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not exercise the s 5 discretion to award costs in excess of $2,000.00 for appearances related to informations that are withdrawn, especially where it seems that counsel was appearing, in any event, on other informations validly laid.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Where for any reason the information is withdrawn or is dismissed without a hearing, or where the defendant pleads guilty – For each half day or part half day occupied in court, a maximum of $113.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lin v Police

Details

AGLC: Lin v Police [2013] NZHC 1289
Case: [2013] NZHC 1289
Decision Date: 23 May 2013

CaseChat Overview and Summary

The case of Lin v Police concerns an appeal by Mr Lin against a decision of the Registrar of the District Court regarding costs. Mr Lin had previously succeeded in an application to have seven informations declared nullities, and applied for costs. The District Court ordered costs to be calculated according to scale, and the Registrar made an order of costs payable in the sum of $565, being $113 per appearance. Mr Lin appealed this decision, arguing 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. The Court of Appeal reviewed the District Court decision on the same grounds set out in Mr Lin's appeal.

The legal issues in this case revolve around the interpretation of the relevant statutory regulation dealing with costs according to scale, specifically whether the costs should be calculated per information or per appearance. Mr Maze, counsel for Mr Lin, submitted that each information is a proceeding in its own right and that there should have been seven separate awards of $113 multiplied by three appearances, resulting in a costs order of $2,372. Ms Orchard, counsel for the respondent, submitted that there was no error in the District Court's decision and that the costs are set for "each half day or part half day occupied in court" rather than for each information.

The Court of Appeal held that the key part of the Schedule as to costs refers to "the information" and that 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". The Court accepted that 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. However, the Court also noted that the Schedule provides a maximum award and that an award of less than $113 per information might be awarded depending on the circumstances of the case. The Court found that the decision of the District Court was reasonable and that there was little to be gained by referring the matter back for reconsideration. The Court also considered that any procedural unfairness was remedied when the Judge was also required to consider the costs award.

In conclusion, the Court of Appeal dismissed Mr Lin's appeal and upheld the decision of the District Court regarding the costs order. The Court found that the District Court had correctly applied the relevant statutory regulation in determining the costs and that the decision was reasonable. The Court of Appeal made no order as to costs, given that counsel agreed that costs should lie where they fall.

Orders