Sax v Simpson

[2017] NZHC 1128

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2013-470-495 [2017] NZHC 1128

BETWEEN

JANINE DAVINA SAX

Applicant

AND

LUKE ANDREW SIMPSON First Respondent

TAURANGA FAMILY COURT Second Respondent

Hearing:	On the papers
Judgment:	29 May 2017

JUDGMENT OF DUFFY J

This judgment was delivered by me on 29 May 2017 at 1.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

SAX v SIMPSON [costs] [2017] NZHC 1128 [29 May 2017]

[1]      On 30 June 2015 I delivered a judgment in which the applicant, Janine Sax, had some measure of success persuading me to set aside a security for costs order that Doogue AJ had made against her in this proceeding.  However, in respect of one matter, which related to a judicial review of the decision by Judge Geoghan to make an order dissolving the parties’ marriage, I refused to set aside the security for costs

order.1  At the time I heard the application to set aside the security for costs order the

first respondent, Mr Simpson, was legally represented by Mr Eggleston.

[2]      Later Ms Sax applied for recall of my 30 June 2015 judgment insofar as it related to the security for costs for judicial review of the dissolution order.  At the hearing of the recall application Mr Simpson appeared in person to oppose that application.  I delivered judgment refusing recall.

[3]      Costs are now sought for Mr Simpson in respect of the recall application. The memorandum seeking costs has been filed by Mr Eggleston who records himself as counsel for Mr Simpson.   The memorandum states that while Mr Simpson appeared in person at the hearing of the recall application he engaged counsel to advise him throughout the recall application, including the preparation of the written submissions tendered by Mr Simpson.  Mr Eggleston notes that the time allocation at category 2B for preparation of submissions is 1.5 days.   However, in the present circumstances Mr Eggleston submits a time allocation of 0.75 days would be a fair allowance.  Accordingly, he seeks category 2B costs for that time allocation for his engagement in the preparation of the submissions.   On this approach costs would total $1,672.50.

[4]      Since the costs memorandum was filed there has been no memorandum filed by Ms Sax.  It is clear to me that she was unwell in the latter part of 2016, but there is nothing to suggest to me that she is currently unwell.

[5]      The  general  rule  is  that  costs  follow  the  event.2      However,  there  is  an established rule that a lay litigant is not entitled, except in exceptional cases, to

1      Sax v Simpson [2015] NZHC 3286 .

2      High Court Rules 2016, r 14.2(a).

recover costs for his or her time and trouble.3     There is nothing about the circumstances  in  this  case  to  bring  it  within  the  exception.4     Accordingly Mr Simpson has no entitlement to costs for any preparatory work he did on the submissions.

[6]      A party who has been legally represented and who subsequently acts for himself or herself may have costs prior to withdrawal of the legal representation, but not afterwards.5   However, this approach was followed when the legal representative had been formally engaged in representing the party.

[7]      In the present circumstances Mr Eggleston never registered an appearance with the Court regarding the recall application.  No notice of opposition identifying Mr  Eggleston  as  counsel  for  Mr  Simpson  was  ever  filed.    Before  the  hearing Mr Simpson filed one memorandum in person in which he recorded appearing for himself and on the front sheet gave his personal address as his address for service. Thus everything about the memorandum suggested he was representing himself in relation to the recall application.

[8]      In his memorandum Mr Simpson requested the recall application be dealt with on the papers.  The application was, however, set down for hearing in the usual way.  Shortly before the hearing there was filed a document entitled “memorandum of submissions for first respondent”.  The front sheet of the memorandum recorded the name of solicitors who otherwise act for Mr Simpson in this proceeding and Mr Eggleston  was  recorded  as  counsel.     The  memorandum  was  signed  by Mr Eggleston, but he did not appear at the hearing.   Nor did he seek leave of the Court to permit him to act in this way, which is somewhat out of the ordinary for counsel  and  therefore  not  conduct  which  counsel  should  adopt  on  his  or  her initiative.

[9]      The question is whether Mr Eggleston has done sufficient to enable the Court to recognise him as counsel representing Mr Simpson.  Unless the Court recognises

3      Commissioner of Inland Revenue v Chesterfields Pre-Schools Ltd [2010] NZCA 400, (2010) 24

NZTC 24,500 at [162]; Re Collier (A Bankrupt) [1996] 2 NZLR 438, (1996) 10 PRNZ 145 (CA).

4      Lay litigants are entitled to recover reasonable disbursements.

5      Transit NZ v Cook HC Greymouth CP6/93, 30 June 1994.

any basis for awarding costs in favour of Mr Simpson.  I know of no case where a self-represented party has obtained an award of costs for preparatory work done by a barrister who has provided the party with assistance.

[10]     I do not consider that counsel can determine the basis on which he or she will be recognised as his or her client’s representative.   Either Mr Eggleston was representing Mr Simpson, in which case Mr Eggleston should have appeared for Mr Simpson on the recall application, or Mr Eggleston was not so acting.  I do not consider there can be a half way house form of representation where counsel simply remains in the background giving advice on legal argument and even preparing it. This may occur in fact, but when it does I do not consider it qualifies as a form of legal representation that can form the basis of a costs award.  This is certainly so when such conduct is undertaken without leave of the Court first being obtained.

[11]     If a party represents himself, as Mr Simpson did, as making an appearance in person on an application; and no formal appearance by counsel has earlier been recorded for that application, I consider the outcome in such circumstances is that the party is self-represented.  Accordingly the rule that self-represented persons are not entitled to costs award will apply.  Behind the scenes assistance from barristers has not previously been recognised as qualifying for an award of costs, nor do I think that generally it should do.  There may be room for recognition of the exceptional case such as where the assistance is on a difficult area of law and it has largely contributed to the successful outcome of a lay litigant’s case.  However, none of that applies here. The recall application had no merit in terms of established law and that was readily apparent.   It would have been open to Mr Simpson simply to have abided the decision of the Court.  The submissions prepared by Mr Eggleston did no more than to recite well established principles relating to the recall of judgments. For those reasons, insofar as I may have a discretion to award costs in the present circumstances I decline to exercise it.

[12]     I have already said Mr Simpson does not fall within the exception to the general rule against costs awards for self-represented persons.  It follows that on the recall application, despite his success, he is not entitled to an award of costs.

[13]     The application by Mr Simpson for costs is dismissed.