Wallace v Commissioner of Police
[2021] NZHC 3315
•6 December 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
CIV-2014-443-66
[2021] NZHC 3315
BETWEEN RAEWYN WALLACE
Plaintiff
AND
COMMISSIONER OF POLICE
First Defendant
AND
ATTORNEY-GENERAL
Second Defendant
On the papers Counsel:
G E Minchin for Plaintiff
P J Gunn, G M Taylor and N J Ellis for Defendants
Judgment:
6 December 2021
COSTS JUDGMENT OF ELLIS J
[1] Earlier this year I released a lengthy judgment in this matter.1 At the end of that judgment I said:
[649] I have not heard from the parties on costs. I am not certain whether Mrs Wallace is legally aided or, if she is, what effect that might have on the issue.
[650] But putting that point to one side, my own preliminary inclination would be to award costs to Mrs Wallace. I say that because she has wholly succeeded on two causes of action and she has succeeded—against opposition from the Crown—on almost all the novel and important legal issues raised by her claims.
[651] And while the Crown succeeded in its defence of the substantive s 8 claim, it is relevant to note that that claim was not precluded by the various other inquiries into Steven’s death. On the contrary—as Mrs Wallace’s
1 Wallace v Attorney-General [2021] NZHC 1963.
WALLACE v ATTORNEY-GENERAL [2021] NZHC 3315 [6 December 2021]
success on the investigative aspect of s 8 shows—none of those inquiries met the requirements of s 8; it was important that this aspect of her claim be heard, regardless of the outcome.
[652] As I have said, however, these are only my preliminary views and the legal aid position is also unknown.
[653] I would therefore be grateful if counsel could confer on these matters and attempt to arrive at an agreed position. If that is not possible, then memoranda are to be filed within 15 working days of the date of this judgment.
[654] I also note that Brown J also left costs in the two matters dealt with by him in 2016 (the strike out and an application for security for costs) to be dealt with as part of the costs in the substantive matter. Any discussions between counsel (and any memoranda filed) should also address the question of those costs.
[2] Regrettably, there has been no such agreement; memoranda have been filed. The disputes are about the extent of Mrs Wallace’s success (and what impact it should have on any costs award), individual items in the 2B costs calculation, and some of the claimed disbursements. It is fair to say that this has not proved to be a paradigm example of the smooth operation of the costs rules, the central aim of which is that costs determinations be predictable and expeditious (and to avoid disputes of this nature).
Discussion
The relevant fee arrangement
[3] It transpires that Mrs Wallace was not legally aided.2 Rather, Mr Minchin says he took instructions on a “results” basis. He submits this is the proper course of action in order to ventilate public law matters, because the Court then determines costs.
[4]In response, Mr Gunn submitted:
An award of costs should not exceed the costs incurred by the party claiming costs. The plaintiff has not provided evidence of the costs actually incurred in connection with this proceeding, such as the provision of invoices, and instead counsel for the plaintiff seeks costs on a “results basis”. Counsel for the defendant submits that the plaintiff should provide further information to the Court as to the extent of costs incurred (or likely to be incurred) in connection with this proceeding before a costs award is made.
2 It appears she was very minimally aided for specific tasks undertaken in 2012 and 2013, but not subsequently.
[5] I disagree. The Supreme Court has made it clear that an invoice is not required in order to establish “costs incurred” in terms of r 14.2(f).3 There can be no doubt at all that Mr Minchin has expended a very considerable amount of his professional time on Mrs Wallace’s case. And while it would not be right to categorise Mr Minchin’s arrangement as a strictly “pro bono” one, there are analogies to be drawn. Although there is a paucity of authority as to the operation of the costs rules in such cases, I note that in Karmarkar v Manda the Court of Appeal differed from the approach taken in the High Court (where costs had been refused because counsel had acted pro bono), saying:4
[8] Mr Manda was represented by counsel on this on-the-papers hearing before us. As he did below, Mr Keall advised that he was prepared to act without fee but sought costs on the basis that he would invoice his client for the costs and they would be paid to him. Contrary to the view taken by van Bohemen J, we do not consider that this breaches the principle on awarding costs that exceed those actually incurred. Accordingly, the respondent is entitled to costs for a standard application on a band A basis.
[6] Similarly, in Marino v Chief Executive of the Department of Corrections the Court of Appeal said:5
[3] … We decline the respondent’s invitation to limit the award to costs actually paid by Mr Marino; that would be to exploit his counsel’s willingness to undertake work on a pro bono or discounted basis.
Who was the successful party?
[7] It is trite that costs are at the discretion of the Court, albeit that this discretion is not unfettered. The fundamental principle is that the unsuccessful party should pay costs to the successful party.6
[8] In terms of determining which party has succeeded, the focus should not be on the extent to which each step succeeded or failed, but rather a consideration of which
3 McGuire v Secretary for Justice [2018] NZSC 116; [2019] 1 NZLR 335.
4 Karmarkar v Manda [2019] NZCA 130 at [8] (footnote omitted).
5 Marino v Chief Executive of the Department of Corrections [2017] NZCA 2. And see also (in an Employment Court context) the more general discussion by Chief Judge Inglis in Innovative Landscapes (2015) Ltd v Popkin [2020] NZEmpC 96.
6 High Court Rules 2016, r 14.2(a).
party won the principal contests of law and fact, together with an appraisal of the end result.7 The starting point is that “success on more limited terms is still success”.8
[9] To the extent fortification is required or my initial, and present, view that Mrs Wallace should properly be viewed as the successful party here, account can also be taken of the wider New Zealand Bill of Rights Act 1990 (NZBORA) context. The bulk of her claim was squarely founded on the NZBORA, and she succeeded in breaking some new and potentially important jurisprudential ground in that regard.9 Again, it is trite that the usual costs rules should not be applied in a way that discourages litigants from bringing such claims; there is a positive obligation on the Courts to “affirm, protect and promote” the provisions of that enactment; that duty cannot be discharged by the application of “usual” costs rules.10 So given that Mrs Wallace’s claim undoubtedly engaged fundamental human rights, I would, if necessary, be inclined to alter the usual exercise of a costs discretion in her favour.11 For completeness, I record my view that the absence of a damages award here does not militate against that conclusion.
[10]I therefore proceed on the basis that Mrs Wallace was the successful party.
[11] I also proceed on the basis that the appropriate costs categorisation is 2B. I did not understand either party to argue for a different band or classification.
Are there grounds for a reduction in costs in terms of r 14.7?
[12] Notwithstanding my conclusion that the Mrs Wallace was, for costs purposes, successful, it remains open to the Crown to argue for a reduction in the usual costs that would follow that event, under r 14.7(d). Rule 14(d) contemplates a reduction where the party who has succeeded overall has nonetheless “failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs”.
7 Lawrence v Glynbrook 2001 Ltd [2015] NZHC 1005.
8 Weaver v Auckland Council [2017] NZCA 330, (2017) PRNZ 379 at [26].
9 The fact that she may have been considerably assisted in that endeavour both by the Crown itself and by the Court does not undermine the general principle.
10 Attorney General v Udompun [2005] 3 NZLR 204 (CA) at [223].
11 At [224]. See also Vincent v New Zealand Parole Board [2021] NZHC 977.
[13] Here the Crown says that Mrs Wallace ought only to be awarded 50 per cent of costs because she failed on her central right to life claim: her claim that her son Steven had been unlawfully killed by Police on 30 April 2000 and/or that his death had been the result of systemic failings.
[14] The difficulty with that proposition, however, is that which was identified by me at [651] of my substantive judgment (set out above). Her success on the “investigative” aspect of the right to life claim meant that there had, in fact, been no rights compliant investigation to Steven’s death (for the reasons set out in my judgment). So while I necessarily accept that the further inquiry into the circumstances of Steven’s death did occupy a good part of—and so did prolong—the hearing, it was important that this aspect of her claim be fully ventilated and heard, regardless of the outcome.
[15] Nor do I accept that there should be a reduction in standard 2B costs to reflect the assistance provided by the Crown to Mrs Wallace in this matter. While I acknowledge the assistance (and the Crown’s assistance to the Court), that is as it should be. The Attorney-General is constitutionally responsible for ensuring that the Crown’s litigation is properly conducted and that “all civil litigation is conducted to a standard of fairness and integrity as befits the Crown.”12 In a novel and important NZBORA claim of the kind advanced by an individual such as Mrs Wallace, who has few resources of her own, it was right for the Crown to give the assistance it did. For the record, I am grateful for it.
[16] But for present purposes, the short point is that I decline to reduce the standard 2B costs otherwise payable to Mrs Wallace by reference to r 14.7.
What is the proper quantum of 2B costs here?
[17] As noted earlier, the parties cannot agree about what a 2B costs award looks like. Mr Minchin’s calculations yield a total of $96,795. Mr Gunn’s calculations (absent a 50 per cent reduction) yield $78,296.40. It seems simplest to set out and resolve the differences in tabular form. The daily recovery rate used is $2,390.
12 Attorney-General’s Values for Crown Civil Litigation, 31 July 2013.
Mrs Wallace Crown
Resolution
Result
Commencement of proceeding
3 days = $7,170
3 days = $7,170
N/A
$7,170
Memoranda/CMC (various)
Joint memos x 12 (4.8)
Plaintiff memos x 7 (3)
CMC x 3 (1.2)
= 9 = $21,510
Preparation for first CMC (0.4) Filing memo for 1st CMC (0.4)
Appearance at 1st CMC (0.3)
Filing memo for further CMCs (3)
4.1 = $9,799
A number of memoranda filed for callovers etc. not accounted for in the Crown’s calculation, but joint memoranda should be discounted.
Mr Minchin’s records not very clear.
$15,000
(broad brush estimate)
Strike Out / Security for Costs Application: [2016] NZHC
1338.
Filing opposition (0.6)
Submissions (0.6)
Appearance (1)
= 2.2 = $5,258
Filing opposition (0.6)
Submissions (1.5)
Appearance (1)
= 3.1 = $7,409
Mrs Wallace has underclaimed the time allowed for preparing
submissions. Crown calculation is correct.
$7,409
Application for further particular discovery: [2020]
NHZC 326.
Claims 50 per cent costs:
Filing (0.6)
Bundle (0.6)
Submissions (0.6)
Appearance (0.5) 23/2 = 1.1 = $2,629
Costs should lie where they fall
Plaintiff had limited success (two out of eight categories of documents ordered to be discovered). 50 per cent appropriate.
$2,629
Discovery
Admission of facts (0.8)
List of docs (2.5) Inspection of docs (1.5)
= 4.8 = $11,472
Admission of facts (0.8)
List of docs (2.5) Inspection of docs (1.5)
= 4.8 = $11,472
N/A
$11,472
Trial
Preparing witness briefs (5.75) Preparing for hearing sole/principal counsel (5.75)
Trial (5.5)
= 17 = $40,630
Preparing witness briefs (5.38) Preparing for hearing sole/principal counsel (5.38)
Trial (5.5)
= 16.26 =
$38,861.40Crown has halved allowance for the last (sixth) hearing day. Full day to be allowed.
$40,630
Other steps (various)
Other steps:
subs in response to witness challenges, and further subs as
requested (3) application private
Other steps: Unspecified (1.5)
= $3,585
2.0 to take account of further submissions and the application referred to by Mr Minchin
$4,780
criminal prosecution NOE (0.4)
= 3.4 = $8,126
TOTAL $96,795.00
$78,296.40
$89,090
[18]It follows that the Crown is to pay costs to Mrs Wallace in the sum of $89,090.
Disbursements
[19] In his submissions in support of the disbursements claimed, Mr Minchin advised:
In the attached schedule of costs and disbursement, it will be seen that a number of disbursements are listed but not claimed. This is because over the length of this very protracted proceeding, counsel has had a terminal malfunction of a laptop and no longer has chambers. Some costs, such as those for printing bench books of NOE, were incurred many years ago, so as to be out of the way, but were obsoleted by the electronic document regime. While counsel is fairly certain he flew to Wellington for both interlocutories and did not stay under a bridge during the trial, receipts have eluded him. It is submitted that when considering disbursements in the round, the Court that disbursement were incurred but cannot be claimed for.
[20]The attached schedule was as expressed as follows:
Air fares x 3:
Strikeout/Security No invoice attached Further discovery No invoice attached Trial Invoice attached 553.50
Accommodation 7 nights
Printing – bench books of transcripts No invoice found P Hikaka invoices attached
Office support Wellington invoice attached Animation Sam Prebble invoice attached $820
[21] Mr Minchin has provided an invoice for his trial flights ($553.50), but I have been unable to locate the other invoice (Sam Prebble) said to be attached.
[22]Other invoices separately supplied by Mr Minchin are as follows:
(a)an invoice for office support services from Inzone Ltd during the week of trial for $1,725; and
(b)invoices relating to the plaintiff’s witness/private investigator, Mr Hikaka:
(i)for services rendered between March 2017 and October 2020 totalling $85,359.02 (comprising 473 hours “investigation” time at $135 + GST per hour, mileage and travel time); and
(ii)for disbursements totalling $3,132.40, namely:
· typing services from Digitype Global Transcription Services, dated between 31 October 2017 and 1 April 2019 totalling $563.52;
· one night’s accommodation at the Sofitel in Wellington (on a date during the 2020 trial) totalling $758.98;
· several nights’ accommodation in a Hawera motel during May 2018 and August 2018 totalling $540;
· Mr Hikaka’s flights between Tauranga and Wellington during the trial totalling $473.60;
· two payments made by Mr Hikaka to Births Deaths and Marriages totalling $76;
· courier invoices from January and March 2018 for $17.50;
· DVD copying and software setup for $195.50,13 dated 29 March 2019;
· food and drink during the trial totalling $252.30; and
13 The full amount on the attached receipt is $263.00, but there are handwritten notes that conclude a total of $195.50 instead. This is also the amount reflected in Mr Hikaka’s invoice to Mr Minchin; it is the amount I will adopt.
· services from Snapshot Limited in Hamilton for $255.
[23] Putting to one side the lack of verification for a number of claimed items (a matter I return to later), the Crown takes specific issue with the necessity and reasonableness of Mr Hikaka’s fees and of the “Inzone NZ” costs, which relate to an animation of the shooting that Mr Minchin arranged during the trial. It is necessary therefore to address each in turn.
Mr Hikaka
[24] As far as Mr Hikaka’s fees and costs are concerned, the Crown says that his evidence—the point of which was to critique the Police investigation into Steven’s death—was only marginally relevant to the claim. Its ultimate relevance was limited to:
(a)commenting on whether a Police report comparing David Toa and Steven Wallace complied with good Police practice (and whether there were physical similarities between the two men);
(b)his opinions that “[a]t no time were Constables Abbott and Dombroski treated as suspects” and that Constable Abbott was not properly interviewed by Police; and
(c)his opinion about what the “PostBank Moturoa” incident said about Constable Abbott (that “in the heat of the moment Constable Abbott makes bad decisions”).
[25] As Mr Gunn notes, I rejected all of these contentions. Mr Hikaka’s evidence was, in fact, not referred to in my judgment. And as for reasonableness, the Crown says that Mr Hikaka’s total fees and disbursements ($88,491.42) are simply not reasonable considering the ultimate length and content of his brief of evidence (and its lack of relevance to the proceeding).
[26] Mr Minchin responds by pointing out that there was a finding of an appearance of partiality by Police in handling the Mrs Dombroski matter, saying that Mr Hikaka’s
interview of Fiona Wallis was central to this issue. He also says Mr Hikaka’s assistance played a very important role in the (successful) investigation cause of action, given that this was a complex case with questions of Police practice and policy at its heart.
[27] While I agree with the Crown that Mr Hikaka’s evidence was, of very little assistance at trial, I am not sure that the issue can be resolved quite so simply. Witnesses’ expenses and fees may be recoverable notwithstanding that the Court found it unnecessary to deal with the issue on which their evidence was called, or even if the witness was not ultimately called at all.14 The question will always be whether they were necessarily incurred, and are reasonable.
[28] As for necessity, I am inclined to view Mr Hikaka’s work through two lenses. The first is the work of a proposed expert witness, as already discussed. The second is as an assistant to Mr Minchin who, so far as I know, otherwise undertook Mrs Wallace’s case on his own. It seems relevant in that regard that if Mr Minchin had had a junior lawyer helping him, I would have certified for second counsel. And my sense is that that was the role played by Mr Hikaka here, at least in part. So I am prepared to proceed on the basis that some of Mr Hikaka’s costs were necessarily incurred. Equally, however, I suspect (form perusing the relevant timesheets) that there were numerous rabbit holes that were unnecessarily gone down by Mr Hikaka that might have been avoided with firmer and more focused instructions.
[29] The reasonableness of the actual costs is a different matter. The means by which the Court can assess that, in the absence of (yet) further evidence is unclear. But in a case of the present kind, I am loath to embark upon the kind of (costly) forensic exercise suggested in Auckland Waterfront Development Agency Ltd v Mobil Oil New Zealand Limited.15 All I can do is try and make my own assessment as sensibly and robustly as possible.
14 See the discussion in McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR14.12.01(4)]. See also Beach Road Preservation Soc Inc v Whangarei District Council (2001) 16 PRNZ 13 (HC) at [18].
15 Auckland Waterfront Development Agency Ltd v Mobil Oil New Zealand Limited [2016] NZHC 470 at [44].
[30] As noted previously, Mr Hikaka’s bill accounts for some 473 hours of his time (not including travelling). That equates to around 12 weeks of full-time work which, given the very length history of the matter and the voluminous quantity of documents is perhaps not as startling as it first appears. Mr Hikaka’s charge out rate of $135 per hour (without GST) seems a little high, but perhaps not excessive. I also note that his 2017 engagement letter states the basis on which his fees would be charged (as opposed to calculated) is: “A liability contingent on costs awarded by the Court”. What precisely that means is unclear to me, but it may be that Mr Hikaka has agreed to accept as payment whatever amount is deemed reasonable as a result of the process in which I am presently engaged. I hope that is so.
[31] I have, of course, already found that Mrs Wallace is entitled to receive approximately $90,000 towards her legal costs. Despite my preparedness to attach to Mr Hikaka’s work more necessity and credence by viewing him as assisting Mr Minchin more generally, it would be wrong in principle if his fees were approved at a similar level. Rather, I am prepared to approve approximately half that amount:
$40,000 (GST inclusive) together with his claimed disbursements of $3,132.40.
Animation
[32] The Crown says Mrs Wallace is not entitled to claim the “Inzone NZ” fees as a disbursement because the steps taken to produce an animation should not be recoverable and make the claimed amount excessive. The Crown rightly says that the prospect of an animation was raised for the first time during the hearing and that Mr Minchin claimed that no expense would be incurred as a result. The Crown says that it should not be ordered to pay this as a disbursement because it is “probably inadmissible as evidence” and was only marginally relevant to a cause of action in which Mrs Wallace was unsuccessful. I disallow this aspect of the claim.
Unverified amounts
[33] Although I entirely accept that Mr Minchin resides in Auckland and so will have reasonably and necessarily incurred the cost of flights and hotels, these amounts require verification. The cost of his flights during the trial ($553.50, for which an invoice has been provided) is approved.
[34] To the extent he is able to provide invoices or some other form of objective proof (bank statement or the like), he should provide these to the Registrar of this Court for approval. I include in this the provision of copies of the invoices said to have been attached to his submissions but which I have been unable to locate.
[35] I also note that Mr Minchin has not claimed any filing fees, nor the hearing fee as disbursements. They may have been waived. If not, they are amounts he is plainly entitled to recover and, if he is able to calculate these (and preferably agree them with the Crown), they can also be referred to the Registrar for approval.
Result
[36]For the reasons I have given, the Crown is to pay to Mrs Wallace:
(a)2B costs in the sum of $89,090;
(b)disbursements totalling $43,685.90;16 and
(c)any further disbursements approved by the Registrar further to my directions at [34] and [35] above.
Rebecca Ellis J
Solicitors:
Thomas & Co, Auckland for Plaintiff Crown Law, Wellington for Defendants
16 This comprises: $43,132.40 for Mr Hikaka (including disbursements) plus the cost of Mr Minchin’s trial flights.
7
0