L v Police HC Palmerston North CRI-2008-454-58

[2009] NZHC 113

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2008-454-58

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 February 2009

Counsel:         Appellant in person

B D Vanderkolk for Respondent

Judgment:      12 February 2009 at 4pm

I direct the Registrar to endorse this judgment with a delivery time of 4pm on the

12th day of February 2009.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This is an appeal against a decision of the District Court in Palmerston North, presided over by two Justices of the Peace, on 17 November 2008, dismissing the appellant’s application for costs in proceedings relating to a speeding infringement notice which had been withdrawn.

[2]      Briefly the facts are that a speeding infringement notice was issued on 28

February  2008.    Subsequently  a  reminder  notice  was  sent,  and  the  appellant

L V NZ POLICE HC PMN CRI-2008-454-58  12 February 2009

responded to that by denying liability and requesting a hearing and indicating that no infringement notice had been issued.   On reviewing the matter, the constable concerned noted an error in the original infringement notice on the date of birth and re-issued an infringement notice (stating that to be the correct date of birth, though on the information before me the same date of birth appears to have been entered on both infringement notices.  I need not investigate that matter further as nothing turns on it).  There was subsequent correspondence, and an application by the appellant to the Court to correct an irregularity under s 78B of the Summary Proceedings Act

1957, which was declined.  A hearing date was allocated for 5 September 2008.  By letter dated 22 August 2008 police advised that the file had been reviewed and the Police would be withdrawing the charge owing to “identified clerical errors”.

[3]      The appellant then made an application for costs.   He set out a detailed chronology, and the substance of his claim.   As he had been self represented throughout, he made no claim for costs, but submitted that “disbursement expenses” should be awarded.  He claimed a total of $951.20, plus GST thereon of $118.90. The sum of $951.20 represents ten and a quarter hours at $80 plus travel expenses of

$48, postage, stationary, file copy and electronic storage at $80 and toll call at $3.20.

[4] The application was first heard on 3 October by two Justices of the Peace. The Court said in the course of that hearing “it does appear that the matter of Mr L that’s been before the Court has been considerable irregularities and the application for costs in this matter of $1070.10 has been submitted and the Court is in the agreement that these costs be awarded to Mr L on the basis of the information supplied”. In response to a question from the prosecutor the Court indicated that the Court would make the award under s 78B of the Summary Proceedings Act. In response to a further question the Court indicated that the Court had not addressed the Costs in Criminal Cases Act 1967. After a further discussion, the matter was adjourned for a “review’ on 17 November 2008.

[5]      At  the  hearing  on  17  November  2008,  conducted  before  two  different Justices, the Court said “the Court finds there is nothing in the submission that convinces it that the prosecution have acted vexatiously or in any way different from what would be expected as normal procedure in these matters.   The actions of

Mr L  , following the letter of 22 August, while reflecting irritation at what was a relatively minor police procedure, do not convince the Court that there is any merit in the argument that would support his application for costs of the view that the actions  taken  thereafter  were  probably unnecessary  and  ill  founded  and  if  they continue it could be regarded as being vexatious.  So we dismiss the claim for costs.”

[6]      Mr L  , in support the appeal, points to the finding at the first hearing to which I have referred.   He submits that the finding at the second hearing was in complete contradiction to the findings at the earlier hearing and that the decision dismissing the application for costs is so manifestly wrong that it needs no further argument beyond referring to the original Court file.

[7]      I am satisfied that the decision of the Justices to refuse costs was both correct in law, and a correct exercise of the discretion available to them.  The jurisdiction to award costs to the appellant arose not under s 78B of the Summary Proceedings Act

1957, as the Justices at the earlier hearing had considered, but, as the prosecutor had correctly identified, under the Costs in Criminal Cases Act 1967. Under that Act, the term ‘costs’ means, and an award may be made in respect of, “expenses properly incurred”. Most of the amount claimed by the appellant did not, as a matter of law, fall within the scope of that term. A claim at the rate of $80 per hour for his own time is not in law an expense incurred by him.

[8]      So far as the claim for GST is concerned, there is no evidence that the appellant is a registered person.  Even if he were, the notion that the services were supplied in the course of a taxable supply by him is far fetched.  That was not an “expense properly incurred”.

[9]      The only item which could, as a matter of law, be the subject of an award were such out of pocket expenses as were incurred by the appellant.   That is a potential maximum of $91.20.   It is not clear that all of the amounts claimed for travel  expenses  and  similar  items  have  in  fact  been  incurred  as  out  of  pocket expenses by the appellant.  Even if that were so, the decision of the Justices to refuse costs was a matter within their discretion, and their discretion has not been shown to have been improperly exercised.   Indeed, I consider that it was clearly correctly

exercised. As to the opinion of the Justices at the first hearing that there had been “considerable irregularity” that would not, of itself, have led to an entitlement to an award. They did not make an award, and their view that an award was appropriate was not formed having regard to the Costs in Criminal Cases Act. The Justices at the second hearing did not express a view on whether there had been “considerable irregularities” but considered that the prosecution had not acted “vexatiously or in any way different from what would be expected as normal procedure in these matters”. Those aspects are relevant considerations in the exercise of the discretion. Mr L submits that there is no statutory bar to costs being awarded in the absence of vexatious conduct. This is correct. However, while it is not a requirement of an award of costs that the prosecution has acted vexatiously, that is clearly a relevant consideration to the exercise of the discretion. The decision demonstrates that the Justices properly approached the matter of prosecutorial conduct on that basis.

[10]     For these reasons, the appeal is dismissed.

“A D MacKenzie J”

Solicitors:         Crown Solicitor, Palmerston North for respondent