McGuire v Secretary for Justice

[2019] NZHC 542

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-761

[2019] NZHC 542

UNDER

the Judicature Amendment Act 1972

AND

Part 30 of the High Court Rules

BETWEEN

JEREMY JAMES McGUIRE

Plaintiff

AND

SECRETARY FOR JUSTICE

First Defendant

AND

NEW ZEALAND LAW SOCIETY

Second Defendant

Hearing:

On the Papers

Counsel:

Appellant in Person

G L Melvin and M J McKillop for First Defendant P N Collins for Second Defendant

Judgment:

22 March 2019

JUDGMENT OF CLARK J (COSTS)

[1]                 I dismissed Mr McGuire’s application for judicial review in a judgment delivered 31 January 2019.1

[2]                 The final paragraph of the judgment concluded with the observation that costs followed the event but if the parties were unable to agree costs they should file focused memorandum not exceeding five pages.

1      McGuire v Secretary for Justice [2019] NZHC 42.

McGUIRE v SECRETARY FOR JUSTICE [2019] NZHC 542 [22 March 2019]

[3]                 Mr McGuire was to file his memorandum within 10 working days within service on him of any memoranda filed by the defendants.

[4]                 The first and second defendants  filed costs  memoranda  on (respectively)  11 and 14 February 2019.

[5]                 The file was put before me on 20 March 2019. It transpires that the case manager emailed Mr McGuire on 8 March 2019 referring to the defendants’ respective memoranda. The case manager expected to hear from Mr McGuire by 5 pm, 11 March at which time Mr McGuire was advised the file would be provided to me.

[6]                 On 14 March Mr McGuire replied. Mr McGuire advised he had asked a lawyer friend to make a settlement offer to the Law Society which had until 5 pm on 15 March to respond. Mr McGuire asked that the file not be sent to the Judge until the middle of the following week. There have been no further communications from Mr McGuire.

[7]                 Before turning to the applications for costs I record that Mr Collins, counsel for the second defendant, advised in his memorandum that he sought to agree costs with Mr McGuire in a letter sent by email on 4 February 2019. Mr Collins advises Mr McGuire replied the same day by email saying: “I haven’t been able to read the judgment yet Paul sorry. However, if I don’t appeal, I will be in a position to pay costs.” Counsel for the second defendant has heard nothing further from Mr McGuire.

[8]                 Similarly, in his memorandum on behalf of the first defendant, Mr McKillop advised the first defendant had endeavoured to agree costs with Mr McGuire but has had no response to counsel’s proposal.

[9]Both defendants seek an order for costs calculated on a 2B basis.

[10]              For the purpose of costs a judicial review proceeding is treated as an ordinary civil proceeding and costs are usually classified 2B in terms of sch 3 to the High Court Rules 2016.2

[11]The first defendant’s claimed costs are as follows:

Scale costs: Schedule 2B – daily recovery rate is $2,230

Step	Description	Time Allocation	Amount
2	Commencement of defence by defendant	2.00 days	$4,460.00
9	Pleading in response to amended pleading (Payable regardless of outcome except when formal or consented to)	.60 day	$1,338.00
9	Pleading in response to amended pleading (payable regardless of outcome except when formal or consented to)	0.60 day	$1,338.00
10	Preparation for first case management conference (including discussion about discovery)	0.40 day	$892.00
11	Filing memorandum for first case management conference or mentions hearing	0.40 day	$892.00
11	Filing memorandum for second case management conference or mentions hearing	0.40 day	$892.00
12	Appearance    at    mentions    hearing    or callover	0.20 day	$446.00
13	Appearance at first case management conference	0.30 day	$669.00
30	Plaintiff’s or defendant’s preparation of briefs or affidavits	2.50 days	$5,575.00
33	Preparation for hearing	3.00 days	$6,690.00
34	Appearance at hearing for sole or principal counsel	1.00 day	$2,230.00
Total Costs	$25,422.00
Disbursements
Court filing fees Statement of Defence Amended Statement of Defence	95.65 191.30	$286.95
Courier fees	$18.84
Photocopying	$65.14
Subtotal	$370.93
Total Costs and Disbursements	$25,792.93

2      Sims Court Practice (NZ) at [J72A9.7].

[12]The second defendant’s claimed costs are as follows:

Step	Description	Time Allocation	Amount
2	Commencement     of    defence     (filing statement of defence 27 October 2016).	2.0 days	$4,460.00
9	Statements of defence to first, second and third  amended   statements   of   claim (14 November 2016, 26 March 2018 & 21 June 2018).	1.8 days (0.6x3)	$4,014.00
10	Preparation for first case management conference	0.4 day	$892.00
11	Filing    memorandum    for     first     case management     conference    (27 October 2018)	0.4 day	$892.00
13	Appearance at first case management conference (31 October 2016).	0.3 day	$669.00
30	Preparation    of    second    defendant’s affidavits: ·   Mary Elizabeth Olliver, 27 October 2016 ·   Neil Kevin Mallon, 31 May 2018	2.5 days	$5575.00
33	Preparation for hearing.	3.0 days	$6690.00
34	Appearance at hearing (15 August 2018)	1.0 day	$2230.00
Total Costs	11.4 days	$25,422.00
Disbursements
Fees for (4) statements of defence per item 1 & 2 above; 4 x $110	$440.00
Sealing fee on judgment to be paid upon making of costs order	$50.00
Total Disbursements	$490.00

[13]              The defendants have not claimed, in respect of any step in the proceeding, costs or disbursements to which they are not entitled.

[14]              Accordingly, an award of costs is made to each defendant, in the amount claimed by each.

Result

[15]Judgment is given in favour of the first defendant in the sum of $25,792.93.

[16]Judgment is given in favour of the second defendant in the sum of $25,912.00.

Karen Clark J

Solicitors:

Crown Law Office, Wellington for First Defendant

New Zealand Law Society, Wellington for Second Defendant