Hager v Her Majesty's Attorney-General

[2016] NZHC 2672

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-11344 [2016] NZHC 2672

UNDER

the Judicature Amendment Act 1972, Part

30 of the High Court Rules, the Bill of Rights Act 1990, and the Search and Surveillance Act 2012

IN THE MATTER

of an application for judicial review

AND IN THE MATTER

of a search warrant issued by the District
Court at Manukau on 30 September 2014

BETWEEN

NICHOLAS ALFRED HAGER Applicant

AND

HER MAJESTY'S ATTORNEY- GENERAL

First Respondent

THE NEW ZEALAND POLICE Second Respondent

THE MANUKAU DISTRICT COURT Third Respondent

On the papers
Counsel:	J G Miles QC, F E Geiringer and S J Price for Applicant B Horsley and K Laurenson for First and Second Respondents
Judgment:	8 November 2016

JUDGMENT OF CLIFFORD J (COSTS)

Introduction

[1]      In these proceedings Mr Hager challenges the lawfulness of a search warrant issued by the District Court at Manukau on 30 September 2014 allowing the police

HAGER v ATTORNEY-GENERAL [2016] NZHC 2672 [8 November 2016]

to search his home.  He also challenges the search of his home that the police carried out pursuant to that warrant, in his absence, on 2 October 2014.

[2]      By way of relief, Mr Hager seeks declarations of illegality, the return of the seized material and New Zealand Bill of Rights Act 1990 (NZBORA) damages.

[3]      In my judgment of 17 December 2015 I dealt with the first two issues of relief, finding in Mr Hager’s favour.1   By agreement between the parties, Mr Hager’s claim for NZBORA damages is to be heard subsequently and separately.

[4]      The question of costs was not addressed in the hearing before me, and I did not deal with it in my judgment.

[5]      Mr Hager has now applied for indemnity costs totalling $475,082.78.  In the alternative Mr Hager argues that, if the Court considers scale costs appropriate, they should be determined on a Category 3 basis, with costs certified for second and third counsel and with certain steps being calculated on a Band C basis.  Calculated on the suggested basis, Mr Hager asks for an award of scale costs of $232,672.78.

[6]      Two basic issues arise.  First, whether an award of costs should be made now. If so, on what basis should it be made?

Costs now?

[7]      I am satisfied that, in the circumstances of this case, it is appropriate that there be an award of costs now, at the end of the first stage of these proceedings. The issues of legality argued before me raise conceptually distinct issues from those which will be considered in terms of Mr Hager’s claim for NZBORA damages, even recognising that his claim for those damages will rest on my finding of illegality. Moreover, as matters transpired and as my judgment shows, I based that finding on my assessment of the implications of the Crown’s duty of candour when applying for a search warrant, as it relates to the recognition of journalistic privilege now found in

the Search and Surveillance Act 2012 and the issues relating to media warrants

1      Hager v Attorney-General [2015] NZHC 3268.

identified by the Court of Appeal in Television New Zealand v Attorney-General.2

This was based on illegality arguments, rather than Mr Hager’s argument as to

NZBORA unreasonableness.

[8]      Thus my declaration of illegality has, quite separately from any question of

NZBORA damages, considerable significance in its own right.

[9]      It is essentially for that reason that I consider that an award of costs at this stage is appropriate.

Quantum

[10]     I turn to the question of quantum.   Mr Hager seeks costs on an indemnity basis by reference to decisions such as Attorney-General v Van Essen3 and Attorney- General v Udompun.4

[11]     In my view, those cases show the close relationship between any award of NZBORA damages and the appropriateness or otherwise of indemnity costs.  That much is clear from the Court of Appeal’s decision in Van Essen.   The Supreme Court’s decision in Taunoa v Attorney-General also emphasises the concept of the “package of relief” necessary to provide an effective remedy for the breach of the

right  concerned  in all the circumstances  in question.5     Moreover,  as Van Essen

shows, questions of fact – as yet unresolved – as to the manner in which the police obtained the warrant, conducted the search and thereafter responded to these proceedings, will all be of significance for NZBORA damages and indemnity costs.

[12]     I am therefore satisfied that, as the respondents submit, it would be premature to award Mr Hager indemnity costs, or indeed increased costs, at this juncture. Those matters will be able to be fairly considered following the second stage of these proceedings.  They are not, in my view, capable of proper resolution on the papers, particularly given the limited (if any) role I played in the complex interlocutory

process that preceded the substantive hearing.

2      Television New Zealand v Attorney-General (TVNZ) [1995] 2 NZLR 641 (CA).

3      Attorney-General v Van Essen [2015] NZCA 22.

4      Attorney-General v Udompun [2005] 3 NZLR 204 (CA).

5      Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.

Outcome

[13]     On that basis, I make an award of costs in favour of Mr Hager on a scale basis.  For that purpose, I accept the submission that the proceedings raised complex issues justifying a Category 3 characterisation.  I certify for a second, but not third, counsel.  There was a degree of overlap between the submissions of both second and third counsel with those advanced by Mr Miles.  Band B will apply generally, but I accept the submissions of counsel for Mr Hager as to those steps for which Band C time costs would be appropriate.

“Clifford J”

Solicitors:

Bennion Law, Wellington for Applicant