Owen v District Court at Invercargill

[2017] NZHC 1105

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2015-425-32 [2017] NZHC 1105

IN THE MATTER

of the Judicature Amendment Act 1972

BETWEEN

KEITH ALEXANDER OWEN Applicant

AND

THE DISTRICT COURT AT INVERCARGILL

Defendant

Hearing:	24 May 2017
Counsel:	A J McKenzie for Applicant K Laurenson for Defendant
Judgment:	25 May 2017

JUDGMENT OF WILLIAMS J

[1]      This is an application for judicial review of a decision by a Judge to give the applicant a “final warning” over his timetabling non-compliances.

[2]      The applicant is a criminal barrister whose clients are primarily legal aid referrals.   This case relates to one such referral.   The applicant appeared before Judge Phillips in the District Court at Invercargill on 12 November 2014 for a case review hearing.  This is a standard criminal pre-trial procedure to ensure that the case is  properly  managed  to  its  eventual  defended  hearing.    The  presiding  Judge, Judge Phillips, was plainly not happy.  He asked the applicant for an explanation as to why he had not filed a case management memorandum in advance of an earlier case review hearing on 22 October 2014.   The result of this failure had been, the Judge  said,  an  abandonment  of  that  hearing  putting  the  timetable  to  trial  back

unnecessarily by two to three weeks.

OWEN v THE DISTRICT COURT AT INVERCARGILL [2017] NZHC 1105 [25 May 2017]

[3]      After a short and terse exchange between bench and bar over that matter, the

Judge said:

I am giving consideration to fining you Mr Owen, do you wish to be heard on that?

[4]      There is no power to “fine” counsel but the Judge was plainly referring to the prospect of making a costs order against Mr Owen pursuant to s 364(2) of the Criminal Procedure Act 2011.

[5]      The applicant then, on the hoof as it were (he had received no warning prior to the hearing that such an outcome was in prospect), took the opportunity afforded him to make brief submissions on the point.  He said:

I would submit that in this case I have acted reasonably, Sir.   I’ve done what’s required of me and I attained other counsel to represent Mr Hodge [the defendant in the criminal proceeding] at the CMM hearing.   Given I hadn’t met Mr Hodge I was unable to obtain any instructions and therefore I was unable to file a case management memorandum.  I do not believe this is a case where it is appropriate that I am to be fined for behaviour that I submit is reasonable.  I have nothing further to submit.

[6]      In the earlier exchange, the applicant explained to the Judge that he had written to his client and had phoned him when no response was received, but had been unable to make any contact.  He said he had a prior booked holiday at the time of  the  earlier  case  management  hearing  in  October  but  had  arranged  for  other counsel to appear albeit that, in the circumstances, substitute counsel had nothing useful to contribute.

[7]      The Judge delivered a decision on the issue.  I take the opportunity to set it out in full because it is brief:

Mr Owen represents Jayden Alexander Hodge.  Mr Hodge is facing a serious matter involving s 194(a) Crimes Act.  Mr Hodge appeared on 5 September

2014, represented by a duty solicitor, and immediately entered a plea of not

guilty on his own behalf through the duty solicitor.   Mr Owen was then assigned his legal counsel.  The matter had been remanded to a case review hearing on 22 October 2014.   My staff here in the Invercargill Court had noted that the case memorandum had not been filed and contacted Mr Owen. He was on leave.  He instructed Mrs Cuthill to appear for him at the case review hearing which couldn’t proceed because there was no case memorandum.  I directed that there was to be an inquiry as to why there had been the default in filing the case memorandum and I am advised by my staff

that the explanation was sought and no explanation was given until further pressing from my staff.

Today Mr Owen says he has acted reasonably.  I note there was a two week delay between him being assigned and he writing to make contact with Mr Hodge.     I  consider  that  is  totally  unacceptable  and  it  is  totally unexplained and as a result of that Mr Hodge could not have made contact with him because Mr Owen left on holiday.  As a direct result we are now a further two or three weeks down the track with no progress whatsoever.  I issue Mr Owen a final warning.  If he is in default in the future on filing any case memorandum by due date, he can expect to be fined.

[8]      The applicant now seeks judicial review of the Judge’s “decision”.

[9]      In his brief affidavit the applicant deposed that the Judge’s minute above was then referred (presumably by the Judge) to the Legal Services Commissioner who commenced “in effect a ‘disciplinary investigation’”. The applicant said:

A stated concern [presumably by the Commissioner] is the ‘final warning’ given to me by the Court, something that no doubt suggests that my conduct has previously not met the standards expected.  If upheld, such a complaint will  make  my  provider  contract  less  secure  and  requires  extra  work  in renewal of approval, which occurs in 2017.

[10]     The applicant continued:

I note that prior to this final warning being issued by the Judge, I had never received any warnings in relation to the CMM process.

I have checked my records and from these records can confirm that of 49

CMM’s filed prior to this incident in the Invercargill District Court, 48 of them were prepared and filed within the statutory timeframes under the Criminal Procedure Act 2013.

There is one CMM that was not filed on time, it was due 12 February 2014 and it was not filed [until] the 14 February 2014.  It was filed late because of a sending problem with my email system.   Once I became aware of the problem I hand delivered the CMM to the Court.

It is significantly better than the national average which is less than 50%.

[11]     In his statement of claim, the applicant alleges that:

(a)       the giving of a final warning was illegal because there is no provision for such a thing under the Criminal Procedure Act;

(b)the Judge failed to take account of the particular circumstances of this case including that the client had pleaded not guilty prior to the assignment of the case to the applicant who was therefore unaware of the basis upon which the plea was entered, and the applicant’s understandable inability to make contact with the applicant in order to obtain instructions;

(c)       the applicant was ambushed in that he received no reasonable notice

of the Judge’s intention as required by s 364(5) of the Act;

(d)given the applicant’s generally acceptable standard of performance with respect to CMMs, a final warning was disproportionate; and

(e)      in  all  of  the  circumstances  the  decision  to  issue  a  warning  was irrational.

[12]     In written submissions counsel, Mr McKenzie, submitted that although the decision was in the end to refrain from imposing the sanction in s 364, there was nonetheless a practical effect in the final warning, and the judicial review procedure should be sufficiently robust to capture these kinds of cases.

[13]     As to illegality, the argument was that s 364(2) requires the Court to be satisfied that the failure was significant and without reasonable excuse.   On an objective assessment of the facts neither requirement was remotely present, counsel submitted.

[14]     On the issue of failure to take account of relevant considerations, counsel focused on the fact that the Judge made nothing of the point that such non- compliance  was  entirely  out  of  character  on  an  objective  assessment  of  the applicant’s compliance history.

[15]     In respect of the natural justice argument the submission was that s 364(5) of the Act  required  the  person  being  considered  for  a  costs  order  to  be  given  a

“reasonable opportunity to be heard”.  The submission was that no such reasonable opportunity was provided.

[16]     In any event, counsel argued that the issuing of a final warning (which in the end had its own practical implications) was a disproportionate response – the making of a mountain out of a molehill.

[17]     Dunningham J directed that in this case a contradictor should be required to step in1  and so Ms Laurenson of Crown Law obliged accordingly.   Ms Laurenson argued that no statutory power of decision had in fact been exercised in terms of s 4 of the Judicature Amendment Act 1972 – the Judge had simply given counsel a warning.  She submitted:

Both the Judge who issued the warning and any future Judge considering whether to fine the plaintiff under s 364 of the CPA would need to consider the requirements of that section in the ordinary way.

[18]     The giving of a warning, it was submitted, was simply the Judge managing the court room, including counsel, as Judges must and are wont to do.

[19]     In any event, the defendant was given an opportunity to be heard and the giving of the warning was perfectly proportionate since it involved no  practical sanction at all.

Analysis

[20]     Section 364 of the Criminal Procedure Act provides as follows:

(1)       In this section and section 381,—

costs order means an order under subsection (2)

procedural failure means a failure, or refusal, to comply with a requirement imposed by or under this Act or any rules of court or regulations made under it, or the Criminal Disclosure Act 2008 or any regulations made under that Act

prosecution—

1      Minute of 7 December 2015.

(a)      means  any  proceedings  commenced  by  the  filing  of  a charging document; but

(b)      does not include an appeal.

(2)       A court  may order  the  defendant,  the  defendant's  lawyer,  or the prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the court is satisfied that the failure  is  significant  and  there  is  no  reasonable  excuse  for  that failure.

(3)       The sum must be no more than is just and reasonable in the light of the costs incurred by the court, victims, witnesses, and any other person.

(4)       A costs  order  may  be  made  on  the  court's  own  motion,  or  on application by the defendant, the defendant's lawyer, or the prosecutor.

(5)       Before making a costs order, the court must give the person against whom it is to be made a reasonable opportunity to be heard.

(6)       A costs order may be made even if the defendant has not yet been convicted, or is eventually discharged, or the charge is dismissed.

(7)       The court may make more than 1 costs order against the same person in the course of the same prosecution.

(8)       The court may order that some or all of the amount ordered to be paid under a costs order be paid to any person connected with the prosecution.

(9)      Subsections (2) to (8) do not limit or affect the Costs in Criminal

Cases Act 1967.

[21]     Thus, a Judge can award costs directly against counsel (this provision was plainly introduced to give the Court more tools in ensuring criminal proceedings are advanced in an efficient and disciplined manner).  But counsel must receive adequate warning and the Judge must be satisfied that the failure for which the costs award is imposed was “significant and there is no reasonable excuse for that failure”.   The Judge may make any such order of his or her own motion.

[22]     In this case, the Judge warned counsel that he was considering imposing costs of his own motion.  There may be some question about whether there was sufficient notice to satisfy s 364(5), and there may well be a good deal of question about whether  the  “failure”  was  sufficiently  significant  and  sufficiently  lacking  in  a

reasonable excuse.  But all that falls away when the obvious point is made that the

Judge did not actually impose the statutory sanction.  He decided not to.

[23]     This case is really about the downstream effect of a decision to refrain from imposing costs.  That is a “refusal to exercise … a statutory power”, in terms of s 4 of the Judicature Amendment Act 1972.2   Ordinarily, the refusal provision applies to an applicant wishing to challenge the refusal of the holder of a statutory discretion to exercise that discretion in a manner favourable to the applicant.  Here, the applicant is complaining not about the Judge’s refusal to impose costs on him: that would be irrational.   Rather, the complaint is about the condition upon which the Judge refrained from doing so.  That is, he issued a final warning and the warning, it seems,

triggered an inquiry by the Legal Services Commissioner.  I do not need to decide at this stage whether a failure to exercise a statutory power on conditions is reviewable, for the reasons that follow.

[24]     To be reviewable, a statutory power of decision must affect a person’s rights or interests.3    The Judge’s decision does not itself affect Mr Owen in the relevant sense in the absence of any further action against him.   Rather, it is the potential effect of any notice the Legal Services Commissioner may take of what the Judge said that may affect his interests.  That is where the applicant needs to set his sights. The Judge’s decision will only become prejudicial to Mr Owen’s interests if the Commissioner acts on it to make it so.

[25]     I acknowledge that it may well be difficult to divorce the separate decision the Legal Services Commissioner may make about the applicant’s performance as a provider  under  the Act  from  the  negative  view  espoused  by  the  Judge  which triggered the Commissioner’s inquiry.  There is no dodging the fact that such a view could well have a real impact on the view the Commissioner may ultimately take. Judges, it may be presumed, do not lightly give a final warning and then direct its conveyance to the Legal Services Commissioner.  But in the end it is what the Legal Services Commissioner thinks, and the action he or she takes as a result, that will

determine any impact on Mr Owen’s interests.

2      Although now repealed, that Act applies to this proceeding pursuant to s 23 of the Judicial

Review Procedure Act 2016.

3      Judicature Amendment Act 1972, s 3, definition of “statutory power of decision”.

[26]   It may be that when appraised of the background to the matter, the Commissioner considers that the non-compliance, though not immaterial, was not so significant as to warrant the taking of any particular action against the applicant.  It may be on the other hand (although Mr McKenzie denies it) that the Judge’s final warning is  not  the  first  issue of  concern that  has  come  to  the  attention  of the Commissioner.  If that is the case a challenge to the Judge’s final warning would, I apprehend, be quite beside the point and serve little purpose.

[27]     In   short,   too   much   is   not   yet   known   because   the   Legal   Services Commissioner must complete the inquiry. Yet the Commissioner has not been joined to this proceeding and so his or her voice is absent.

[28]     The  applicant  will  need  to  make  his  submission  to  the  Commissioner, including providing an explanation as to why the Judge was wrong to issue a final warning.   It is the impact of that on the Commissioner that is important.  It is the mind of the Commissioner which must in the end be tested and, if necessary, ultimately challenged in appropriate proceedings.

[29]     If, when the Commissioner’s decision is to hand, it becomes clear that the Judge’s final warning was decisive, the applicant ought properly to be able to challenge not just the Commissioner’s decision itself but the judicial pronouncement upon which it was decisively based.  He ought to be able to argue that the statutory tests of significant failure and lack of reasonable excuse could not, on any reading of the factual matrix, have been satisfied; in other words that the warning was irrational from the start.  Whether that challenge is pursuant to s 8 of the Judicature Review Procedure Act 2016, or (if a statutory power cannot be identified) through one of the prerogative writs such as certiorari, may be a matter for further consideration at that point.

[30]     Having reflected on the matter, it is not appropriate for me to express a view on the merits at this point without being better appraised of the relevant facts than is achieved by perusal of the current pleadings.   I would say however, that such an argument must be seen as very far from hopeless.

[31]     Mr  McKenzie  invited  me  at  this  point  to  simply  adjourn  the  current proceedings to allow the Commissioner to make a decision and for him or her to be joined to the proceeding if the decision makes that necessary.   Having considered that course, I do not think that is appropriate.   The proceeding would need to be substantially re-pleaded and an entirely different statutory decider to that currently challenged would become the new focus of the proceeding, even if the District Court remains as an ancillary target.   The better analysis is that the current facts do not support the challenge currently made.

[32]     I dismiss the application accordingly subject to two qualifications.  The first is that the dismissal is without prejudice to the reinstitution of proceedings, if that becomes necessary, involving both the Commissioner and the District Court at Invercargill.  The second is that this is a case where costs should be left to lie where they fall.

[33]     Subject to those points, the application is dismissed accordingly.

Williams J

Solicitors:

Armagh Chambers, Christchurch for Applicant

Crown Law, Wellington for Defendant