Lin v Police

[2013] NZHC 1289

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-000026 [2013] NZHC 1289

YU REN LIN

v

POLICE

Hearing:	23 May 2013
Counsel:	R Maze for Appellant D J Orchard for Respondent
Judgment:	23 May 2013

JUDGMENT OF WHATA J

[1]      Mr Lin successfully brought an application in the District Court to have seven informations, which had been laid without meeting the condition precedent of the Attorney-General’s consent, declared nullities.

[2]      Mr Lin applied for costs.  An order was made for “costs to the defendant on the appearances on those informations calculated according to scale” and the Registrar then made an order of costs payable in the sum of $565, being $113 per appearance.

[3]      The Registrar’s decision was then referred to the Judge.  He addressed costs on the following basis:

[8]       “Costs” means expenses properly incurred by a party in carrying on a defence (s 2).   The expense incurred relates to counsel’s fee on the appearance.  There is but one fee for the appearance.  There is but one contribution to that expense.  The contribution is related to the appearance,

YU REN LIN v POLICE [2013] NZHC 1289 [23 May 2013]

not to the number of informations.  It follows that I do not accept Mr Maze’s

interpretation of the legislation.

[9]       In any event I would not exercise the s 5 discretion to award costs in excess of $2,000.00 for appearances related to informations that are withdrawn, especially where it seems that counsel was appearing, in any event, on other informations validly laid.   Moreover, the withdrawal of informations invalidly laid for want of the Attorney’s consent is not a matter of such difficulty, complexity or importance as to justify an award of costs in excess of scale.  If the scale is inadequate then that is a matter for the legislature, not the Court.

[4]      Mr Lin appeals against this judgment and order of the Registrar.  He said that the sum payable should have been made in respect of each information rather than on a cumulative total based on the number of appearances.

Frame

[5]      The relevant statutory regulation dealing with costs according to scale is as follows:1

Where for any reason the information is withdrawn or is dismissed without a hearing, or where the defendant pleads guilty – For each half day or part half day occupied in court, a maximum of $113.

Submissions

[6]      Mr Maze submits that:

(a)       Proceedings are commenced by the laying of “an information,” or a complaint or a charge sheet.  All of these are expressed in the singular.

(b)       Each information is for a single offence.

(c)      Even where informations are dealt with at the same hearing each information is a proceeding in its own right.   Where evidence is heard  on  multiple  informations  simultaneously  each  information must still be dealt with individually.

(d)       This is consistent with section 68(1) of the Summary Proceedings Act 1957 which deals with the decision of the court.  Which states, after hearing from each party and hearing the evidence the court “may convict the defendant or dismiss the information.”

1      Costs in Criminal Cases Regulations 1987, Regulation 3 and Schedule Part 1A(b).

[7]      Mr Maze therefore submits that given there were seven informations, there should have been seven separate awards of $113 multiplied by three appearances. This would result, he says, in a costs order of $2,372.

[8] Ms Orchard for the respondent submits that there was no error. She refers to the reasoning of the Judge and adopts it (as noted at [3] above). She also emphasised that the costs are set for “each half day or part half day occupied in court” rather than for each information.

Jurisdiction

[9]      Mr Maze conceded that there was in fact no right of appeal in this context. Without objection from the Crown, Mr Maze made instead an oral application to review the District Court decision on the same grounds set out in his appeal.

[10]     I granted leave to continue on that basis.

Resolution

[11]     As Mr Maze submits, the key part of the Schedule as to costs refers to “the information”.  That is the proceeding on which a costs order has been awarded.  This frames the jurisdiction of the Court to order costs and is the focal point for the costs order.  The reference to “each half day or part half day occupied in court” cannot be dispossessed of the words “the information” as I think Ms Orchard was suggesting. Rather, the duty of the Registrar was to assess the scale award by reference to each half day or part half day spent on “the information”.   I accept therefore that this means for each information on which there has been an appearance, the defendant is entitled to claim a maximum of $113 for each day or half day, if an award is made according to scale.

[12]     But that does not resolve the review proceedings in the applicant’s favour. The Schedule provides a maximum award.  This plainly contemplates that an award of less than $113 per information might be awarded depending on the circumstances of the case.  I note also that the Regulations contemplate that a party should have the opportunity to submit on the proper award, further emphasising its discretionary

nature.    That  discretionary  aspect  addresses  what  I  anticipate  is  Ms  Orchard’s concern that multiple awards of $113 might be made for a momentary appearance in Court.  A corollary of this is that a Registrar, having considered the circumstances, might award a sum less than $113 per information if in fact there was only a momentary appearance.  Conversely, the Registrar might be persuaded that dealing with the informations was individually or collectively onerous and an award to the maximum on one or more of the informations was warranted.

[13]      I am conscious that this decision should not unduly complicate the workload of Registrars and District Court Judges.  Provided that the Registrar or the Judge has properly had regard to the number of informations and the time spent on them in Court, a single award for all of them may still be appropriate.

[14]     Turning to the present facts, I respectfully disagree with the Judge that the costs are fixed without regard to the number of informations.  But I accept that the thrust of the Judge’s decision is also premised on the substantive merits (ie time spent) in terms of the award, as set out at paragraph [9] of his judgment.  I therefore see little will be gained by referring this matter back for reconsideration.    I also consider that the decision was reasonable2 and therefore I ought not to overturn it.

[15]    I note for completeness that Mr Maze raised concerns about procedural unfairness,  namely  that  he  was  not  afforded  an  opportunity  to  submit  to  the Registrar.   I consider that any such procedural unfairness was remedied when the Judge was also required to consider the costs award.

[Judge has discussion with counsel on issue of costs]

2      I add reasonable in a Wednesbury sense employed in Associated Provincial Picture Houses Ltd v

Wednesbury Corporation [1948] 1 KB 223 at 229.

Costs

[16]     Given that counsel agree that costs should lie where they fall, I make no order as to costs.

Solicitors:

R A Fraser & Associates, Christchurch

Raymond Donnelly & Co, Christchurch