Joint Action Funding Ltd v Eichelbaum

Case [2017] NZCA 249


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ORDER PROHIBITING PUBLICATION OF THE NAMES OF THE APPELLANT AND THE RESPONDENT FOR 10 WORKING DAYS FROM DATE OF JUDGMENT OR FURTHER ORDER OF THIS COURT.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA155/2016 [2017] NZCA 249

BETWEEN

JOINT ACTION FUNDING LIMITED

Appellant

AND

JOHN REVANS EICHELBAUM Respondent

Hearing: 14 March 2017

Court:

Brown, S France and J Williams JJ

Counsel:

A R Gilchrist and G Abdale-Weir for Appellant
Respondent in person

Judgment:

14 June 2017 at 11.30 am

JUDGMENT OF THE COURT

A      The appeal is allowed in part.

B      The award of costs in favour of the respondent in the High Court is set aside.

C      The respondent must pay the appellant costs for a standard appeal on a band A

basis and usual disbursements.

DOrder prohibiting publication of the names of the appellant and the respondent for 10 working days from date of judgment or further order of this Court.

REASONS OF THE COURT

(Given by Brown J)

JOINT ACTION FUNDING LIMITED v EICHELBAUM [2017] NZCA 249 [14 June 2017]

Table of Contents

Para No.

Introduction  [1] The origin of the lawyer-litigant exception  [4] The Australian position  [10] The English position  [16] The position in New Zealand  [20] The former costs rules  [21] The current costs rules  [22] Text      [24] The purpose of the costs rules  [46] The objective of the costs rules: the exception contrasted  [49] Conclusion      [57] Does the exception apply to a self-represented barrister sole?  [58] Quantum       [66] Result             [75]

Introduction

[1]      Mr Eichelbaum is a practising barrister.  He was successful in a claim, which he  conducted  in  person,  for  an  order  under  s  91  of  the  Companies  Act  1993 rectifying the share register of the appellant, Joint Action Funding Limited (JAFL), to record a transfer to him of a 10 per cent shareholding in JAFL.1     Thomas J awarded Mr Eichelbaum costs in the sum of $16,688 and disbursements of $2,630 and awarded JAFL indemnity costs in the sum of $1,375.50.2   JAFL appeals against that costs judgment.

[2]      Although a litigant in person in New Zealand is not entitled to recover costs except in exceptional cases,3  there is a long recognised exception that a practising barrister and solicitor who brings or defends a proceeding in person4 is entitled to the same costs as when acting on behalf of a client (the lawyer-litigant exception).

[3]      JAFL invites this Court to reconsider that exception.  Its appeal raises three issues, namely:

1      Eichelbaum v Joint Action Funding Limited [2015] NZHC 2163.

2      E v J [2016] NZHC 419.

3      Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010)

24 NZTC 24,500 at [162]; and Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 441–442.

4      Or by a partner or employee of the firm.

(a)      whether  the  lawyer-litigant   exception   should   be  maintained   in New Zealand in view of the doubt expressed by the High Court of Australia in

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Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249
Case
[2017] NZCA 249
Decision Date

CaseChat Overview and Summary

Joint Action Funding Limited (JAFL) appeals against an order made by Thomas J that it pay the costs of John Eichelbaum. JAFL submits that the lawyer-litigant exception to the general rule denying costs to litigants in person should not apply in New Zealand. Eichelbaum, a practising barrister, submits that the exception should continue to apply. The appeal raises three issues: (a) whether the lawyer-litigant exception should be maintained in New Zealand; (b) whether the exception applies to a self-represented barrister sole; and (c) whether the costs awarded to Eichelbaum were excessive and whether the indemnity costs awarded to JAFL should be increased. The Court of Appeal held that the lawyer-litigant exception should no longer apply in New Zealand as it is inconsistent with the text of the current costs rules and undermines the objectives of the rules. The Court held that the exception applies to a self-represented barrister sole. The Court dismissed the appeal against the quantum of the indemnity costs order. The appeal is allowed in part. The award of costs in favour of Eichelbaum in the High Court is set aside. Eichelbaum must pay JAFL costs for a standard appeal on a band A basis and usual disbursements. An order prohibiting publication of the names of the appellant and respondent for 10 working days from the date of this judgment or further order of this Court is made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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