Dotcom v Minister of Justice
[2025] NZHC 1318
•26 May 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-583 [2025] NZHC 1318
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
KIM DOTCOM
Applicant
AND
MINISTER OF JUSTICE
First Respondent
COMMISSIONER OF POLICE
Second Respondent
Hearing: On the papers Appearances:
R M Mansfield and S L Cogan for Applicant
J E Hodder KC and S J Leslie for First Respondent
G M Taylor and F R J Sinclair for Second RespondentJudgment:
26 May 2025
JUDGMENT OF McHERRON J
(Costs)
[1] I dismissed the applicant’s discovery application in a judgment dated 13 December 2024.1 Subsequently I dismissed the applicant’s application for leave to appeal that judgment.2 In this judgment, I determine the respondents’ applications for costs in respect of both judgments.
1 Dotcom v Minister of Justice [2024] NZHC 3834.
2 Dotcom v Minister of Justice [2025] NZHC 637.
DOTCOM v MINISTER OF JUSTICE [2025] NZHC 1318 [26 May 2025]
Discovery application
[2] Following my decision dismissing the applicant’s discovery application, the respondents applied for costs and disbursements as itemised in schedules attached to their respective memoranda. In addition to costs for the steps directly associated with the interlocutory application, each respondent seeks 50 per cent of the scale costs for other preliminary steps in respect of which timetabling for the discovery application was discussed. These steps include preparation and filing a memorandum for, and appearance at the first case management conference for Mr Dotcom’s judicial review proceeding on 21 October 2024.
[3] The applicant disputes the inclusion of these preliminary steps. He submits these steps are simply part of the general case management of the proceeding. The applicant says that costs on the interlocutory applications should be limited to steps exclusively related to the application itself.
[4] The applicant also submits there should be a 50 per cent reduction in costs to the second respondent to reflect the overlap between the respondents’ respective oppositions to the applications and the efficiencies achieved by both respondents being represented. The applicant submits that the first respondent was the “lead respondent” and the issues required to be addressed by the second respondent were relatively confined, namely the application of s 57 of the Evidence Act 2006. This occupied relatively little hearing time as it was a legal issue requiring little by way of affidavit evidence.
[5] The respondents submit they are both entitled to full costs in respect of each application. They point out that the discovery application sought different documents from each of them and so each was required to defend the application on a different basis from the other.
Application for leave to appeal
[6] After the dismissal of the applicant’s application for leave to appeal the discovery decision, the first respondent submitted that both respondents should be awarded full costs on that leave application. The second respondent submitted a
revised schedule setting out scale costs claimed in relation to both applications (including the 50 per cent allowance claimed for preliminary steps) amounting to
$18,709 plus $248.70 disbursements (for two notices of application), a total of
$18,957.70. The first respondent’s claim for costs is slightly higher, $20,297.50 because an additional preliminary step is claimed relating to the filing of a memorandum for the first case management conference.
[7] The second respondent points out that as a costs award according to scale would exceed his actual costs, he only seeks an order for the costs actually incurred,
$15,943.20 plus disbursements.
Stay
[8] The applicant also submits that enforcement of any costs order should be stayed pending determination of his application for special leave to appeal. No authorities were advanced in support of the applicant’s position in this regard. In response, the first respondent points out that the applicant has not identified any matters which justify preserving the position (for instance, that the appeal be rendered nugatory without a stay or that the first respondent would be unable to repay costs if the appeal succeeded).3
My assessment
[9] All matters relating to costs are at the discretion of the Court.4 Generally speaking, costs follow the event.5 Unless there are special reasons to the contrary, costs on opposed interlocutory applications must be fixed in accordance with the High Court Rules when the application is determined and become payable when they are fixed.6 If it appears to the Court that respondents to a proceeding who are defending the proceeding separately could have joined in their defence, the Court must not allow more than one set of costs unless it appears that there is good reason to do so.7
3 Sullivan v Wellsford Properties Ltd [2018] NZHC 708.
4 High Court Rules 2016, r 14.1.
5 Rule 14.2(1)(a).
6 Rule 14.8(1).
7 Rule 14.15.
[10] I agree with the applicant’s submission that the preliminary steps should not be included in the respondents’ application for costs relating to the discovery application and the application for leave to appeal. Schedule 3 to the High Court Rules 2016, which sets out the time allocations that are applicable when scale costs are calculated, has a specific heading for interlocutory applications under which numbered items 22 to 29 are included. The preliminary steps for which the respondents additionally seek costs are not listed within that grouping under the interlocutory applications heading. This is acknowledged by them in their claim for only 50 per cent of the costs for those preliminary steps as they accept that other matters relating more generally to the applicant’s judicial review proceeding were covered.
[11] In general, in an application for fixed costs on an interlocutory application, it is inconsistent with the principle that the determination of costs should be predictable and expeditious to include components of other steps in the proceeding beside the specific steps numbered under the interlocutory applications heading. Doing so is likely to lead to disputes about the appropriate proportion of costs to include in relation to the interlocutory application and which proportion to leave to be considered later as part of the general proceeding. The complexity of costs considerations will therefore increase potentially at both stages if parties seek to relitigate the extent of contribution. It is likely to be more predictable and expeditious to limit fixed cost awards on interlocutory applications to the matters specified in sch 3.
[12] For these reasons I dismiss the respondents’ applications in respect of items 10, 11 and 13 of sch 3.
[13] I also accept the applicant’s submission that the second respondent’s costs should be reduced in relation to the steps preparatory to the hearing, items 23 and 24. I agree that the appropriate reduction is 50 per cent in relation to those steps. I do not intend to reduce the costs award to the second respondent in relation to time for the appearance at the hearing under item 26 as the second respondent needed to attend the whole of both hearings not just the part relating to its argument.
[14] This results in a reduced costs award in relation to both applications for the second respondent in the sum of $10,060.50, which corresponds to just under two
thirds of the actual costs incurred by the second respondent. This outcome is consistent with the principle underlying the appropriate daily recovery rate, that costs should normally be two-thirds of the daily rate considered reasonable.8
[15] Finally, I do not intend to stay this costs award pending the applicant’s application for special leave to appeal. As summarised by the authors of The Law of Costs in New Zealand, there is no presumption that determination of costs should be deferred pending an appeal.9 The ability of the Court of Appeal to set aside a costs award if a substantive appeal is successful tells against deferring determination of costs.10
[16] Accordingly, I allow the first respondent’s costs and disbursements application in the sum of $17,722.20 and the second respondent’s costs and disbursement application in the sum of $10,309.20, as set out in the table below.
McHerron J
Solicitors:
Holland Beckett, Tauranga for Applicant
Luke Cunningham Clere, Wellington for Respondents
8 Rule 14.2(1)(d).
9 David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at [8.1], citing Strathboss Kiwifruit Ltd v Attorney-General [2019] NZHC 62 at [6].
10 Clayton v Currie [2018] NZHC 2544 at [4].
| General civil proceedings Interlocutory applications (including applications for summary judgment and for review of interlocutory decisions) | A, B, C* | Days | First respondent | Second respondent |
| 23 Filing opposition to interlocutory application (discovery) | B | 0.60 | 2,118.00 | 1,059.00 |
| 23 Filing opposition to interlocutory application (leave to appeal) | B | 0.60 | 2,118.00 | 1,059.00 |
| 24 Preparation of written submissions (discovery) | B | 1.50 | 5,295.00 | 2,647.50 |
| 24 Preparation of written submissions (leave to appeal) | B | 1.50 | 5,295.00 | 2,647.50 |
| 25 Appearance at hearing of defended application for sole or principal counsel (discovery) | 0.50 | 1,765.00 | 1,765.00 | |
| 25 Appearance at hearing of defended application for sole or principal counsel (leave to appeal) | 0.25 | 882.50 | 882.50 | |
| Total costs | $17,473.50 | $10,060.50 | ||
| Disbursements | ||||
| Court filing fees | 248.70 | 248.70 | ||
| Total Costs and Disbursements | $17,722.20 | $10,309.20 |
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