Dunstan v District Court at Manukau

[2021] NZHC 582

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-996

[2021] NZHC 582

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review

BETWEEN

TANYA FELICITY DUNSTAN

Applicant

AND

THE DISTRICT COURT AT MANUKAU

First Respondent

JOHN DUDLEY NEILL
Second Respondent

PATRICIA PLOWRIGHT, KAREN ALLEN, RACHAEL HARRIOTT AND TRICIA

STEVENSON

Third Respondents

Hearing:

On the papers

Counsel:

Appearances:

V McCall, Counsel assisting the Court

TF Dunstan, Applicant in person

Judgment:

22 March 2021

JUDGMENT OF FITZGERALD J

[as to costs]

This judgment was delivered by me on 22 March 2021 at 2.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:        Crown Law, Wellington

Date……………

To:C Wrightson, Wellington T Dunstan, Auckland

J Neill, Auckland

Heaney & Partners (P Robertson), Auckland

Introduction

[1]    Ms Dunstan wanted to commence a private prosecution against her former partner and various employees of a primary school, in connection with the care of her and her partner’s seven year old son. The District Court rejected Ms Dunstan’s charging documents for filing. Ms Dunstan then applied to this Court for judicial review of the District Court’s decision.

[2]    In my substantive judgment delivered on 26  February  2021,  I  dismissed Ms Dunstan’s application for judicial review.1 I noted that the application “must fail, and fail by some margin”.2

[3]    Fairly early on in these proceedings, the respondents indicated they did not intend to participate in the proceeding and would abide the Court’s decision. No doubt they were influenced by the cost of participating in the proceeding.

[4]    Given that none of the respondents were to actively participate in the proceedings, the Court directed that the Solicitor-General nominate a suitably qualified lawyer to be appointed as counsel assisting the Court. Ms McCall, of Crown Law in Wellington, was appointed for this purpose. Ms McCall filed written submissions and made oral submissions at the hearing before me. She effectively took on the role of “contradictor”. Her written and oral submissions were of material assistance to the Court.

[5]    Counsel assisting the Court (on behalf of Crown Law) now seeks a relatively modest contribution to the costs incurred by Crown Law in acting in this case, reflecting the work required to respond to the claim in circumstances of urgency (given Ms Dunstan had requested that her matter be dealt with as a matter of priority). Counsel assisting accordingly seeks an order that Ms Dunstan make a contribution to counsel’s costs pursuant to s 178 of the Senior Courts Act 2016 (the Act).

1      Dunstan v The District Court at Manukau [2021] NZHC 311.

2 At [62].

[6]Counsel seek orders for payment of costs as follows:

(a)preparation time for the hearing: 10 hours at $252.00 per hour;

(b)travelling time: 2 hours (one return flight to Auckland): 2 hours at

$166.00 per hour (which excludes transit time getting to and from airports); and

(c)appearance time: $1,008.00 per half day, reduced because the hearing was a quarter day to $500.00.

[7]    The total costs award sought is $3,352.00. This is materially less than any scale costs award that might have been made in favour of any one or more of the respondents,  had  they  actively  participated  in  the  proceedings  and  opposed   Ms Dunstan’s application for judicial review.

Costs pursuant to s 178 of the Senior Courts Act 2016 - principles

[8]Section 178 provides as follows:

178     Costs where intervener or counsel assisting court appears

(1)This section applies to proceedings in any senior court or other court.

(2)If the Attorney-General or the Solicitor-General or any other person appears as an intervener or counsel to assist or counsel to assist the court in any civil proceedings or in any proceedings on any appeal and argues any question of law or of fact arising in the proceedings, the court may, subject to the provisions of any other Act, make any order it thinks just—

(a)as to the payment by any party to the proceedings of the costs incurred by the Attorney-General or the Solicitor-General in so doing; or

(b)as to the payment by any party to the proceedings or out of public funds of the costs incurred by any other person in so doing; or

(c)as to the payment by the Attorney-General or the Solicitor- General or that other person of any costs incurred by any of those parties by reason of his or her so doing.

…

[9]    There are limited authorities addressing the principles to be applied in exercising what on its face is a broad discretion contained in s 178. However, in Earthquake Commission v Insurance Council of New Zealand Inc, the full court of the High Court explained that the following factors will likely be relevant to whether an order under s 99A of the Judicature Act 1908 (the predecessor provision to s 178) is appropriate: 3

(a)Whether the case involves a matter of substantial public importance. This was said by the Court to be critical if costs were sought to be paid from public funds.

(b)Whether the applicant represents a field of interest relevant to the proceedings beyond their private or personal viewpoint.

(c)Whether the applicant has provided material assistance to the Court, by presenting evidence or submissions on an issue or issues not adequately covered by other parties or at all.

(d)Whether any of the principles guiding an award of costs under Part 14 of the High Court Rules may be applicable by analogy. This was said to be particularly relevant in cases where an order is sought against a party (as in this case), rather than that costs be paid from public funds.

Application of the principles in this case

[10]   I am satisfied it is appropriate for a costs award to be made in favour of counsel assisting the Court against Ms Dunstan. I say this for the following reasons.

[11]   First, Ms Dunstan’s application for judicial review failed, and as noted earlier, failed by some margin. In the ordinary course, had any of the respondents chosen to participate in the proceedings, a costs award would have been made in their favour against Ms Dunstan, possibly on an uplifted basis. For that reason, the principle set

3      Earthquake Commission v Insurance Council of New Zealand Inc [2015] NZHC 457, (2015) 22 PRNZ 427 at [6].

out at [9](d) above is particularly relevant, namely those principles guiding awards of costs under Part 14 of the High Court Rules being applicable by analogy.4

[12]   Second, counsel assisting the Court, in both her written and oral submissions, provided material assistance to the Court on issues not adequately covered by any other party, including Ms Dunstan. In particular, Ms McCall’s submissions carefully and properly set out for the Court the approach to judicial review in a case of this nature; the statutory principles applicable to the commencement of private prosecutions in the District Court; and submissions on the appropriateness (or otherwise) of aspects of the relief sought by Ms Dunstan.

[13]   Third, were there to be no costs award in this case, there would be no incentive for Ms Dunstan to carefully consider the merits and/or risks attaching to commencing and/or continuing civil proceedings, particularly when it becomes evident from an early stage that no respondents propose to engage in the proceedings. Proceedings in such circumstances still demand considerable resources of this Court, and direct scarce court hearing time away from other litigants.

Result

[14]   There is accordingly a costs award in Crown Law’s favour against Ms Dunstan in the sum of $3,352.00.

Fitzgerald J

4      See a similar approach taken in Hall v Wellington Standards Committee (No. 2) [2013] NZHC 1867 at [24].