Marino v Chief Executive of the Department of Corrections

[2017] NZCA 2

IN THE COURT OF APPEAL OF NEW ZEALAND

CA129/2016
[2017] NZCA 2

BETWEEN	MICHAEL MARINO Appellant
AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Court:

Kós P, Miller and Cooper JJ

Counsel:

D A Ewen and G K Edgeler for Appellant
D J Perkins for Respondent

Judgment:

(On the papers)

3 February 2017 at 11.00 am

JUDGMENT OF THE COURT
(On Costs)

The appellant will have costs as for a standard appeal on a band A basis, with provision for second counsel and usual disbursements.

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REASONS OF THE COURT

(Given by Miller J)

1. The Court has considered counsels’ submissions on costs following the appellant’s successful appeal to the Supreme Court.

2. It is not in dispute that costs are payable on the civil scale.  The question is whether the appellant ought to have indemnity or increased costs.  As to that, we are in agreement with the respondent.  We make three points:

   (a)There was nothing especially complex about the appeal.  It was a question of statutory construction, necessitating a review of legislative history;

   (b)Habeas Corpus is a summary procedure, and rarely should such an appeal take more time than a standard appeal.  It is immaterial that a more extensive argument was mounted on further appeal, after Mr Marino had been released;

   (c)Nothing about the respondent’s conduct justifies increased costs.  Its view of the legislation was consistent with earlier judgments of this Court on sentence appeals.  Following the Supreme Court judgment, it is established that Mr Marino was unlawfully detained, but compensation for that is a separate matter.

3. The appellant will have costs as for a standard appeal on a band A basis, with provision for second counsel (that is, a total of $13,380.00), with usual disbursements.   We decline the respondent’s invitation to limit the award to costs actually paid by Mr Marino;  that would be to exploit his counsel’s willingness to undertake work on a pro bono or discounted basis.

Solicitors:
Crown Law Office, Wellington for Respondent