Xu v District Court at Manukau

[2013] NZHC 2312

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-001861 [2013] NZHC 2312

UNDER  The Judicature Amendment Act 1972

IN THE MATTER             of an application for judicial review

BETWEEN  JIANQIU XU Plaintiff

ANDTHE DISTRICT COURT AT MANUKAU First Defendant

THE QUEEN Second Defendant

Hearing:                   On the papers

Counsel:                  F C Deliu for the Plaintiff

L J Clancy for the First Defendant
P Gunn for the Second Defendant

Judgment:                6 September 2013

COSTS JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Friday 6 September at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

F C Deliu, Barrister, Auckland

L J Clancy, Crown Solicitors, Auckland

P J Gunn, Crown Law, Wellington

XU v THE DISTRICT COURT AT MANUKAU [2013] NZHC 2312 [6 September 2013]

Introduction

[1]      On  12  April  2013  I  delivered  an  oral  judgment  granting  the  plaintiff’s application  for  judicial  review.    In  doing  so  I  quashed  a  decision  of  the  first defendant declining to grant an application by the plaintiff an adjournment of his criminal trial. The plaintiff now seeks costs and disbursements on that application.

Background

[2]      The plaintiff’s trial was listed as a priority standby trial to commence 15

April 2013.   The plaintiff had been assigned counsel (Ms T Spencer) pursuant to criminal legal aid arrangements.   For various reasons, it appears the plaintiff lost trust and confidence in Ms Spencer.  At very short notice, the plaintiff made contact with Mr F Deliu, a barrister sole, with a view to Mr Deliu representing him at trial. That contact was made in the early part of April 2013, leaving Mr Deliu with difficulties both in terms of prior scheduled commitments and the time in which he would need to come up to speed in order to provide the plaintiff with adequate representation.

[3]      Mr Deliu thus sought an adjournment of the trial by an application on 10

April 2013.  The Crown opposed that adjournment by way of memorandum, making particular reference to the important fact that Ms Spencer had yet to be given leave to withdraw.  In response, the parties received a very brief email from a Manukau District Court Case Officer notifying the parties that a Judge had declined the adjournment application.  An urgent application for judicial review of the decision was then filed by Mr Deliu for the plaintiff.

[4]      The District Court decision quite clearly involved a reviewable error by its failure to give reasons.  Both counsel agreed with this observation, and I granted the application for review and quashed the Judge’s decision.   I directed the Manukau District Court  to reconsider the request for adjournment.  Although not relevant to my present determination, I note the application for adjournment was subsequently granted.

Costs application

[5]      The plaintiff now seeks costs on the application for review pursuant to the general principle that costs follow the event.1   In the first instance, costs are sought against the first defendant.   If unsuccessful against the first defendant, costs are sought against the second defendant.

[6]      The plaintiff seeks to distinguish the Court of Appeal’s decision in Coroner’s Court v Newton2 which enunciates the general rule that litigants are precluded from seeking costs awards against decision makers.  Mr Deliu submits that decision was focused on costs against decision makers personally and not against the institution itself as in this case.

[7]      Mr Deliu further submits that if he is unsuccessful in persuading me that Newton is distinguishable, this case meets the high threshold set in Newton for awards of costs against decision makers.   It is to be expected that an experienced judicial officer would know the basic principle of giving reasons for decisions.  This, Mr Deliu submits, is an “inexcusable” error, particularly where a jury trial was only two clear working days away.

[8]      In  the  alternative,  were  I  not  to  make  a  costs  award  against  the  first defendant, Mr Deliu invites me to make a costs award against the second defendant. Mr Deliu responsibly acknowledges that this is not a desirable outcome given the second defendant did not oppose the judicial review application.   However, he submits  it  may  nevertheless  be  necessary  to  award  costs  against  the  second defendant to avoid the wronged party being left out of pocket.

[9]      The first defendant resists the plaintiff’s application for costs, submitting that the  Newton  principle  clearly  extends  beyond  decision  makers  personally  and includes courts themselves.3    The costs application is also resisted by the second defendant.  The second defendant submitted that it was the plaintiff’s decision to file

judicial review proceedings in the High Court, rather than request the District Court

1      High Court Rules, r 14.2(a).

2      Coroner’s Court v Newton (2005) 17 PRNZ 907 (CA).

3      For example see Brown v Maori Appellate Court [2004] 3 NZLR 742 (HC).

to  reconsider  the  question  of  adjournment  once  Ms  Spencer’s  position  as  trial counsel had been clarified.   As to the adjournment application itself, the second defendant  says  that  the  decision  to  grant  the  review  application  and  quash  the District Court’s decision was based entirely on the failure to give reasons, not on the merits of the adjournment which the Crown properly opposed.

Decision

[10]     The usual rule is that costs follow the event.4   Overlaying that is the Court of

Appeal’s decision in Coroner’s Court v Newton, the salient passages of which are:

[44]     In this subject area it is important to keep first principle squarely in mind.   Costs will only be awarded (even in judicial review proceedings) against judicial officers such as Justices or Coroners in the rarest of circumstances when such a judicial officer has done something which calls for strong disapproval.  It is certainly not the practice to grant costs against Justices or a Coroner merely because that person has made a mistake in law. It must be shown that the judicial officer concerned has acted perversely, oppressively or in bad faith.

...

[46]     In short, errors of law will not by themselves support an award of costs; errors of process will normally not support an award of costs: and judicial misconduct in the way in which the hearing is conducted will normally have to be of a particularly egregious kind for costs to be awarded. The question is not whether the applicant is in some sense “deserving” of costs – in a large sense, such a person often will be.  The critical point is that the order for costs is an expression of disapproval of the conduct of the judicial officer in character. There must be a clear basis for such an order.

[11]     Reading those passages in isolation, I accept that it could be interpreted that the use of the words “judicial officer” could suggest that the Court was concerned with costs payable in respect of claims against judicial officers as individuals rather than  costs  payable  in  respect  of  claims  against  judicial  institutions.    However, reading the judgment as a whole, I do not take the Court to be limiting the principle in such a way.  I adopt the recent observations of Lang J in Siemer v District Court at

North Shore5  in response to an identical submission put to him in that case.   Mr

Deliu should have been aware of those observations, since he was counsel in that case and put the same submission to Lang J.

4      High Court Rules, r 14.2(a).

5      Siemer v District Court at North Shore [2013] NZAR 168 (HC) at [12]-[15].

[12]     This case is not one of those rare cases where the judicial officer acted perversely,  oppressively,  or  in  bad  faith.    As  I  made  clear  in  my  substantive judgment, the decision made by the District Court Judge must be seen in the background of a very busy and undoubtedly overloaded District Court.  I therefore decline to make an award of costs against the first defendant.

[13]     I also decline to make an award of costs against the second defendant.   In seeking costs against the second defendant, the plaintiff is attempting to transfer an obligation that would ordinarily fall on the first defendant.   The Court in Newton made it clear that the issue is not whether applicants are, in some sense, deserving of costs.  In many cases they will be.  In a situation where the second defendant did not oppose the review application,  I see no  reason  to  order costs  against  it  simply because costs cannot be ordered against the first defendant.

[14]     As the second defendant has pointed out, it was open to the plaintiff to make a further request to the District Court for an adjournment once Ms Spencer’s role as counsel had been clarified.   The plaintiff instead filed High Court proceedings, in circumstances where his counsel would have known that costs were unlikely to be recovered.

[15]     The plaintiff’s application for costs is dismissed.  Costs are to lie where they

fall.

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Priestley J