[1] This appeal was abandoned by the appellant, but the Attorney-General has sought an award of costs. This judgment deals with the costs application.
[2] The appellant’s notice of appeal was filed on 28 March 2008. It was an appeal against a decision contained in a minute of Ronald Young J declining to order that two judicial review applications commenced by the appellant be heard by a full court of the High Court.
[3] The judicial review applications themselves were to be heard on 5-9 May 2008, so any appeal as to the composition of the High Court bench hearing those applications obviously had to be dealt with urgently. William Young P determined that the appeal should be set down for an urgent hearing at 2.15 pm on Monday 14 April 2008. Counsel for the appellant said he was taken by surprise by that decision, as he had intended to seek “an order staying the hearing on 5-9 May 2008” on the basis that unless such an order was made his appeal would be rendered nugatory.
[4] After the urgent fixture was allocated, the appellant sought an adjournment of the urgent fixture. This prompted a telephone conference presided over by William Young P. The outcome of that was that William Young P issued a minute indicating that the hearing time on 14 April could be used either for the hearing of the appeal or the hearing of the application for a stay: this was a matter of choice for the appellant. However, the appellant notified the Court on 10 April 2008 that he withdrew the appeal and subsequently filed a notice of abandonment of the appeal on 18 April 2008.
[5] On 27 May 2008 counsel for the Attorney-General sought costs. He set out an index of his pleadings file relating to the proposed appeal showing a number of different matters which he had had to deal with. He said that the costs incurred by the Attorney-General in preparing for the appeal were $4,001.30 excluding GST, incurred over the period 4-10 April 2008. He sought an award of costs “which will make a substantial contribution, as the Court considers just and reasonable, towards [the Attorney-General’s] actual legal costs”. He pointed out that the appeal by the appellant and the appellant’s stay application were withdrawn within a week of being filed, and that the costs incurred by the Attorney-General had been unnecessary and avoidable.
[6] Counsel for the appellant opposed any order for costs being made. He filed a memorandum on 3 September 2008 in which he set out the history of the matter and argued that it was not tenable for the Attorney-General to claim preparation time for an appeal hearing between 3 April 2008 (when the notice of appeal was served) and 8 April 2008 (when notice of the urgent fixture was given by this Court). He said that for at least part of this time the parties were awaiting the outcome of an application made in the High Court for a “stay of the High Court hearing”. He said that the allocation of an urgent fixture was not at the appellant’s request, and so the appellant’s actions were not the proximate cause of that urgent fixture being granted.
[7] Counsel for the Attorney-General, Mr Hancock responded by memorandum on 5 September 2008. In brief, he argued that the appeal itself was insubstantial and without merit, and that by filing the appeal the appellant had risked losing the High Court fixture which had been granted six months before in respect of a proceeding which had been commenced over 18 months before. He said the allocation of an urgent fixture in this Court had required the appellant to make good the threat its appeal posed to the High Court fixture and that this should have been anticipated by the appellant. He said there was no excuse for the appellant being unprepared for the urgent hearing of the appeal.
[8] Mr Hancock said that the subsequent High Court proceedings were dealt with by Ronald Young J in a manner which illustrated the lack of any merit in the request for a full court and he emphasised in particular the Judge’s finding that the appellant did not have standing to bring the High Court proceedings in the first place. He argued that, in view of the unusual and unsatisfactory circumstances of the appeal, the Attorney-General sought solicitor-client costs rather than a contribution to costs.
[9] O’Regan J issued a minute indicating that the Court would deal with the initial application (for a contribution to costs), not the modified application made in the reply submission of the Attorney-General. Both parties agreed to the costs issue being dealt with on the papers.
[10] We agree with counsel for the Attorney-General that the appeal was misguided and without merit. Given that it placed in jeopardy a fixture which had been set some months before in the High Court, counsel for the appellant should have anticipated that this Court would seek to deal with the appeal urgently so as not to prejudice that fixture. We do not accept that counsel for the appellant had any reason to feel “caught out” by the allocation of an urgent fixture. The attempt to “stay” the High Court hearing was disruptive of the High Court process and suffered from the same lack of merit as the appeal itself. This obviously caused considerable extra unnecessary work for counsel for the Attorney-General for which an award of costs is appropriate.
[11] We do not propose to analyse in detail the components of the costs of $4,000 said to have been incurred by Crown Law in relation to the appeal and the application for stay. Certainly the figure seems high but the application we are dealing with is for an award of costs which amounts to a fair contribution, and we are satisfied that an award of $750 is appropriate in all the circumstances. That reflects the inconvenience caused by what were ill-considered and misguided actions on the part of the appellant and provide a degree of compensation to the Attorney-General for the unnecessary work which his counsel had to undertake.

Solicitors:
Crown Law Office, Wellington for Respondent

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