Napier v Auckland District Court

[2021] NZHC 1645

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-002255

[2021] NZHC 1645

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

An application for Judicial Review of District Court Judge A-M J Bouchier’s Oral Judgment CIV 2019-044-000173 [2020]

NZDC 22613

BETWEEN

MARTIN NAPIER

Applicant

AND

AUCKLAND DISTRICT COURT

First Respondent

AND

LANDSEER MOTOR INVESTMENTS AUCKLAND LIMITED

Second Respondent

Hearing:	On the papers
Judgment:	5 July 2021

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 05 July 2021 at 1.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Counsel:
C T Patterson, Barrister, Auckland

Solicitors:

Crown Law, Wellington Anthony Harper, Auckland

Copy to the Applicant

NAPIER v AUCKLAND DISTRICT COURT [2021] NZHC 1645 [5 July 2021]

[1]    Mr Patterson, counsel appointed to assist the Court in this proceeding, has applied for an order for payment from public funds of the sum of $2,000 plus GST as a contribution towards costs incurred in assisting the Court.

[2]The proceeding was discontinued on 10 May 2021.

Background

[3]    Martin Napier, a self-represented litigant, applied to review a decision by the first respondent, the Auckland District Court, dismissing Mr Napier’s application to dismiss or strike out a claim by the second respondent, Landseer Motor Investments Ltd (Landseer) concerning a debt relating to an agreement for the purchase of a motor vehicle.

[4]    There is a considerable history to this dispute that does not need to be traversed here.

[5]    In a minute dated 18 March 2021, Walker J recorded that the first and second respondent had filed appearances abiding the decision of this Court and reserving rights. In the absence of a contradictor, Walker J directed the Registrar to arrange appointment of counsel to assist the Court.

[6]Mr Patterson was subsequently appointed counsel to assist.

[7]    Mr Patterson filed a memorandum dated 4 May 2021 in preparation for a case management conference that day and suggested how the Court might deal with objections raised by Landseer to evidence filed by Mr Napier.   In his minute dated   4 May 2021, Venning J made orders as suggested by Mr Patterson.

[8]    In accordance with timetable directions made by Walker J, on 7 May 2021, Mr Patterson prepared and filed submissions for the half day hearing set down for  11 May 2021.

[9]    Mr Napier filed a notice of discontinuance on 10 May 2021, the day before the scheduled hearing.

Application by Mr Patterson

[10]By memorandum dated 10 May 2021, Mr Patterson seeks payment of

$2,000.00 plus GST as a contribution towards the costs he incurred in relation to this proceeding. Mr Paterson notes that costs on a 2B basis for the work performed would amount to $7,887.00.

[11]   Mr Patterson does  not  seek  costs  from  Mr  Napier.  Mr  Patterson  says  Mr Napier discontinued the proceeding at the first reasonably available opportunity after receiving Mr Patterson’s submissions.

Discussion

[12]   As Mr Patterson notes, s 178 of the Senior Courts Act 2016 provides for the Court to direct payment from public funds of costs incurred by any person appointed counsel assisting the Court. The section provides that the Court may, subject to the provisions of any other Act, make any order it thinks just if, among other things, the Court is satisfied that the applicant for payment has provided material assistance to the Court.

[13]   Mr Patterson submits that the usual approach followed in applications for judicial review, where procedural fairness is an issue, is that the Court orders that the costs of counsel assisting be paid from public funds. He refers to the decisions of Grice and Venning JJ in Accident Compensation Corporation v Carey and Nuku v District Court at Auckland where their Honours directed that the costs of counsel assisting “be paid from public funds in the usual way”. (Accident Compensation Corporation v Carey [2021] NZHC 748 at [127]; and Nuku v District Court at Auckland [2016] NZHC 582 at [33].)

[14]   Mr Patterson acknowledges that a different approach was taken in Dunstan v Manukau District Court where Fitzgerald J ordered that a contribution to the costs of counsel assisting be paid by the applicant for judicial review. (Dunstan v Manukau District Court [2021] NZHC 582.

[15]   I do not consider that Fitzgerald J’s decision marks a departure from the approach taken in Carey  and Nuku.  Dunstan was an application for an order that  Ms Dunstan pay a contribution towards costs incurred over the unmeritorious claim that she had brought, and which went to a hearing, after Ms Dunstan had failed in an attempt to bring a private prosecution in relation to the same issues.

[16]   Whatever the merits of Mr Napier’s application, I do not consider the claim or Mr Napier’s conduct is of the same character as that in Dunstan.

[17]   I am also satisfied that the memorandum and submissions filed by Mr Patterson were of material assistance to the Court and that it is appropriate to order that a contribution towards Mr Patterson’s costs be paid from public funds.

Order

[18]   In accordance with s 178 of the Senior Courts Act 2016, I order that the sum of $2,000 plus GST be paid from public funds to Mr Patterson, counsel assisting the Court.

G J van Bohemen J