Sandilands v New Zealand Law Society
[2017] NZHC 2640
•27 October 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV2017-485-522 [2017] NZHC 2640
UNDER The Judicial Review Procedure 2016 BETWEEN
D N SANDILANDS Applicant
AND
NEW ZEALAND LAW SOCIETY First Respondent
AND
J A SIGNAL Second Respondent
Hearing: 25 September 2017 (via tele-conference) Appearances:
Applicant, self-represented
P Collins for Respondent
J Forrest for Second RespondentJudgment:
27 October 2017
COSTS JUDGMENT OF CHURCHMAN J
Introduction
[1] In my judgment dated 28 September 2017 I reserved part of my decision for
Mr Sandilands, as the successful party, to file further particulars as to a costs award.1
[2] I have already made an award of disbursements for the High Court filing fee of NZD 540 and the courier charges of AUD 142.43.
[3] The question remains as to what “reasonable disbursements” a successful lay
litigant can recover. There is a strong line of case authority which permits sums paid
1 Sandilands v New Zealand Law Society [2017] NZHC 2369.
SANDILANDS v NEW ZEALAND LAW SOCIETY [2017] NZHC 2640 [27 October 2017]
to a solicitor for help in preparing documents and preparing to appear and argue the case in person to be read liberally as “reasonable disbursements in the discretion of the Court”.2
[4] The Court of Appeal has indicated that it may be appropriate in cases to follow the English case authorities which:3
… can be looked at as indicating that the Court will provide to a successful layman litigant: an indemnity for this Court disbursements; a possible partial indemnity for any fees he pays by ways of professional assistance and nothing for his own time and trouble.
[5] Having allowed Mr Sandilands to recover his disbursements, I now turn to the “possible partial indemnity for any fees he [paid] by way of professional assistance”.
[6] Mr Sandilands engaged two law firms to provide him with legal advice and to assist him with bringing and filing his judicial review claim in the High Court. The first of these was the Australian firm Fenton O’Shea who charged him a total of AUD 900. The second was the New Zealand firm Rainey Collins Lawyers who charged, according to the recent breakdown of fees, NZD 2,214.44. I note there is some discrepancy in the numbers, as Mr Sandilands in his costs memoranda claimed NZD 2205.75, being the amount he paid to Rainey Collins, inclusive of the High Court filing fee.
[7] I asked Mr Sandilands to file further details as to precisely which costs were incurred which might satisfy the “reasonable disbursement test” set out above. The legal invoice of Fenton O’Shea is not entirely helpful; it does not aid the court in distinguishing precisely which actions were taken by Mr Sandilands’ solicitors to aid him in preparing documents and preparing to appear. Without clear information, I am inclined to take a more restricted approach to what Mr Sandilands can recover as
“reasonable disbursements”.
2 Re Working Capital Solutions Holdings Ltd v Pezaro [2014] NZHC 2480 at [24] and [25]; Re
Collier (a bankrupt) [1996] 2 NZLR 438 (CA).
3 Lysnar v National Bank of New Zealand Limited (No 2) [1935] NZLR 557 at 562.
[8] Having read the Fenton O’Shea invoice closely, I award costs of AUD 270 for the work done in helping Mr Sandilands file with the Wellington High Court. I am not persuaded Mr Sandilands’ should recover the full fees charged by Fenton O’Shea as much of the work they did appears to have been replicated by Rainey
Collins. The particulars of the invoice which I allow as disbursements read:
Date Description of work undertaken
Amount charged (AUD)
03/02/2017 Email from D Sandilands attaching letter from
Paul Collins, Barrister
$45 08/02/2017 Email from D Sandilands with instruction to file claim $45 09/03/2017 Email from D Sandilands to find New Zealand lawyer to file statement of claim $45 09/03/2017 Email to and from New Zealand High Court regarding court filing fee $45 24/03/2017 Email to Rainey Collins draft statement of claim for filing $45 04/04/2017 Email to client advising we will transfer filing fee to Rainey Collin [sic] Lawyers $45 TOTAL: $270
[9] In completing this forensic analysis I must justify the exercise of my discretion. Here, Mr Sandilands is to be reimbursed for the work undertaken by solicitors for professional assistance in bringing his successful claim. I am not allowing Mr Sandilands to be reimbursed for the initial contact with Fenton O’Shea, exchanges with Fenton O’Shea around payment of separate, unrelated invoices, the email exchanges relating to the finding of a Wellington solicitor or the communications between Rainey Collins and Fenton O’Shea.
[10] In relation to the Rainey Collins Lawyers invoice I am persuaded Mr Sandilands ought to recover as disbursements the full amount that he paid to Rainey Collins (NZD 2205.75. Having already ordered he be reimbursed for his filing fee of NZD 540 the outstanding amount he has claimed is NZD 1665.75.
[11] Mr Sandilands was obliged to obtain legal assistance, both for the filing of the notice of proceeding and secondly because from the file it appears Mr Sandilands had a great degree of trouble in ascertaining precisely who the defendant was to be in this judicial review proceeding. Much of Rainey Collins’ charged time was spent liaising with Mr Collins and the High Court Registry to ascertain the correct defendant. To this end an affidavit was filed and sworn by a senior solicitor of the firm to confirm that Rainey Collins, while not representing Mr Sandilands, was assisting him in “filing and so on” and had been informed (erroneously) by Mr Collins for the New Zealand Law Society that the correct defendant was the “Standards Committee”.
[12] This sort of detail, which assisted in the bringing of this successful claim, was facilitated in great part by the involvement of Rainey Collins. Accordingly I find that the Rainey Collins invoice can be liberally read as a “reasonable disbursement” of the plaintiff.
[13] I note that this approach matches that taken in Working Capital Solutions Holdings Limited v Pezaro, which is one of the authorities for the liberal interpretation of “disbursements”.4 The debtor there sought costs of NZD 2,277, being the amount invoiced by her solicitors in relation to the bankruptcy proceeding she had successfully represented herself in. The Court there awarded the full amount of costs, despite not having a detailed breakdown of what they related to.5
[14] The total amount of disbursements awarded to Mr Sandilands is therefore as follows:
(a) the NZD 540 filing fee already ordered;6
(b) the AUD 142.43 courier costs already ordered;7
4 Working Capital Solutions Holdings Ltd v Pezaro, above n 2, at [14]–[20].
5 At [9].
6 Sandilands v New Zealand Law Society, above n 1, at [33].
7 At [34].
(c) AUD 270, being the directly relevant portion of the Australian
solicitor’s fees; and
(d) NZD 1,665.75, being the amount paid by Mr Sandilands for Rainey
Collins’ assistance, minus the filing fee already awarded above.
[15] At the time of judgment, the AUD/NZD exchange rate is AUD 1.0 to
NZD 1.12. The AUD 270 disbursement in New Zealand dollars is thus NZD 302.59.
[16] In addition to my previous disbursements order, I therefore require the defendant to pay a total of NZD 1,968.34 to the plaintiff in “reasonable disbursements”.
Churchman J
Solicitors:
Rainey Collins lawyers, Wellington
New Zealand Law Society, Wellington
P Collins, Auckland
Darroch Forrest, Wellington
6