L v Police HC Palmerston North CIV-2009-454-473

[2010] NZHC 699

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2009-454-473

BETWEEN  L

Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         On the papers

Appearances: Mr L   in person

Mr Powell for the respondent

Judgment:      12 May 2010

JUDGMENT OF MALLON J (Costs)

[1]      In the substantive proceeding, Mr L   succeeded in challenging a revised interpretation of the meaning of “military pattern free-standing pistol grip”, as used in the Arms Act 1983, which the police were intending to apply.[1]     That success meant that he, and other owners or importers of firearms with pistol grips that met the police’s revised interpretation, did not need to comply with particular restrictions under the Arms Act that apply in relation to military style semi-automatic firearms,

and would not face prosecution for non-compliance with those restrictions.

[1] L   v New Zealand Police HC Palmerston North CIV-2009-454-473 1 March 2010.

[2]      Mr L   represented himself in the proceeding.  He is not a lawyer.  He seeks costs from the defendant for the 104 hours he calculates he spent researching, collating, gathering evidence from various sources and generally attending to the substantive proceeding.   He claims costs at the rate of $90.00 per hour, that rate

L V NEW ZEALAND POLICE HC PMN CIV-2009-454-473  12 May 2010

being the hourly rate Mr L   charges his clients in his usual occupation as a computer  engineer.    The  defendant  has  paid  Mr L  ’s  reasonable  costs  and disbursements but says that this is not an exceptional case justifying a departure from the usual practice that costs can only be claimed where they have been incurred with a solicitor and/or barrister.

[3]      All  matters  of  costs  are  at  the  discretion  of  the  Court.[2]      This  general discretion is qualified by the specific rules relating to costs.   So the discretion is generally to be exercised in accordance with the specific rules.  However, because the rules do not cover every eventuality, occasionally Judges may have to resort to the general discretion.[3]   The specific rules contemplate that a successful party should receive a reasonable contribution towards legal costs incurred (and they set out rules as to how that contribution is to be calculated).[4]   They also provide for the payment of disbursements which are defined.[5]   There is no rule permitting costs to be claimed by a lay litigant for his or her work in preparing for and presenting their case.  This is consistent with the long-standing practice not to award costs to a litigant in person.[6]

[2] Rule 14.1 of the High Court Rules.

[3] Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 at [18], [19] and [22].

[4] Rules 14.2 to 14.11 of the High Court Rules. 

[5] Rule 14.12 of the High Court Rules.

[6] Re Collier (a bankrupt) [1996] 2 NZLR 438 (CA).

[4]      In a case decided under the costs rules in place prior to the regime now provided by the High Court Rules, it was said that, because it is a rule of practice rather than a rule of law not to award costs to a litigant in person, there may be exceptions.  Matters of general public importance where there is no self-interest were

suggested as possible exceptions.[7]   Under the current costs regime, such exceptions,

although not referred to in the specific rules, might be seen as situations not fairly recognised by them and so potentially within the Court’s general discretion.   The specific  rules already contemplate that an  award of  costs “should reflect the ... significance of the proceeding”,[8] that increased costs may be ordered if “the proceeding is of general importance to persons other than just the parties and it was

reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected”,[9]  and that costs may be refused or reduced against an unsuccessful party on this basis.[10]     Nevertheless, the case would have to be exceptional because, in not providing for lay litigants to claim costs, it must be assumed that ordinarily they cannot be claimed.

[7] In Re Collier the Court of Appeal referred to, as examples, a case concerning a challenge to the legality of a proposed law change concerning superannuation and a challenge to the lawfulness of a general election and legislation passed subsequent to the election.

[8] Rule 14.2(b) of the High Court Rules.

[9] Rule 14.6(3)(c) of the High Court Rules.

[10] Rule 14.7(e) of the High Court Rules.

[5]      This case was of benefit to Mr L   directly.   He was the owner of a firearm that fell within the revised interpretation by the police of “military pattern free-standing pistol grips”.  He was therefore personally interested in the outcome. The case was also of benefit to others importing or in possession of firearms within the revised interpretation.  The importance of the matter for some members of the public beyond the parties themselves does not, however, make this case exceptional. This was not a case involving issues of constitutional importance.  The police’s new interpretation was erroneous, but I do not consider Mr L   to have made out his claim that there was malfeasance by the police.  I do not view this case as being of sufficient general public importance so as to, exceptionally, award Mr L   his costs as though he had been represented by counsel.

[6]      That said I acknowledge the assistance that Mr L   provided to the court. Mr L   demonstrated considerable knowledge of firearms and he provided to the Court very useful research about firearms and the meaning of “military pattern” in particular.  I consider that he can be treated as an expert in this respect.  Expenses paid to experts can be recovered as a disbursement.  The nature of a disbursement is that it is an amount that has been paid out, and the definition refers to “an expense

paid or incurred for the purposes of the proceeding”.[11]   Although Mr L   has not

“paid” or incurred an “expense”, and so the time he incurred and the cost to him in so doing do not quite fit within the definition, it might be an appropriate exercise of the general discretion to award costs on this basis.

[11] Rule 14.12 of the High Court Rules.

[7]      As  I  am  raising  something  that  is  different  from  how  the  parties  have submitted, I propose that the parties consider whether costs might be dealt with in

this way.  I would not envisage that the amount recoverable would be the full 104 hours Mr L   has incurred because a good deal of that is likely to relate to legal research and preparation.  If the parties cannot agree to resolve costs on this basis, further submissions may be made (as to this approach or on the amount on the basis

of this approach) within 14 days.

Solicitors:

A M Powell, Crown Law Office, PO Box 2858, Wellington ([email protected])

Copy to:

Mr L 

Mallon J