Jensen v Attorney-General

[2016] NZHC 2285

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-743 [2016] NZHC 2285

IN THE MATTER

of an application for Judicial Review

UNDER

the Judicature Amendment Act 1972, the New Zealand Bill of Rights Act 1990 and/or the Common Law

BETWEEN

PHILIP JAMES JENSEN Plaintiff

AND

THE ATTORNEY-GENERAL IN RESPECT OF THE MINISTRY OF JUSTICE

Defendant

On the papers
Counsel:	J L Bates for Plaintiff D Harris and A L Dixon for Defendant
Judgment:	27 September 2016

JUDGMENT OF CLIFFORD J (COSTS)

[1]      Philip Jensen, the plaintiff in these judicial review proceedings, is a lawyer. Mr Jensen is a party to a provider contract for legal aid services with the Secretary for Justice.  As relevant, Mr Jensen works as a duty solicitor in the District Court at Napier.  He has done so for many years.

[2]      The Legal Services Act 2011 and the Legal Services (Quality Assurance) Regulations 2011 now govern the approval and oversight of lawyers who provide legal aid services.    The Secretary has published a provider manual.  The provider manual establishes a complaint management system regarding legal aid complaints.

The guiding principles of the complaints management system include that:

JENSEN v THE ATTORNEY-GENERAL IN RESPECT OF THE MINISTRY OF JUSTICE [2016] NZHC 2285 [27 September 2016]

The Ministry will conduct its processes in accordance with the principles of natural justice (fairness, transparency and consistency).

The complaints process:

…

·     thoroughly investigates all matters …

[3]      In March 2015 Mr Jensen was the subject of a complaint by two employees of  the  Public  Defence  Service.    That  service  now  supervises  the  duty  solicitor scheme.  A complaints officer (CO) subsequently determined that the complaint had been established. As provided for in the complaints management process, Mr Jensen sought a review of the CO’s decision. The reviewer upheld that decision.

[4]      Mr Jensen challenged that decision.  He said, amongst other things, that the Secretary failed to follow his stated procedures and principles of natural justice.  The Secretary had, Mr Jensen said, failed to thoroughly investigate the complaint.

[5]      By way of relief Mr Jensen sought declarations of breaches of natural justice and illegality in the process whereby the CO and the reviewer made the decisions, and orders setting aside those decisions.

[6]      Mr Jensen’s application for judicial review was scheduled to be heard in this Court on 18 May 2016.   On 17 May 2016 the parties filed a joint memorandum seeking judgment by consent on the following terms:

(a)       The CO’s decision is set aside;

(b)       The reviewer’s decision is set aside;

(c)       The defendant is directed to reconsider Mr McGuire’s complaint

pursuant to the provider manual and the principles of natural justice; (d)     Costs be reserved.

[7]      As to the question of costs, the joint memorandum then read:

Counsel for each party notes that the Plaintiff maintains that the complaint the subject of these proceedings was not thoroughly investigated, and as a consequence of that the affidavit of Michael McAleer sworn and filed in these proceedings was not obtained through the fault of the Defendant.  The Defendant denies such fault but nevertheless agrees that the decisions be set

aside and reconsidered in accordance with the Provider Manual and the principles of natural justice.  Accordingly, the parties accept that the parties are free to advance these respective views in the context of submissions as to costs.

Accordingly, in relation to (d) above the parties seek the following timetable orders in the event that costs cannot be resolved between the parties:

(a)	Any application for costs be filed by Memorandum with the Court within 14 days i.e. 31 May 2016;
(b)	Any opposition to the Plaintiff’s application for costs be filed by Memorandum within a further 14 days i.e. 14 June 2016;
(c)	The Court determine the question of costs on the papers.
[8]	That	day  I  endorsed   that  memorandum  “Orders  accordingly.	Costs

Reserved”.

[9]      Mr Jensen’s lawyer, Mr Bates, addressed costs in a memorandum of 30 May

2016.  Mr Bates did not advance Mr Jensen’s views on the questions of “thorough investigation” and “late filing of the McAleer affidavit”.  He simply sought costs as following the event.

[10]     In a memorandum of 17 June 2016 (filed in replacement of a memorandum of 14 June 2016), Ms Harris, counsel for the Attorney-General, opposed any award in Mr Jensen’s favour and sought costs against Mr Jensen.  She did so on the basis that there was no successful party, and therefore the principle the unsuccessful party should pay costs was “not relevant in this case”.  Counsel for the Attorney-General made that submission by reference to the fact that:

(a)      The  Attorney  had  proposed  the  vacation  of  the  hearing  because Mr Jensen introduced new evidence at a late stage in the form of what was described as “the McAleer affidavit”;

(b)It had been Mr Jensen’s responsibility to put any evidence relevant to the investigation before the decision-maker.   The McAleer affidavit was relevant evidence and Mr Jensen had been given opportunities in the   original   investigation   to   place   that   evidence   before   the investigator, but had not done so.

(c)      The McAleer affidavit was such that it was unrealistic to continue the hearing because it was “inevitable that the Court would need to remit the matter back to the defendant”.  If the McAleer affidavit had been filed in December 2015, the Attorney would not have had to prepare the evidence (affidavits x3) which were filed on 10 February.   If Mr Jensen had responded promptly to the Attorney’s offer in April to vacate the hearing, and agree consent orders, it would not have been necessary for the Attorney to continue to incur the cost of preparing for hearing.

[11]     In a reply memorandum of 23 June Mr Bates denied that Mr Jensen had any responsibility to provide evidence for the purposes of the investigation, pointing to the  “thoroughly  investigate”  wording  of  the  provider  manual.    Nor  could  the Attorney rely on the April discontinuance proposal.   Mr Jensen had sought the formal orders of this Court quashing the relevant decision for a purpose.

[12]     In a Minute of 13 July 2016 I wrote:

[1]       Judgment was, by consent, given in favour of the plaintiff on the basis  of  a  joint  memorandum  of  counsel  dated  17  May  2016.     Not surprisingly the plaintiff, who had therefore succeeded (whatever the motivation of the Attorney-General was in consenting to judgment), has applied for costs, the question of costs having been reserved in that joint memorandum.

[2]       In response to that unsurprising application, the Attorney-General has filed a notice of opposition and, moreover, a cross-application for costs in his favour.  That memorandum contains a factual narrative for which there is no evidential basis before the Court.  Correspondence is referred to which is not before the Court. The McAleer affidavit/evidence would not appear to be before the Court either.

[3]      The Attorney-General’s memoranda, particularly as regards the significance of the McAleer affidavit, would appear to require the Court to reach a view on the merits of the substantive matter.  As matters currently stand, the Court is not in a position to reach a considered view on the question of costs on the basis of the approach taken by the Attorney-General. I am unable to see how those arguments could be considered without there being a hearing.

[4]       If this was the position anticipated when the joint memorandum of

17 May 2016 was filed, then the suggestion that costs be decided on the papers was, in my view, unrealistic.

[5]       I invite counsel, and in particular counsel for the Attorney-General, to reconsider their position in light of my preliminary, but fairly robust, assessment that notwithstanding the submission to the contrary at paragraph

20  of the Attorney-General’s  replacement  memorandum the  plaintiff  has succeeded and costs should follow.  How is the Court to regard the entry of

judgment by consent in any other way?

[13]     I invited further memoranda, but encouraged the parties to produce a joint memorandum on the basis that costs would follow the event, Mr Jensen having succeeded. The parties were, unfortunately, unable to agree.

[14]     Counsel for the Attorney filed a further memorandum dated 22 July 2016.  In that memorandum counsel suggested that there had been an evidential basis for her previous submissions.  Reference was made to an open letter of 18 April 2016, said to be attached to Mr Jensen’s submissions and the earlier memorandum on behalf of the Attorney.   Counsel said she understood the McAleer affidavit was before the Court.  She submitted that it had not been her intention to invite the Court to reach a view on the merits of the substantive matter; that the joint memorandum seeking the vacation of the hearing made it clear that the Attorney-General did not concede the factual basis for the claim; and in light of that and the late filing of the McAleer affidavit, the consent memorandum reflected a “neutral outcome”.  On that basis the Attorney had declined my invitation to agree a memorandum as to costs on the basis that Mr Jensen had succeeded.

[15]     The memorandum went on to submit that, if I was not minded to grant the Attorney-General’s cross-application for costs, I should order that costs should lie where they fell.  At the very least, the Attorney-General should receive credit for his responsible action in responding to Mr McAleer’s fresh evidence in the way he did and for the costs he had incurred.   Ms Harris’ final submission was that the costs claimed by Mr Jensen appeared disproportionate in the circumstances, a submission she had also made in her earlier memorandum.

[16]     Mr Bates replied in a memorandum of 29 July.  With reference to the “open letter” of 18 April, Mr Bates noted that Mr Jensen had been unwilling to accept that proposal: again the point was made that he had required formal orders. There was no countervailing public interest warranting a rebuttal of the presumption that costs

should follow the event.   The availability or otherwise of Mr McAleer’s evidence was only one contested aspect of the case.  What mattered was that the Attorney- General had defended the proceeding and the plaintiff had been put to the cost of prosecuting his action until an agreement was reached that he should have judgment in his favour.

[17]     Mr Jensen attached to that memorandum correspondence between the parties subsequent to the Attorney’s letter of 18 April.   I return to that correspondence below.

[18]     It is clear, notwithstanding my earlier observations, that the parties wish me to decide this matter on the papers.  I will, therefore, do so.

[19]     I first note the following matters:

(a)       The Attorney-General’s “open letter” was not attached to Mr Bates’

first memorandum on costs.

(b)That letter was attached to the Attorney-General’s first memorandum on costs, dated 14 July.   It was not attached to the replacement memorandum dated 17 June.   It was that replacement memorandum which I, not surprisingly, had read.

(c)      Notwithstanding  counsel  for  the Attorney-General’s  understanding, the McAleer affidavit was not on the Court file.  I have since obtained a copy.

(d)Central to Mr Jensen’s application for judicial review is his contention that the complaint from the Public Defence Service was not “thoroughly investigated”.   He says it was not his responsibility to provide evidence for the investigation.  In seeking costs, the Attorney advances the opposite argument.   That is why I consider that the Attorney’s cross-application would require me to consider the substance  of  the  judicial  review  proceedings  in  which  orders  by

consent,  granting Mr Jensen the  relief  he sought,  have now been made.

[20]     I turn to the question of costs.

[21]     I remain of the view I expressed in my Minute of 13 July.  I see no reason why  costs  should  not  follow  the  event.     If,  as  was  submitted  in  the  latest memorandum from the Attorney-General, the outcome was considered to be neutral, why did the Attorney-General apply for costs?

[22]     In any event, in my view the outcome was not neutral.  The proposal made in the open letter of 18 April was not accepted by Mr Jensen.   As the subsequent correspondence made available by Mr Bates shows, Mr Jensen would only vacate the  hearing  on  the  basis  that  the  relief  he  sought,  namely the  quashing  of  the challenged decisions, was consented to.

[23]     Nor do I think there are circumstances which justify a reduction of costs. Counsel refers to the Attorney-General acting in the public interest: that is always the role of the Crown in litigation.  The Crown’s position as a “model litigator” reflects that.

[24]     Mr Jensen had emailed his written submissions to the Court on 19 April. Agreement was only reached the day before the hearing was due to take place.  In those  circumstances,  I do  not  see any reason  why the costs  of preparing those submissions, and preparing for hearing, should not be included in the award.

[25]     I make one final comment.   Having now read the McAleer affidavit, the incident in Court which prompted a complaint against Mr Jensen would appear to have been a very minor remark by one lawyer to another.  Very obviously, the wrong inferences were taken.   Whilst I accept I am not appraised of all the facts, it is difficult to see that a complaint was warranted. That the CO and the reviewer did not consider it appropriate to speak to any of the number of other lawyers, and the Judge, present in Court that day struck me as more than a little surprising.

[26]     I therefore order costs in favour of Mr Jensen on a 2B basis was claimed

provided, as is usual, that Mr Jensen’s actual costs exceed the amount claimed.

“Clifford J”

Solicitors:

Brown & Bates, Napier for Plaintiff

Crown Law, Wellington for Defendant