Jindal v District Court at Auckland
[2025] NZHC 3096
•17 October 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-378
[2025] NZHC 3096
UNDER the Judicial Review Procedure Act 2016, Declaratory Judgments Act 1908,
New Zealand Bill of Rights Act 1990BETWEEN
GAUTAM JINDAL
Applicant
AND
DISTRICT COURT AT AUCKLAND
First Respondent
RICE CRAIG
Second Respondent
Hearing: On the papers Counsel:
Applicant in person
M W McMenamin and M G Hyslop for First Respondent S C Dench for Second Respondent
B M McKenna as counsel assisting
Judgment:
17 October 2025
JUDGMENT OF O’GORMAN J
[As to costs]
This judgment was delivered by me on 17 October 2025 at 10 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
Crown Law, Wellington Rice Craig, Auckland
B M McKenna, Barrister, Auckland
JINDAL v DISTRICT COURT AT AUCKLAND [2025] NZHC 3096 [17 October 2025]
Introduction
[1] In a judgment delivered 11 August 2025, I declined Mr Jindal’s application for judicial review.1
[2] Counsel for the second respondent seeks costs on a 2B basis, plus disbursements. It has calculated costs on a 2B basis in the sum of $22,107.50 with disbursements of $972.12, totalling $23,079.62. Those claimed costs include steps for an unsuccessful application by Mr Jindal for interim relief.
[3] Ms McKenna was appointed as counsel assisting. Where counsel assists this Court, costs will often (but not invariably) be met from public funds.2 She submits that it is appropriate in this case to make a costs order under s 178(2)(b) of the Senior Courts Act 2016 for part reimbursement of public funds expended on counsel assisting. As set out in a schedule, she has calculated this on a 2B basis at $7,528.50 for steps related to appearing at the interlocutory hearing and the subsequent substantive hearing, along with disbursements of $204.25, making a total of
$7,732.75.
[4]Mr Jindal opposes both cost claims:
(a)He contends that, notwithstanding the appointment of a barrister, Rice Craig has one of its own partners as solicitor on the record so the proscribed daily rate of $500 under r 14.2(2A) of the High Court Rules 2016 applies to a solicitor acting in person. As a result, he says costs of only $3,725 should be awarded, with disbursements of $829.12. This includes a deduction for what Mr Jindal described as “wasted costs” for the filing fee for one statement of defence, and Mr Jindal filing a reply to that document.
1 Jindal v District Court at Auckland [2025] NZHC 2259.
2 Such costs were neither sought nor awarded in Nuku v District Court at Auckland [2016] NZHC 2237 at [33] or Jindal v District Court at Auckland [2024] NZHC 1695 at [46]. They were awarded in Prescott v North Shore District Court [2024] NZHC 2362 at [62]–[63] (claims lacked merit and public importance); and Ross v Family Court at Auckland [2022] NZHC 185 at [12]−[13] (historic issues, intransigence and lacking public interest), upheld in Ross v Family Court at Auckland [2023] NZCA 27 at [34] (appropriate to order costs under s 178 of the Senior Courts Act 2016 so that costs follow the event).
(b)He contends that only one set of costs should be awarded, because of r 14.15 and the general approach when the decision-maker abides and another party instead serves as the contradictor.3
[5]Accordingly, the issues for determination are:
(a)Does r 14.2(2A) apply when a partner of the respondent law firm is solicitor on the record, but an independent barrister is instructed as counsel?
(b)Are adjustments to scale appropriate due to the second respondent filing an amended statement of defence or because two days for commencement of the defence is an unreasonable length of time in this case?
(c)Is it inappropriate to award costs for counsel assisting, because only one set of costs may be awarded and there is no good reason to depart from that position? In addition, should the claim for counsel assisting to attend the interlocutory hearing be disallowed as unnecessary?
Analysis
Self-represented parties
[6] The cost rules for self-represented parties changed on 1 September 2024.4 The changes were prompted by the Supreme Court’s judgment in McGuire v Secretary for Justice,5 in which the Court criticised the position that most litigants-in-person were not entitled to an award of costs (the primary rule), while practising lawyers and parties represented by in-house lawyers could obtain costs (the exceptions). The majority suggested that reform should be considered.
3 David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at [2.44].
4 Introduced in the High Court Amendment Rules 2024.
5 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.
[7] The Rules Committee consulted on the issues. The outcome was that the primary rule was abolished and self-represented litigants can now be awarded costs at a new prescribed daily recovery rate. The exceptions were also narrowed substantially. In changing the exceptions, the Rules Committee agreed that “the definition of self-represented litigants should not include those appearing in the context of a solicitor-client relationship, including Crown Law, but would include lawyers representing their own personal interests”.6 Reflecting that decision, r 14.2(2A) defines “party acting in person” as:
(a)a party who is without a solicitor on the record and who represents their own personal interests; and
(b)includes a party who is a lawyer and who represents their own personal interests.
[8] This was consistent with a detachment test used in Bell Lawyers Pty Ltd v Pentelow,7 and the following policy:8
… one legitimate objective of the costs regime is incentivising parties who are able to obtain representation to do so, and that it is beneficial to the Courts to have the assistance of independent counsel, who are trained lawyers that are officers of the Court and subject to ethical obligations.
[9]The same issue was referred to in the advice to the Rules Committee:9
A significant part of the benefit that the Courts derive from the appearance of counsel relates to their professionally detached exercise of judgment. Lawyers lacking such detachment, all things being equal, are likely to be less able to exercise the same measure of skill and judgment appearing for themselves than they would if appearing for a client.
6 Rules Committee | Te Komiti mō ngā Tikanga Kooti “Costs for litigants-in-person” (last updated 25 February 2025) Courts of New Zealand | Ngā Kōti o Aotearoa < the-judiciary/rules-committee/new/lay-litigants-costs-consultation>.
7 Sebastian Hartley A New Approach to Costs for Self-Represented Litigants (15 March 2021) at [7.6], referring to Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, (2019) 372 ALR 555 at [51].
8 Rules Committee | Te Komiti mō ngā Tikanga Kooti Costs for Self-Represented Litigants — Consultation Paper (16 September 2021) at [15].
9 Hartley, above n 7, at [7.19].
[10] Accordingly, the rules limiting cost recovery for a “party acting in person” do not apply to a situation where the party is represented by an independent barrister. Barristers must at all times exercise independent professional judgement on a client’s behalf,10 without any conflicts,11 and consistent with their overriding duty to the court.12 Rule 14.2(f) of the High Court Rules also applies, ensuring that an award of costs does not exceed the costs incurred by the party claiming costs (not being a party acting in person). This would address any mischief that might otherwise arise from a barrister being appointed in name only, but the solicitor (or firm) doing all of the work representing their own interests.
[11] There can be no such allegation on the present facts. Mr Dench has acted as an independent barrister, with full conduct of the matter. He presented the entirety of the submissions advanced for the second respondent in both hearings. Accordingly, I find that costs are properly claimable on a 2B basis at the daily rate set out in sch 2, pt 1.
Defence steps by second respondent
[12] The second respondent’s first statement of defence is dated 12 March 2025. An amended statement of defence is dated 14 May 2025. The substantive paragraphs take only a single page in both cases. Only one claim is made for the step of commencement of defence (two days), but two filing fees are claimed as disbursements.
[13] I consider that one day (Band A) is sufficient as a reasonable amount of time for the step of the commencement of defence in this case, but that both filing fees are properly claimable. The second version gave notice about small but important changes of position, while the core defence arguments remained. No deduction is appropriate for steps taken by Mr Jindal replying to the defence documents.
10 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 5.3.
11 Rule 5.4. Constraints on who may be solicitor on the record for an independent barrister, such as r 13.5.3, are a different issue.
12 Rules 13 and 13.1.
Counsel assisting
[14]Section 178(2) of the Senior Courts Act provides as follows:
(2)If the Attorney-General or the Solicitor-General or any other person appears as an intervener 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.
[15]Rule 14.15 of the High Court Rules provides as follows:
14.15Defendants defending separately
The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—
(a)several defendants defended a proceeding separately; and
(b)it appears to the court that all or some of them could have joined in their defence.
[16] Rule 14.15 has no application to the present circumstances. The first and second respondents could not have been represented by the same lawyers, because of the different nature of the interests involved. In this case, the second responded abided on the breach of natural justice arguments. These amounted to criticisms of the District Court and not the second respondent. To address that situation, Jagose J requested the Solicitor-General to appoint counsel to assist the Court.
[17] Around the same time, guidance was sought on whether counsel assisting should attend the interim relief hearing. Jagose J indicated that their attendance would be helpful, if available. That hearing and the resulting judgment addressed the natural justice arguments,13 so I do not accept that their attendance was “unnecessary”.
[18] This proceeding was dismissed as an abuse of process, with a finding that there had been no breach of natural justice. In those circumstances, costs should follow the event rather than be paid entirely from the public fund. I accept it is appropriate for an award of costs to be made for counsel assisting in the amount detailed in the schedule (calculated on a 2B basis), resulting in costs of $7,528.50 plus disbursements of $204.25.
Result
[19]I award:
(a)to the second respondent, costs of $19,717.50 and disbursements of
$972.12; and
(b)under s 178 of the Senior Courts Act, costs of $7,528.50 plus disbursements of $204.25 for counsel assisting.
[20] Interest is awarded on the above amounts under s 10 of the Interest on Money Claims Act 2016 from the date of this judgment until payment in full.
O’Gorman J
13 Jindal v District Court [2025] NZHC 864.
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