Kim v Minister of Justice

[2016] NZHC 3086

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-1009

CIV 2015-485-1036 [2016] NZHC 3086

UNDER

the Extradition Act 1999, the New Zealand

Bill of Rights Act 1990, the Judicature Amendment Act 1972, the common law, and the International Covenant on Civil and Political Rights, and the United Nations Convention Against Torture

IN THE MATTER OF

an application for discharge from detention pursuant to s 36 of the Extradition Act 1999

AND

a request for extradition to China, and a decision to extradite the applicant, breaches of the New Zealand Bill of Rights Act 1990, and International Law remedies of Public Law compensation, declarations and orders in the nature of Prohibition, Certiorari and Mandamus

BETWEEN

KYUNG YUP KIM Applicant

AND

THE MINISTER OF JUSTICE First Respondent

THE ATTORNEY-GENERAL Second Respondent

On the papers
Counsel:	A J Ellis and G K Edgelet for the applicant A M Powell and A F Todd for the respondents
Judgment:	15 December 2016

JUDGMENT OF MALLON J (COSTS)

KIM v THE MINISTER OF JUSTICE [2016] NZHC 3086 [15 December 2016]

[1]      I refer to my judgments delivered on 1 July 2016 dismissing the discharge application1  and granting the judicial review.2    I subsequently received submissions on costs.

[2]      The respondents submit the appropriate costs band and category is 3B.  The applicant submits the appropriate band and category is 3C.   I consider 3C is appropriate.  These proceedings were both complex and significant requiring special skill and experience (category 3)3 and they required a comparatively large amount of time compared with an average proceeding (band C).4

[3]      The respondents submit the costs awarded to the applicant should be reduced by 50 per cent.   This is on the basis that the applicant did not succeed on the discharge application and, it is said, had only partial success on the judicial review application.   The applicant submits a reduction of one-quarter, or one-third at the most, would be appropriate.   This is because the applicant received the relief he sought in the judicial review, namely the quashing of the Minister’s surrender determination.  The fact that not all of his arguments were successful is common in all sorts of cases and does not detract from his overall success.

[4]      Had it been necessary for me to decide between these submissions, I would have reduced scale costs by something in the range of one-quarter to one-third.   I accept the applicant’s submission that he achieved overall success in the judicial review.  Although the applicant did not succeed on all his arguments, that does not ordinarily warrant a reduction in costs and there is no reason to do so here.   A reduction in the region proposed by the applicant is appropriate because he did not succeed on the discharge application.  A greater reduction is not appropriate, in my view, bearing in mind the application was brought because of the very lengthy period the applicant was in custody and the requirement on the Minister to show cause when surrender has not occurred within the two month time period set out in s 36 of

the Extradition Act 1999.

1      Kim v Minister of Justice [2016] NZHC 1491.

2      Kim v Minister of Justice [2016] NZHC 1490.

3      High Court rules, r 14.3.

4      Rule 14.5.

[5]      It is not necessary to calculate precisely the costs which would be ordered on this basis.  This is because it is accepted that scale costs will well exceed legal aid. The applicant calculated a conservative estimate of scale costs on a 3B basis of

$42,900 excluding disbursements.   However legal aid received by the applicant totalled $20,522.70 including disbursements.   The parties are agreed that costs ordered  should  not  exceed  the  legal  aid  sum.5     Accordingly  the  costs  order  is

$20,522.70.

[6]      In addition the applicant seeks payment of the fee charged by Clive Ansley, an expert who prepared an affidavit in support of the applicant’s judicial review proceeding.  His fee was $20,000.  It was funded by a benefactor.  Legal aid was not sought because the speed with which the application was brought on for hearing did not allow the applicant to seek and be granted legal aid.  The respondents resist an order to cover this disbursement on a number of grounds.

[7]      First, the respondents submit the affidavit was not reasonably necessary for the conduct of the proceeding.   That is because Mr Ansley’s evidence would not have materially contributed to the Minister’s view and in that sense “shines a torch into a room where the lights were already on”.  I consider Mr Ansley’s evidence was of assistance in the judicial review.  His evidence made the lights brighter in some respects and therefore underscored the importance of effective assurances.

[8]      Secondly, the respondents submit the amount of the fee is not reasonable. The respondents note that much of Mr Ansley’s evidence was generic and did not appear to be the product of specific research and analysis for this case.  Further, no breakdown   of   the   fee   has   been   provided.      However,   as   the   respondents acknowledged  in  the  judicial  review,  Mr Ansley  is  qualified  by  reason  of  his education, experience and scholarship to provide opinions on the Chinese criminal justice system.  His expertise in this area is significant.  Expertise can be expensive. His fee was $20,000 and that is the amount that has been paid by the benefactor.  I am not able to say the fee was unreasonable.  Moreover, it does not lead to an overall award which is unreasonable given, but for the size of the legal grant, the costs order

would have been greater.

5      Taunoa v Attorney-General (2004) 8 HRNZ 53 (HC).

[9]      Thirdly, the respondents submit the fee has not been “incurred” because it has been paid by a benefactor.   I do not accept this submission.  The costs have been incurred for the purposes of the proceeding.  The source of payment the applicant utilised to meet those costs does not alter that.  I consider this no different from if, for example, the applicant’s family had paid Mr Ansley’s fee.

[10]     Accordingly,  the  respondents  are  to  pay  costs  and  disbursements  of

$20,522.70, together with the further disbursement of $20,000.

[11]     For completeness I record that, following my judgment granting the judicial review, the parties filed a joint memorandum agreeing that the appropriate orders were orders quashing the surrender decision, quashing the surrender order and directing the Minister of Justice to reconsider and determine the surrender decision having regard to the judgment of the High Court.   Accordingly, by consent those orders were made.   Subsequently the Minister has reconsidered her decision and again determined that Mr Kim is to be surrendered.  That determination is now the subject of a further application for judicial review.

Mallon J