Sandilands v New Zealand Law Society
[2017] NZHC 2369
•28 September 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV 2017-485-522 [2017] NZHC 2369
BETWEEN D N SANDILANDS
Applicant
AND
NEW ZEALAND LAW SOCIETY First Respondent
AND
J A SIGNAL Second Respondent
Hearing: 25 September 2017 (Teleconference) Counsel:
Applicant in Person
P Collins for First Respondent
J Forrest for Second RespondentJudgment:
28 September 2017
JUDGMENT OF CHURCHMAN J
[1] By statement of claim dated 9 June 2017 the applicant sought judicial review of a decision made by the Manawatu Standards Committee on 17 December 2013 in relation to complaint number 8472.
[2] The sole relief sought in the statement of claim was the setting aside of the decision in complaint 8472.
[3] The matter came before the Court by way of judicial teleconference on
25 July 2017.
[4] By consent the New Zealand Law Society was substituted for the National
Standards Committee as the first respondent.
SANDILANDS v NZ LAW SOCIETY [2017] NZHC 2369 [28 September 2017]
[5] The Court made an order pursuant to s 14(2)(b)(i) of the Judicial Review Procedure Act 2016 that the second respondent be added to the proceedings. A timetable order in relation to the filing of documents was also made.
[6] On 1 August 2017 the first respondent filed a statement of defence. This statement of defence expressly admitted that the first respondent had made a reviewable error.
[7] On the same date the first respondent filed a memorandum of counsel indicating that the reviewable error was admitted and that the first respondent would not defend the judicial review application.
[8] On 7 August 2017 the second respondent filed a statement of defence.
[9] The first respondent filed a memorandum dated 20 September 2017 for the case management teleconference of 25 September 2017. In this memorandum, the first respondent made it clear that it consented to judgment being entered in terms sought by the applicant in the statement of claim and that the decision (complaint 8472) be set aside. The memorandum indicated that the first respondent opposed any order for costs.
[10] By memorandum of 22 September 2017 the second respondent indicated that she did not oppose the application for judicial review and consented to the decision in relation to complaint 8472 being set aside.
[11] The applicant filed a number of further documents and memoranda including: (a) an affidavit dated 26 August 2017;
(b) an affidavit dated 16 September 2017; (c) an email dated 19 September 2017;
(d) a memorandum dated 19 September 2017;
(e) a memorandum dated 20 September 2017; (f) memoranda dated 24 September 2017.
[12] The applicant sought in some of these documents reimbursement of sums variously described as “disbursements” and “costs”.
[13] In addition to seeking costs, one of the memoranda dated 24 September 2017 sought various directions as to how the first respondent should deal with complaint 8472 and six other complaints.
[14] Pursuant to the affidavit dated 16 September 2017 Mr Sandilands sought as “costs” the sum of AU$810.00 paid to an Australian law firm Fenton O’Shea, DHL courier costs of $103.71, and legal fees paid to Wellington law firm Rainey Collins in the sum of $2,205.75, a total of $3,119.46.
[15] The memorandum of 20 September 2017 sought a further AU$36.72 by way of further courier costs. The total amount sought is NZD$3,158.18 in relation to disbursements.
[16] By a memorandum dated 22 September 2017, counsel for the first respondent opposed the various costs applications other than acknowledging that the applicant was entitled to reimbursement of the High Court filing fee $540.00.
[17] The first respondent drew the Court’s attention to r 14.12 of the High Court
Rules 2016 and noted that “disbursement” was defined as being:
… an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs …
[18] The memorandum also pointed out that the applicant had not, at any stage, been represented by lawyers in the proceedings. It was noted that when a party is represented by lawyers, costs are calculated by reference to the different categories of appropriate daily recovery rates and time allocations in schs 2 and 3 of the High Court Rules.
[19] In a memorandum dated 24 September 2017 Mr Sandilands made a new claim for $5,000 “costs” in relation to his own time and, together with his disbursement claims his total sum claimed was $8,958.18.
[20] In relation to the courier costs Mr Sandilands said that these were incurred because the High Court required original copies of the affidavits and that, as he resided in Queensland, the only practical way of him supplying these to the High Court was by way of courier.
[21] At the teleconference on 25 September 2017 Mr Sandilands expanded on the basis for his claim for “costs” of $5,000 in respect of his own time. He suggested that this case involved an issue of public interest and thus qualified as the sort of “exceptional circumstances” which justified such an award.
[22] At the teleconference, Mr Collins for the first respondent emphasised that at all stages in these proceedings Mr Sandilands had been self-represented and that Rainey Collins had been at pains to indicate that they did not represent him. He pointed out that the statement of claim and supporting substantive affidavits filed in this matter self-evidently were not drafted by a lawyer.
[23] He said that to the extent that Rainey Collins advised Mr Sandilands, they were acting as his agent and that they did not do anything recognised within sch 3 of the High Court Rules as one of the matters in respect of which costs was calculated. Mr Collins acknowledged that the Court had an element of discretion in relation to disbursements but confirmed that the only disbursement accepted was the filing fee.
[24] At the teleconference Ms Forrest for the second respondent indicated that she was unaware, until receipt of the latest memoranda filed by Mr Sandilands, that costs were sought against her client.
[25] She pointed out that the reviewable error in this case was not that of her client but of the first respondent but otherwise she adopted the submissions made on behalf of the first respondent.
Decision
[26] By consent I set aside the decision in relation to complaint 8472. That was the sole relief sought in the statement of claim.
[27] The first respondent is now obliged to consider that matter afresh. However, it is not for me to tell the first respondent how to do that or to make the various other directions in relation to that complaint and the six other complaints as sought by Mr Sandilands in his most recent memoranda.
[28] In relation to costs and disbursements I accept that the reviewable error here was made by the first respondent and not the second respondent and it is therefore appropriate that the first respondent meet any award of costs.
Lay litigant costs
[29] The concept of “costs” in the High Court Rules, as distinct from disbursements, is constrained by the content and formatting of schs 2 and 3. Schedule 3 lays out a comprehensive list of what actions billed by solicitors may be recovered for.1 Unless exceptional circumstances exist, the rule is that a lay litigant like Mr Sandilands cannot recover costs. No such exceptional circumstances exist here.
[30] Neither Rainey Collins nor Fenton O’Shea formally represented Mr Sandilands in the proceedings or undertook any of the recoverable work identified in schedule 3. I am therefore unable to order reimbursement of their fees as “costs”.
[31] However, there is some authority that sums paid to a solicitor for help in preparing documents and preparing to appear and argue the case in person can be read liberally as “reasonable disbursements”, the rationale being that those costs were incurred and have assisted in relieving the unsuccessful party from having to
pay costs for the lay litigant’s legal representation at hearing.2 Unfortunately, I
1 High Court Rules 2016, sch 3.
2 A Beck McGechan on Procedure (loose leaf ed, Thompson Reuters) at [HRPt14.10(2)], citing
cannot determine on the sparse particulars of the two invoices provided by Mr Sandilands on 16 September 2017 the degree to which the costs incurred by Fenton O’Shea and Rainey Collins fall under this classification.
[32] I thus reserve my decision on this aspect of costs and direct Mr Sandilands to file full details of the services rendered to him by the two firms, such information to be filed within 14 days of this decision. I note further that Mr Sandilands is not permitted to “white-out” or otherwise redact aspects of the invoices he does not like as he appears to have done in documentation previously supplied.
[33] In the meantime, by consent, I order that the first respondent reimburse the applicant for the filing fee in the sum of $540.00.
[34] I also order that the first respondent reimburse the applicant courier charges of AU$142.43. This is on the basis that these expenses were reasonably incurred and, in terms of r 14.12 of the High Court Rules fall within the definition of a disbursement.
[35] Had Mr Sandilands been represented by a solicitor, the disbursement on couriering the affidavits from Australia would have been incurred and would have been shown as a separate charge to legal fees.
[36] I decline to make any award in relation to Mr Sandilands’ own time. I do not accept that the proceedings involved any particular element of public interest so as to justify departure from the standard rule which is that litigants in person are not entitled to claim “costs” for their own time.3
[37] I conclude by noting that much of the material put before the Court by Mr Sandilands has been either irrelevant or unhelpful, in particular his allegations that counsel for the respondents have been engaged in some form of inappropriate
conspiracy or collusion.
Harrison v Keogh [2015] NZHC 3320 at [11].
3 Re Collier (a bankrupt) [1996] 2 NZLR 438, (1996) 10 PRNZ 145 (CA).
[38] Mr Collins has treated Mr Sandilands with courtesy and respect and
Mr Sandilands’ insinuations to the contrary are regrettable.
Churchman J
Counsel:
Darroch Forrest, Wellington
P Collins, Barrister, Auckland
Applicant
3