Fabian v New Zealand Government

[2013] NZHC 1891

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4576 [2013] NZHC 1891

BETWEEN  TYRONE MAUNGA URAUTUNI FABIAN

Plaintiff

ANDNEW ZEALAND GOVERNMENT First Defendant

ATTORNEY GENERAL Second Defendant

Hearing:                   On the papers

Appearances:

Judgment:                29 July 2013

COST JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 29 July 2013 at 4 pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date ..........................

FABIAN v NEW ZEALAND GOVERNMENT [2013] NZHC 1891 [29 July 2013]

[1]      I  issued  a  judgment  on  28  June  2013  striking  out  the  plaintiff’s  fourth amended statement of claim and making an order dismissing the proceeding.   I reserved the issue of costs in respect of which I made the following observations:

[27]     On the matter of costs I make these observations: ordinarily, under the statutory costs regime, costs will follow the event.   This may be a case where costs are not pursued or if they are pursued, costs would be warranted on a Category 1 Band A basis given that the issues are so clear cut.  If costs are pursued, counsel for the Attorney is to file and serve a memorandum within 5 working days and Mr Fabian is to have a further 5 working days in which to respond should he wish to do so.

[2]      Counsel for Attorney has filed a memorandum seeking costs on a Category 1

Band basis for costs of $3,498 and disbursements of $1,408.16, making a total of

$4,906.16.

[3]      The plaintiff in his memorandum filed in response seeks that no order for costs be made.  Essentially, his submission is twofold.  He says he tried his best to rectify the deficiencies in his statement of claim in circumstances where he was unable to secure legal representation.  Secondly, he says he receives a pension which is his only income.

[4]      I accept that there may be a certain pointlessness in making an order for costs given the plaintiff’s limited income.  I also accept that he has struggled without legal representation to comply with the Court’s direction that the claim be pleaded in conformity  with  the  basic  requirements  in  the  High  Court  Rules  regulating pleadings.   However, during the process of case management the Associate Judge who was case managing the file gave clear indications that the plaintiff’s pleading was seriously deficient and did not comply with those basic requirements.   Such requirements apply to all litigants including those who lack representation, and are designed to ensure that all parties (represented or unrepresented) have fair notice of the opposing party’s case.  Unfortunately for the plaintiff it is incumbent on him to comply with those requirements as it is on other litigants.  He has had the benefit of considerable time to get his pleading in order without putting the defendant to the unnecessary time and cost of being put to the trouble of making a formal application.

[5]      Additionally, the plaintiff can now be in no doubt that his claim was doomed to fail given that it was based on untenable claims to Maori Sovereignty.  That must have been plain when he received counsel for the Attorney’s submissions if not beforehand.  He had the opportunity to discontinue at that point.  Had he done so, he may have found counsel for the Attorney more receptive to the suggestion that he should not have to pay compensation for the Attorney’s costs.

[6]      Balancing these factors, while I have sympathy for the plaintiff’s position and accept, as noted in my judgment that the beliefs he has acted upon are sincere, I am not satisfied that  there  are sufficient  circumstances to depart from  the statutory presumption in the High Court costs regime that costs follow the event.  However, I take into account, as the Attorney plainly has to a degree, that the case was straightforward and readily answered.  I also allow some discount for the plaintiff’s misguided sincerity, his lack of representation, and his limited income.   In these circumstances the result is:

a)        I make no order for costs on the steps taken in respect of the case management conferences and related memoranda and appearances.

b)I  order  costs  on  a  Category  1  Band  A  basis  for  the  following claimable steps:

22Filing    interlocutory     application    for strike out, dated 08/04/13

A    0.30      396.00

24     Preparation of written submissions             A    0.50       660.00

25Preparation by applicant of bundle for hearing

A    0.40      528.00

26Appearance at hearing of defended application on 10 June 2013 for sole or principal counsel

0.25      330.00

Total  1,914.00

c)        I order that the Attorney is entitled to the disbursements claimed of

$1,408.16.

[7]      The total award I make is therefore $3,322.16.

Associate Judge Sargisson