Van Essen v Attorney-General - [2013] NZHC 2016

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2010-412-000802 [2013] NZHC 2016

BETWEEN BRUCE BRENDON VAN ESSEN Plaintiff

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND
First Defendant

PETER GIBBONS Fifth Defendant

CIV2010-412-000803

BETWEEN JASON PATTERSON Plaintiff

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND
First Defendant

GRAHAM SCOTT Fifth Defendant

Hearing: (On Papers)

Counsel: M Starling and K J McCoy for Plaintiffs
FRJ Sinclair and P D Marshall for First Defendant
D P Robinson for Fifth Defendants

Judgment: 9 August 2013

COSTS JUDGMENT OF WHATA J

[1] In my judgment of 30 April 20131 I granted declarations of breach of the right to be free from unreasonable search and seizure under s 21 of the New Zealand
Bill of Rights Act 1990 (NZBORA). I also made an award of $10,000 damages

1 Van Essen v The Attorney-General of New Zealand [2013] NZHC 917.

VAN ESSEN v THE ATTORNEY-GENERAL OF NEW ZEALAND [2013] NZHC 2016 [9 August 2013]

payable to Mr Van Essen for the breach. The background to this was that warrants obtained to search the properties of Mr Van Essen and Mr Patterson were unlawful and unreasonable. I considered that the circumstances of the breach in relation to Mr Van Essen were particularly aggravating involving an actual and ostensible conflict of interest as between the Police Officer who obtained the warrant and the person seeking the warrant, his father-in-law.

[2] In my judgment I recorded that:

[128] On the question of costs I am minded to grant indemnity costs in favour of the plaintiffs against the first defendant for the following reasons:

(a) The police appeared to act without the requisite independence;

(b) The police acted unlawfully and unreasonably in breach of a fundamental right;

(c) The plaintiffs were entitled to come to this Court to vindicate their rights and to examine whether the police acted in breach of every constable’s duty to act “without favour or affection, malice or ill- will”.

[129] I temper this analysis however because the first defendant has throughout taken a careful approach to the conduct of its case, making appropriate concessions, including that declarations could properly be made. It also responsibly and in a moderate way successfully defended the allegations of bad faith.

[130] As to the fifth defendants, they have successfully defended the claims against them. Any costs claimed by them also remain to be resolved. As I foreshadowed above at [119], I want full submissions on indemnification from the first defendant if that is sought and opposed.

[3] The fifth defendants now seek indemnification from the Attorney-General and/or from the plaintiffs. The plaintiffs seek indemnification from the first defendant. The first defendant denies that it is liable to indemnify any of the parties.

The Claims

Fifth Defendants

[4] The fifth defendants claim actual costs of $80,053.36 or scale costs of

$85,259 plus disbursements. They say they are entitled to:

(a) Indemnification from the Attorney-General based on the operation of s 38 of the Police Act 1958 or because they at all times acted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Van Essen v Attorney-General

Details

AGLC: Van Essen v Attorney-General [2013] NZHC 2016
Case: [2013] NZHC 2016
Decision Date: 9 August 2013

CaseChat Overview and Summary

The case involves two plaintiffs, Bruce Brendon Van Essen and Jason Patterson, who are seeking compensation and declarations for breaches of their rights under the New Zealand Bill of Rights Act 1990. The defendants include the Attorney-General of New Zealand and two individuals who assisted the police in executing search warrants. The court was required to decide several issues, including whether indemnity costs were appropriate, and if so, who should bear the costs. The key legal issues were whether the plaintiffs were entitled to indemnity costs under the New Zealand Bill of Rights Act 1990 and the High Court Rules, and if so, who should bear those costs.

The court granted indemnity costs to the fifth defendants against the Attorney-General, finding that they were acting as agents for the police at the time of the searches. The court rejected the Attorney-General's argument that the fifth defendants should not be indemnified as they were not part of the executive government. The court found that the fifth defendants were entitled to indemnification under section 38 of the Police Act, which provides that any warrant, order, or other process directed to any non-commissioned officer or constable may be executed and enforced by any other member of the Police or his assistants. The court also found that the fifth defendants were entitled to indemnification as they were acting as agents for the police at the time of the searches. The court declined to make an order of indemnity costs against the plaintiffs in favour of the fifth defendants, finding that costs should lie where they fall as between the plaintiffs and the fifth defendants.

The court granted indemnity costs to the plaintiffs against the Attorney-General, but reduced the amount by 20% to reflect the lack of focus in relation to bad faith and the consequences of that for the claims based in tort. The court found that an award of indemnity costs was necessary for the purpose of fully vindicating the plaintiffs' rights, but that a more modest award would dilute the remedy for the breach. The court also found that the Attorney-General's conduct of the case was exemplary, but that the failure to manage the conflict of interest left an unfortunate odour. The court concluded that the indemnity costs in favour of the plaintiffs remained appropriate, reduced however, by 20% to reflect the lack of focus in relation to bad faith and the consequences of that for the claims based in tort.

The final orders of the court were that there shall be orders granting indemnity costs (including reasonable disbursements) in favour of the fifth defendants against the Attorney-General, and granting indemnity costs (including reasonable disbursements) in favour of the plaintiffs against the Attorney-General, less 20%. The parties were to agree quantum.

Orders