So v Drumm

[2024] NZHC 719

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2211

[2024] NZHC 719

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review of a decision of the headmaster to remove the applicant from the roll of Mt Albert Grammar School

BETWEEN

SO by his Litigation Guardian, his mother Applicant

AND

PATRICK DRUMM and JOANNE MAREE WILLIAMS

Respondents

Hearing:	On the papers
Appearances:	R Cullen, self-represented applicant P Robertson for the Respondents
Judgment:	3 April 2024

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 3 April 2024 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Heaney & Partners, Auckland Copies to: R Cullen; and

Litigation Guardian

SO v DRUMM [2024] NZHC 719 [3 April 2024]

[1]                  This is an application for costs by the respondent, Patrick Drumm, the principal of Mount Albert Grammar School (the school).

[2]                 In my judgment SO v Drumm1 I refused the application by Rhys Cullen to be appointed litigation guardian of a minor SO, who has brought judicial review proceedings against Mr Drumm following Mr Drumm’s decision on 26 June 2023 that SO was to be removed from the school roll that day.

[3]SO’s mother was, and continues to be, SO’s litigation guardian.

[4]                 Mr Drumm opposed Mr Cullen’s application to be appointed litigation guardian and now applies for scale costs on a 2B basis in the sum of $10,277.00.

[5]                 Mr Cullen opposes the application for costs. He says that at the hearing of his application counsel for Mr Drumm observed that if SO was now (or again) living “in zone” for the school he could apply to re-enrol at the school.

[6]                 Mr Cullen says SO has now applied to re-enrol and has returned to the school. SO has, therefore, obtained part of the relief sought in the substantive proceeding. Mr Cullen says the school should have advised SO earlier that he was able to re-enrol. Mr Cullen says that had the school done so, the hearing of his application would have been unnecessary. He, therefore, should not be required to pay costs.

[7]                 Whether or not there was an obligation on the school (which I doubt) to advise a student who was no longer on the school roll that they could apply to re-enrol, the substantive proceeding has not come to an end. There is other relief sought in the substantive proceeding.

[8]                 Mr Drumm was successful in opposing Mr Cullen’s application to be appointed litigation guardian. He is, therefore, entitled to an award of costs under the usual costs principles.

[9]However, I reduce the amount claimed as follows:

1      SO v Drumm [2024] NZHC 354.

(a)A full day is claimed for the hearing. The hearing took marginally more than half a day. It continued, but only briefly, into the lunch adjournment. I, therefore, consider the award should be for half a day.

(b)Counsel for Mr Drumm submits this was a complex matter and accordingly claims for second counsel. I do not accept that it was a complex matter. I refuse the claim for second counsel.

[10]              I award costs in the sum of $7,887 against Rhys Cullen in favour of the respondent Patrick Drumm.

Gordon J