settled as to whether this rule may be departed from in exceptional circumstances: the Supreme Court in McGuire left this question open in fn 42 of [55].

3      Re Collier (A Bankrupt) [1996] 2 NZLR 428, (1996) 10 PRNZ 145 (CA) at 147.

4      Knight v Veterinary Council of New Zealand HC Wellington CIV-2007-485-1300, 31 January 2009; Working Capital Solutions Holdings Ltd v Pezaro [2014] NZHC 2480; Harrison v Keogh [2015] NZHC 3320.

5      Above n 7.

6      High Court Rules 2016, r 14.12(2)(a)(i); or, as provided in r 14.12(2)(a)(ii), of a class specified in r 14.12(2)(b).

7      High Court Rules 2016, r 14.12(2)(b). 8     High Court Rules 2016, r 14.12(2)(c). 9   High Court Rules 2016, r 14.12(2)(d).

(iii)Invoice dated 17 February 2020 for $500.00, titled “Re SSAA” with narration “For assisting you with preparing submissions and for discussion with you and for attendance at conference

…”; and

(iv)Invoice dated 11 March 2020 for $500.00, titled “Re SSAA” with narration “For assisting you with ongoing issues with the appeal process and for discussion re unreasonable demands being made on you …”;

(b)$502.38 for travel and parking costs incurred in obtaining legal advice; and

(c)$530.09 for service and binding fees and travel costs incurred in filing documents in the High Court.

Crown counsels’ position

[9]    Crown counsel accept Ms Denize’s claim for $530.09 for service and binding fees and travel costs incurred in filing documents in the High Court.

[10]   Crown counsel also accept that, in some circumstances, costs incurred by lay litigants in obtaining legal advice can be recoverable as reasonable disbursements.10 However, they say that the costs for obtaining legal advice and the costs associated with obtaining that advice were incurred in relation to an appeal Ms Denize had brought to the SSAA and that costs in relation to that appeal should be addressed in accordance with the SSAA’s own, separate costs regime. They also say that the costs were all incurred before 10 June 2020, the date of the MSD decision that Ms Denise sought to review. They refer to High Court’s decision in Sandilands v New Zealand Law Society11 and say that the Court should take a precise, narrow approach to

10     Citing Re Collier (A bankrupt), above n 3.

11     Sandilands v New Zealand Law Society [2017] NZHC 2640 at [7].

determining whether the invoices are for advice that is sufficiently specific to the questions in the proceeding.12

[11]   Ms Denize contests Crown counsels’ position and says that the legal advice was all obtained after 29 October 2019, the date of the substantive decision at issue, was directly related to the subject matter of the proceeding and was relied on during the proceeding.

Events leading to the proceeding

[12]   Ms Denize has been engaged with MSD since February 2018 when she applied for assistance after stopping work. The timeline of Ms Denize’s engagement with MSD is as follows:

·     1 February 2018 – Ms Denize applied to MSD for support.

·     17 October 2018 – MSD declined Ms Denize’s application.

·     12 April 2019 – BRC upheld MSD decision to decline Ms Denize’s application.

·     20 June 2019 – Ms Denize appealed MSD decision to SSAA.

·     July 2019 – MSD advised Ms Denize it had reviewed its earlier decision and now accepted she was eligible for Jobseeker support and made a payment to reflect that decision. However, it also told her that her application for supplementary assistance was still outstanding and remained before the SSAA.

·     29 October 2019 – MSD advised Ms Denize that she did not qualify for supplementary assistance.

12     Citing Knight v Veterinary Council of New Zealand HC Wellington CIV-2007-485-1300, 31 July 2009 at [6].

·     24 February 2020 – Ms Denize applied to have the decision of 29 October 2019 referred to the BRC for review.

·     10 June 2020 – MSD declined to refer the decision of 29 October 2019 referred to the BRC for review.

·     17 July 2020 - Ms Denize filed proceeding application to review MSD’s decision of 10 June 2020.

·     13 August 2020 – Ms Denize filed further judicial review proceeding in relation to SSAA appeal.

·     27 August 2020 – Brewer J stayed Ms Denize’s appeal to the SSAA pending resolution of further judicial proceeding.

·     15 October 2020 – Ms Denize and Crown counsel informed the Court that the present proceeding had been resolved but for costs.

Discussion

[13]   It is apparent from the above timeline that all Ms Denize’s engagements with MSD, the BRC and the SSAA stemmed from her initial application on 1 February 2018. Ms Denize’s appeal to the SSAA was because her application had been declined by MSD and by the BRC. That appeal was then partly overtaken by events when MSD reconsidered its position and advised Ms Denize she was entitled to the Jobseeker benefit.

[14]   Even though MSD had told Ms Denize that her appeal to the SSAA remained on foot in relation to her entitlement to supplementary assistance, MSD again intervened and advised that Ms Denize was not entitled to that assistance. It was at that point that Ms Denize sought and obtained legal advice. Ms Denize says the advice related to her wish to understand the respective jurisdictions of the SSAA and the BRC. Given what had happened up to that point, that is understandable and appropriate. At the same time, it is apparent from the narrations on some of the invoices that much of the advice also bore on the SSAA appeal process.

[15]   Even so, most of the legal advice was provided before 24 February 2020 when Ms Denize applied to have the decision of 29 October 2019 referred to the BRC for review. It is reasonable to infer that the advice had a direct bearing on that application. It was as a result of that application that MSD made its decision of 10 June 2020 declining to refer its decision of 29 October 2019 to the BRC. It was the decision of 10 June 2020 that Ms Denize then sought to review.

[16]    Given that history, I am satisfied that the legal advice has a direct connection to the proceeding and was an expense paid or incurred for the purposes of the proceeding, was reasonably necessary for the conduct of the proceeding, and was reasonable in amount.

[17]   I am also satisfied that it is somewhat artificial to differentiate between the SSAA appeal process and Ms Denize’s engagement with MSD and the BRC, and between costs relating to those processes since the processes are inter-related. That is demonstrated by the fact that MSD twice intervened to make decisions that bore directly on the appeal process, including its decision of 29 October 2019 which led directly to the decision of 10 June 2020.

[18]   For these reasons and having regard to the Court of Appeal’s  guidance in    Re Collier13 that the Court should take a reasonably liberal approach, as was also emphasised in Sandilands,14 I consider that Ms Denize has made out her claim for costs of $2,300 for obtaining legal advice and of $502.38 for travel and parking costs incurred in obtaining that advice.

Order

[19]I direct that the respondent pay the applicant disbursements of $3,332.47 as set

13     Above n 3.

14     Above n 4, at [3], [12]-[13].

out in the applicant’s memorandum of 22 October 2020.

G J van Bohemen J