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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Denize v Attorney-General

Details

AGLC: Denize v Attorney-General [2020] NZHC 3215
Case: [2020] NZHC 3215
Decision Date: 7 December 2020

CaseChat Overview and Summary

The case of Denize v Attorney-General involves an application for judicial review of a decision by the Ministry of Social Development (MSD) not to refer a decision regarding the applicant's benefit entitlement to the Benefit Review Committee (BRC). The applicant, Megan Denize, sought costs and disbursements associated with her legal advice and the filing of the proceeding. The key legal issue before the court was whether Denize could claim the costs of legal advice obtained prior to filing her judicial review application and associated disbursements, given that she represented herself in the proceeding.

The court considered the relevant principles governing costs for litigants-in-person, recognising that they are not generally entitled to recover costs but may claim reasonable disbursements. The court also noted the guidance from Re Collier, which suggests a reasonably liberal approach to assessing and classifying reasonable disbursements claimed by litigants-in-person. The court found that Denize's legal advice had a direct connection to the proceeding, was reasonably necessary for its conduct, and was reasonable in amount. The court also considered it artificial to differentiate between costs relating to the SSAA appeal process and Denize's engagement with MSD and the BRC, given the inter-related nature of the processes.

Based on the above reasoning, the court allowed Denize's claim for costs of $2,300 for obtaining legal advice and of $502.38 for travel and parking costs incurred in obtaining that advice, as well as $530.09 for service and binding fees and travel costs incurred in filing documents in the High Court. The total amount of $3,332.47 was to be paid by the respondent as set out in Denize's memorandum of 22 October 2020.

Orders