Lowrie v Hutt City Te Awa Kairangi

[2019] NZHC 1030

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-212

[2019] NZHC 1030

IN THE MATTER OF

a judicial review; Bill of Rights Damages

BETWEEN

PETER EDWIN WILLIAM LOWRIE

Plaintiff

AND

HUTT CITY TE AWA KAIRANGI

Defendant

On papers
Judgment:	10 May 2019

JUDGMENT OF DOBSON J

[Costs]

Introduction

[1]    Following a two day hearing of this judicial review in February 2019, my judgment was delivered on 6 March 2019. Having rejected a number of the important aspects of Mr Lowrie’s factual criticisms against the respondent, Hutt City Te Awa Kairangi (the Council), I found that none of his grounds for judicial review were made out.1

[2]    Although advised that Mr Lowrie was legally aided, I allowed the Council  15 working days from delivery of the judgment to file a memorandum in relation to costs.2 The Council, as the successful party, seeks costs against Mr Lowrie or, in the alternative, an order that costs would have been awarded on a 2B basis but for the fact that Mr Lowrie was legally aided in these proceedings.

1      Lowrie v Hutt City Te Awa Kairangi [2019] NZHC 359.

2 At [80].

LOWRIE v HUTT CITY TE AWA KAIRANGI [2019] NZHC 1030 [10 May 2019]

Relevant law

[3]    Under s 45 of the Legal Services Act 2011 (the Act), an order for costs may not be made against a legally aided person in civil proceedings unless the Court is satisfied that there are exceptional circumstances.3 Section 45(3) of the Act sets out the following non-exhaustive list of exceptional circumstances:

(a)any conduct that causes the other party to incur unnecessary cost:

(b)any failure to comply with the procedural rules and orders of the court:

(c)any misleading or deceitful conduct:

(d)any unreasonable pursuit of 1 or more issues on which the aided person fails:

(e)any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:

(f)any other conduct that abuses the processes of the court.

[4]    The test for exceptional circumstances is a broad one. It takes into account the means of all the parties and their conduct and, to qualify, the circumstances must be “quite out of the ordinary”.4 In Reid v Castleton-Reid, it was noted:5

[52]      Subsection 3(d) makes it clear that the issues on which the plaintiff failed must have been such that the legally aided person behaved in an unreasonable fashion. Unreasonable conduct could arise in a number of ways. It might be considered that the plaintiff had acted unreasonably by insisting that a claim be brought in the first place. The court making a decision under s 45(2) would have to try and place itself in the position of the party at the time when the decision was made to initiate or continue a proceeding. Retrospective reasoning based only on the fact that the case turned out to be an unsuccessful one would not be enough on its own to attract the operation of s 45. It may be influenced too heavily by the advantage of hindsight. In making a decision under s 45(2), proper weight needs to be given to the consideration that the outcome of litigation is inherently a difficult matter to predict.

[53]      The court is required to balance giving effect to the objective of the Legal Services Act to promote access to justice against the harm that can be done if a litigant who has been armed by state funding misuses his or her position. Such a person could cause considerable damage to his or her opponent in litigation particularly by bringing complex and expensive litigation which calls for a proportionate expenditure by the opposite party in

3      Legal Services Act 2011, s 45(2).

4      Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA) at [31], applying Awa v Independent News Auckland Ltd (No 2) [1996] 2 NZLR 184 (HC) at 186.

5      Reid v Castleton-Reid [2016] NZHC 1609 (citation omitted).

obtaining assistance in the formulation and advancing of his or her case when it comes to court.

[5]    Once the exceptional circumstances threshold has been met, the Court may make a legally aided person liable only for an amount that it is reasonable to pay, having regard to all of the circumstances.6 Any order for costs must specify the amount that the person would have been ordered to pay if s 45 had not affected his or her liability.7

[6]    If an order is made specifying that the legally aided person would have incurred a liability for costs but for s 45(4), the party thereby prejudiced may apply to the Legal Services Commissioner for payment of some or all of the difference between the costs actually awarded to that party and the costs that would have been awarded but for     s 45.8

Submissions

[7]    For the Council, Mr Dewar submitted that this case should not have been brought and, at the least, ought not to have been maintained beyond the point at which briefs of evidence were provided. The fact that it was pursued to a substantive hearing with a somewhat unusual extent of cross-examination for a judicial review is such that a costs award ought to follow. Given the circumstances, in the ordinary event indemnity, or at least increased, costs would arguably be justified.

[8]    Mr Dewar submitted that the nature of the claim in general and the conduct of Mr Lowrie fall within “exceptional circumstances”  as  defined  in  the Act.  First, Mr Lowrie had stated that he was not interested in settlement and wanted his day in court, proclaiming that he would pursue the case to cause maximum cost to the Council. The remedy of judicial review was, in fact, used for the ulterior purpose of causing maximum expense. Secondly, his principal grievance appeared to be that he was the victim of a rumour that he was a paedophile. Although he identified the individual (who has no connection with the Council) whom he claimed had spread and caused that rumour, he did not pursue any remedy against that person. Thirdly, this

6      Legal Services Act 2011, s 45(1).

7      Section 45(4).

8      Section 46(1) and (2).

was the second time Mr Lowrie had brought such an action, the Council having previously settled his litigation and sought to accommodate him to the maximum extent it reasonably could. Finally, despite the Council not taking an unreasonable position and, in fact, facilitating conduct of the hearing at the earliest possible time and at the least possible expense, Mr Lowrie sought costs ostensibly on behalf of the Legal Aid Commissioner and, at different times, threatened to seek increased costs.

[9]    For Mr Lowrie, Mr Fraser submitted that there was nothing exceptional about this matter. This was a Bill of Rights claim and judicial review brought by a disabled beneficiary with communication difficulties and special needs who had been humiliated and banned from his local community centre. Mr Lowrie had tried repeatedly to discuss his issues with the Council. Mr Fraser submitted that it is not correct to suggest that Mr Lowrie sought to cause maximum cost to the Council as he only gave evidence himself and responsibly did not call school children as witnesses. The Council did not need to call so many witnesses. The decision to seek the remedy of judicial review was not a strategic one as has been suggested.

Discussion

[10]   In order for there to be exceptional circumstances, I need to be satisfied that there is conduct that is quite out of the ordinary, and meets one of the subsections of s45(3).

[11]   Having reviewed Mr Lowrie’s conduct, I am satisfied that there are exceptional circumstances in this case. While Mr Fraser argued that the matter turned on factual findings from contradictory evidence, it is significant that the evidence of numerous Council employees consistently and materially diverged from Mr Lowrie’s own account. Mr Lowrie did not call any other witnesses to challenge the consistent recollection of witnesses for the Council. Rather than supporting his argument that he did not seek to cause maximum costs and did not call unnecessary witnesses, the lack of corroboration should have caused consideration of withdrawing the application for judicial review once briefs of evidence were exchanged.

[12]   I accept the Council’s submission that Mr Lowrie’s application for judicial review appears to have been pursued to cause maximum cost to the Council.

Mr Lowrie acknowledged during cross-examination that he brought these proceedings in the High Court in order to make the process “as expensive for the Council as it could be”. The grant of legal aid should not be used to shield a party against costs in those circumstances. I will therefore make an order for costs against Mr Lowrie as a legally aided person.

[13]   Mr Dewar has calculated costs on a 2B basis at $29,547. It is not an appropriate case in which to consider any uplift. In determining what is a reasonable amount for Mr Lowrie to pay in the circumstances, I must consider his means. As a beneficiary and recipient of legal aid, it is apparent that he is a person of limited means, although Mr Dewar did note that Mr Lowrie indicated during the hearing that he had recently purchased a car. Accordingly, the personal costs order will necessarily be nominal.

Outcome

[14]   Had it not been for the operation of s 45 of the Act, Mr Lowrie would have been liable for the amount claimed by way of costs of $29,547.

[15]   However, in light of Mr Lowrie’s limited means, I order that he pay $500 by way of costs.

Dobson J

Solicitors/Counsel:

S J Fraser, Wellington for plaintiff

Thomas Dewar Sziranyi Letts, Lower Hutt for defendant