Siemer v Legal Complaints Review Officer
[2024] NZCA 220
•12 June 2024 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA266/2022 [2024] NZCA 220 |
| BETWEEN | VINCENT ROSS SIEMER |
| AND | LEGAL COMPLAINTS REVIEW OFFICER |
| Hearing: | 11 March 2024 |
Court: | Katz, Whata and Gault JJ |
Counsel: | Appellant in person |
Judgment: | 12 June 2024 at 12.30 pm |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe second respondent must pay the appellant the sum of $70.56 for disbursements incurred in the High Court.
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
Introduction
Mr Siemer appeals against the refusal by the High Court to make a costs order for payment of travel disbursements. The travel disbursements were incurred by Mr Siemer in attending a formal proof hearing that had to be adjourned to accommodate an unsuccessful application by the defendant (the second respondent on appeal) to extend the time to file a statement of defence.[1]
[1]Siemer v Legal Complaints Review Officer [2022] NZHC 908 [costs judgment].
This decision follows an earlier decision of this Court that required Mr Siemer to seek leave to appeal from the High Court (the jurisdiction judgment),[2] and the grant of leave by the High Court (the leave judgment).[3]
[2]Siemer v Legal Complaints Review Officer [2024] NZCA 219 [jurisdiction judgment].
[3]Siemer v Legal Complaints Review Officer [2024] NZHC 808 [leave judgment].
The respondents were granted leave not to appear at the hearing of this appeal, and they did not do so.
Background
A detailed account of the background is set out in the jurisdiction judgment.[4] In summary, Mr Siemer applied for judgment against Mr Luke by way of formal proof, following Mr Luke’s failure to file a statement of defence. The application was set down for hearing.
[4]Jurisdiction judgment, above n 2, at [4]–[10].
Mr Luke subsequently applied for leave to file a statement of defence out of time. That application was set down for hearing at the same time as Mr Siemer’s formal proof application. Mr Siemer engaged counsel to oppose Mr Luke’s application but intended to represent himself on the formal proof application. At the hearing, Mr Luke’s application was heard first, and the decision reserved. As a result, the formal proof hearing had to be adjourned.
Mr Luke’s application was dismissed following which Mr Siemer, as the successful party:
(a)sought legal costs in respect of Mr Luke’s application; and
(b)sought to recover a disbursement of $70.56 for his own “wasted” travel expenses in attending Court to represent himself at the formal proof hearing.[5]
[5]This claim was calculated on the basis of a return trip from Mr Siemer’s home to the High Court of 84 km. Mr Siemer claimed mileage at the rate of $0.84 per km, which he advised was the applicable government rate for reimbursement of personal travel costs at the time.
Mr Siemer’s claim for legal costs in respect of Mr Luke’s application was successful. However, his claim for a travel disbursement in respect of the formal proof hearing was dismissed, despite not being challenged by Mr Luke. The reason given by the Judge was, in essence, that Mr Luke could not have anticipated the need to adjourn the formal proof hearing. The need for an adjournment arose due to the Judge reserving her decision on Mr Luke’s application, which was a matter that was beyond Mr Luke’s control. The Judge concluded it would be unfair in such circumstances to order Mr Luke to meet Mr Siemer’s travel expenses.[6]
Jurisdiction
[6]Costs judgment, above n 1, at [28].
Lay litigants are not ordinarily entitled to claim costs but are entitled to seek to recover disbursements.[7] Disbursements are provided for in r 14.12 of the High Court Rules 2016 (the Rules), which states:[8]
[7]McGuire v Secretary for Justice [2018] NZSC 116; [2019] 1 NZLR 335 at [55]–[59] and [86]–[88]; and Attorney‑General v Taylor [2019] NZSC 18 at [7].
[8]Emphasis added.
14.12 Disbursements
(1) In this rule,—
disbursement, in relation to a proceeding,—
(a)means 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; and
(b) includes—
(i) fees of court for the proceeding:
(ii)expenses of serving documents for the purposes of the proceeding:
(iii)expenses of photocopying documents required by these rules or by a direction of the court:
(iv)expenses of conducting a conference by telephone or video link; but
(c) does not include counsel’s fee.
(2)A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—
(a) of a class that is either—
(i)approved by the court for the purposes of the proceeding; or
(ii) specified in paragraph (b) of subclause (1); and
(b) specific to the conduct of the proceeding; and
(c) reasonably necessary for the conduct of the proceeding; and
(d) reasonable in amount.
(3)Despite subclause (2), a disbursement may be disallowed or reduced if it is disproportionate in the circumstances of the proceeding.
(4)A Judge or an Associate Judge may direct a Registrar to exercise the powers of the court under subclause (2) or (3).
As can be seen, a disbursement must be awarded to the extent that it meets the criteria at r 14.12(2)(a)-(d). A disbursement may however be disallowed or reduced if it is disproportionate in the circumstances of the proceeding.[9]
[9]High Court Rules 2016, r 14.12(3).
In the present case, it appears that the Judge has not appreciated that a disbursement award must be made if the r 14.12(2) criteria are satisfied and has not assessed the merits of Mr Siemer’s application by express reference to them. In light of this, we consider it is appropriate that we revisit the assessment afresh and now turn to do so.
Analysis
Mr Siemer’s travel expenses do not fall within the scope of the specific examples of disbursements included in r 14.12(1)(b). Accordingly, to assess whether Mr Siemer’s claim qualifies as a disbursement, we are required to consider whether the disbursement claimed is:[10]
(a)an expense incurred for the purposes of the proceeding that would ordinarily be charged for separately from the legal professional services in a solicitor’s bill of costs;
(b)of a class that should be approved by the Court for the purposes of the proceeding;
(c)specific to the conduct to the proceeding;
(d)reasonably necessary to the conduct of the proceeding; and
(e)reasonable in amount.
[10]Rule 14.12(1)(a) and (2)(a)–(d).
First, we are satisfied that the disbursement claim is reasonable in amount. We are also satisfied that Mr Siemer’s travel expenses were incurred for the purposes of the proceeding and that ordinarily travel expenses are charged separately from the legal professional services in a solicitor’s bill. We also accept that the expenses were specific and reasonably necessary to the conduct of the proceeding.
The remaining issue is whether Mr Siemer’s travel expenses fall within a class of disbursements that should be approved by the Court. This as a matter of judgment that must be exercised in the overall circumstances of a particular case. The classes of disbursements included in r 14.12(1)(b) will provide some guidance, as will the types of disbursements that have been allowed by the courts in previous cases. We also note that, as Clifford J emphasised in Knight v Veterinary Council of NZ, in Re Collier (A Bankrupt) this Court applied a “reasonably liberal approach” to the assessment and classification of such disbursements (in the context of the earlier rules and self-represented litigants).[11] In our view that remains an appropriate approach under the Rules.
[11]Knight v Veterinary Council of NZ HC Wellington CIV-2007-485-1300, 31 July 2009, citing Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA). Re Collier (A Bankrupt) was decided under previous High Court Rules: Judicature Act 1908, sch 2, r 46. See also Sandilands v New Zealand Law Society [2017] NZHC 2640; and Denize v Attorney-General [2020] NZHC 3215.
Travel expenses for out-of-town counsel are available as a qualifying disbursement, provided that there is need to retain such counsel reasonable and necessary for the conduct of the proceeding.[12] We are not aware of any cases, however, where travel costs for local counsel have been awarded as a disbursement.
[12]See Buis v Accident Compensation Corporation (2010) 19 PRNZ 585 (HC) at [25], cited in Waipapa Bay Protection Society Inc v Ariki Tahi Sugarloaf Wharf Ltd [2024] NZHC 192 at [25]; and Mary Moodie Family Trust Board v Attorney-General [2016] NZHC 755 at [13]. See also Russell v Taxation Review Authority (2000) 14 PRNZ 515 (HC) at [24]–[25]; Ainsworth & Collinson Ltd v Edmunds (2009) 19 PRNZ 565 (HC) at [5]–[9]; Air New Zealand Ltd v Commerce Commission (2005) 17 PRNZ 786 (HC) at [84]–[87].
There also appears to be limited authority addressing claims for local travel costs by lay litigants. Davidson J in Prescott v The District Court at North Shore, rejected a lay litigant’s claim to vehicle and parking costs because, in his view, they did not meet the requirements in r 14.12.[13] The Judge observed that while modest in amount, they could not be described as specific to the conduct of the proceeding.[14] But we do not think he was making a statement of general application. Indeed, if that were so, then travel costs of out-of-town counsel would be disqualified for the same reason. Provided the local travel costs are specific and necessary to the conduct of the proceedings and are reasonable, we can see no reason in principle for their automatic exclusion.
[13]Prescott v District Court at North Shore [2018] NZHC 485.
[14]At [34].
Lay litigants have been awarded travel disbursements in several cases. In Lavery v Lavery, Mr Lavery, the successful appellant, claimed parking at an average of $4.00 in respect of 20 trips from Wainuiomata to the High Court at Wellington.[15] Thomas J found that there was no objection in principle to a claim for parking costs but found that 20 trips to the Court for filing an appeal against a Family Court decision was disproportionate. She did, however, award the parking costs for 10 trips to the Court, which she stated was “generous … in the circumstances”.[16]
[15]Lavery v Lavery [2019] NZHC 502.
[16]At [25].
Similarly, in Denize v Attorney-General, the High Court awarded a lay litigant a disbursement of $502.38 for travel and parking costs incurred in obtaining legal advice and $530.09 for service and binding fees and travel costs incurred in filing documents in the High Court.[17] In Harrison v Keough, the High Court granted disbursements of $970.20 for travel by a lay litigant between Auckland and Wellington for the purposes of attending the court hearing.[18]
[17]Denize v Attorney-General, above n 11, at [6].
[18]Harrison v Keough [2015] NZHC 3320.
Our assessment is that Mr Siemer should be awarded the claimed travel disbursement. We acknowledge that this is not the ordinary situation where costs (or disbursements) simply follow the event. Here, Mr Siemer’s formal proof application was not heard and determined at the relevant hearing but had to be adjourned. It is well established, however, that the Court has jurisdiction to order a party whose default causes a fixture to be vacated to pay “wasted” costs and disbursements.[19] As the learned authors of McGechan on Procedure explain, the rationale for this is twofold:[20]
(a) To compensate the other party or parties not in default who have wasted costs (including disbursements and the fees of expert witnesses).
(b) To impose a sanction on the defaulting party, in an effort to avoid future wastage of costs and of judicial and court resources, and inconvenience to other parties awaiting fixtures in the court[.]
[19]See Jeffreys v Morgenstern [2013] NZHC 1361 at [31]; and Highley Ltd v Vodafone New Zealand Ltd HC Auckland CIV-2006-404-2870, 6 September 2011 at [11].
[20]Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HRPt14.16A].
Both of those rationales apply here. The travel expenses were necessarily and reasonably incurred by Mr Siemer in attending the scheduled formal proof hearing, at which he intended to represent himself. The formal hearing did not proceed, however, because after the hearing date had been allocated, Mr Luke filed a belated application for leave to file a statement of defence which was set down for hearing at the same time. Mr Luke’s application sought an indulgence from the Court and ultimately resulted in Mr Siemer’s formal proof application having to be adjourned. Mr Siemer, as the party who was not in default, suffered wasted costs as a result. In our view it is appropriate in such circumstances that Mr Siemer should be reimbursed for the wasted expenses he incurred in travelling to Court.
In conclusion, while we understand the Judge’s desire to be fair to Mr Luke, we are unable to agree that in the circumstances the reasons given justified declining Mr Siemer’s application for a travel disbursement. Mr Luke was seeking an indulgence from the Court. Mr Siemer had a reasonable expectation that his formal proof application would be heard as scheduled. Finally, as Mr Siemer noted, his claim to the travel disbursement was not opposed. There was no challenge then to either the need for, or reasonableness of, the disbursement claimed. In those circumstances, we are satisfied that Mr Siemer is entitled to his travel disbursement.
Result
The appeal is allowed.
The second respondent must pay the appellant the sum of $70.56 for disbursements incurred in the High Court.
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