Siemer v District Court at North Shore [2013] NZHC 120 (8 February 2013)

Last Updated: 19 February 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4532 [2012] NZHC 120

BETWEEN JANE SIEMER Plaintiff

AND THE DISTRICT COURT AT NORTH SHORE

First Defendant

AND THE AUCKLAND COUNCIL Second Defendant

Hearing: On the papers

Counsel: F Deliu for Plaintiff

D Soper for First Defendant (abides decision of the Court) P Mulligan for Second Defendant

Judgment: 8 February 2013

JUDGMENT OF LANG J [on costs]

This judgment was delivered by me on 8 February 2013 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

JANE SIEMER V THE DISTRICT COURT AT NORTH SHORE HC AK CIV-2012-404-4532 [8 February 2013]

[1] On 28 November 2012, I granted Ms Siemer’s application for judicial review and quashed two decisions made by Justices of the Peace in a proceeding arising out of an infringement notice issued by the second defendant, the Auckland Council.1

[2] Counsel have been unable to reach agreement regarding the issue of costs. I have therefore received memoranda in relation to that issue, and propose to determine it on the papers.

Issues

[3] Three issues arise for consideration:

(a) The quantum of costs to be awarded; (b) The incidence of costs; and

(c) Should counsel for the Auckland Council be personally liable in respect of costs?

Quantum of costs to be awarded

[4] There is no dispute that, as the successful party, Ms Siemer is entitled to an award of costs and disbursements in her favour.2 Counsel for Ms Siemer advises the Court that his client’s actual costs amount to $8,728.33. He calculates that costs on a category 2 Band B basis would amount to $22,387.50. He accepts, however, that the costs awarded by the Court should not exceed actual costs incurred.3

[5] I consider that the calculations of counsel for the plaintiff may overstate somewhat the costs payable on a Category 2 Band B basis. Counsel has claimed

_{costs under Item 30 of Schedule 3 to the High Court Rules (calculated at 2.5 days -}

1 _{Siemer v The District Court at North Shore [2012] NZHC 3191.}

2 _{High Court Rules, r 14.2(a).}

3 Ibid, r 14.2(f).

$4,975.00) in respect of the preparation of an affidavit sworn by the plaintiff on

2 October 2012. That affidavit was one of the documents filed when the plaintiff commenced the proceeding. Item 30, however, applies in respect of steps taken when preparing for trial. For that reason I consider that costs incurred in preparing the plaintiff’s substantive affidavit arguably form part of the costs claimable in respect of the commencement of the proceeding (Schedule 3, Item 1).

[6] Putting that issue to one side, however, it is clear that the costs payable on a Category 2 Band B basis exceed actual costs incurred. For that reason, I fix the sum of $8,728.33 as being the quantum of costs payable to Ms Siemer.

Incidence of costs

[7] The issue I am now required to determine is whether I should uphold the plaintiff’s argument that the first and second defendants should be jointly and severally liable to pay the costs.

[8] The Auckland Council actively opposed Ms Siemer’s application, and did not concede that it had merit until the commencement of the hearing. At that point its counsel accepted that the application for judicial review must succeed. For that reason, and because the Auckland Council accepts it was at least partly to blame for the events that gave rise to Ms Siemer’s claim, the Auckland Council accepts that an award of costs may properly be made against it. It submits that it should be liable for the sum of $3,500, or just less than half the actual costs incurred by the plaintiff.

[9] The first defendant abided the decision of the Court in relation to the substantive proceeding, but sought to be heard if necessary in relation to the issue of costs. It opposes any award of costs being made against it. It submits that the Court should only make an award of costs against a judicial officer, in this case the Justices of the Peace, in circumstances where the judicial officer has acted in a manner that is perverse, oppressive or in bad faith.

[10] The leading authority in this context is the judgment of the Court of Appeal in Coroner’s Court v Newton.4 In that case the Court of Appeal considered an appeal against a decision of this Court awarding costs against a coroner in judicial review proceedings. The principles relevant to an award of costs in the present context can be distilled from the following passages of the judgment in Newton:

[1] In New Zealand orders against judicial officers for costs incurred in legal proceedings are extremely rare. In this proceeding a High Court Judge has ordered costs against the coroner at Christchurch. The issue before us is whether the Judge was correct to do so.

...

[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 cots – 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] Counsel for Ms Siemer contends that the principles identified in Newton do not apply in circumstances where the claim is not against a named judicial officer, but rather against the public institution of which the judicial officer forms part. He points out that Ms Siemer did not file her claim against the Justices personally. Rather, she issued it against the District Court, being the public institution to which the Justices belong.

[12] I accept that some passages in Newton suggest that the Court of Appeal treated the claim as being against the coroner in question personally. In particular,

_{the repeated use of the term “judicial officer” could suggest that the Court was}

4 Coroner’s Court v Newton [2006] NZAR 312.

concerned with costs payable in respect of claims against judicial officers as individuals rather than costs payable in respect of claims against judicial institutions. Reading the judgment as a whole, however, I do not consider that to be the case.

[13] It is also noteworthy that, when citing authorities in support of the principles it identified, the Court included two cases in which the defendant was an institution rather than a judicial officer.5

[14] A Full Court of this Court6 considered this issue in Brown v Maori Appellate Court7. In that case, the plaintiff had succeeded in an application for judicial review against a decision of the Maori Appellate Court dismissing the applicant’s appeal against a decision of the Maori Land Court. Both Courts were named as

respondents in the judicial review proceeding. The issue for the Full Court was whether it should make an award of costs in favour of the applicant against the two respondent courts. It refused to do so. The Court said:

[19] ... We were concerned at the proposal to award costs against a Court and invited further submissions on this aspect. We have to say that at the date of writing this judgment the submissions we have received have not been helpful. However, the Court’s own research has made it clear that such an award should only be made in truly exceptional circumstances.

[20] In R v Willesden Justices, ex p Utley [1948] 1 KB 397 Justices of the Petty Sessional division of Willesden misread a section in a statute and as a result imposed a fine that was in excess of their jurisdiction. The conviction was quashed and the applicant sought costs. Lord Goddard CJ said at p 400:

“It is the rarest thing for this court to give costs against justices. The only case is when justices have done something which calls for strong disapproval from this court. In the present case the justices made a bona fide mistake.”

[21] In R v Liverpool Justices, ex p Roberts [1960] 1 WLR 585n at pp

586 – 587 Lord Parker CJ said that:

“. . . it has been the practice not to grant costs against justices or tribunals merely because they have made a mistake in law, but only if they have acted improperly, that is to say, perversely or with some disregard of the elementary principles which every court ought to obey, and even then only if it was a flagrant instance.”

_...

5 Ibid at [43]: El Deeb v Magistrates Court of South Australia [1999] SASC 113; (1999) 72 SASR 596; Magistrates

_{Court of Victoria at Heidelberg v Robinson (2000) 2 VR 233.}

6 _{Comprising Elias CJ and Salmon J.}

7 Brown v Maori Appellate Court [2004] 3 NZLR 742.

[23] Richard Gordon QC, Judicial Review: Law and Procedure (1996) para 9-023, states that where the applicant succeeds against a public body the Court is unlikely to award costs where such a body has not appeared and has not been represented, provided that any error of law made is not something that calls for strong disapproval by the Court.

[24] The principles set out above as applying to Justices apply with even more force to Courts such as the first and second respondents.

[25] In the present case the first and second respondents abided the decision of the Court and took no further part in the High Court proceedings. The decision, which was the subject of appeal, does not in any respect fall into the category that would call for an award of costs.

(Footnotes omitted)

[15] Given these observations, I decline to draw a distinction for present purposes between cases in which the named defendant is a judicial officer, and those in which the defendant is a judicial institution. I proceed on the basis that the principles to be applied in both cases is the same. They are those referred to in Newton and Brown.

[16] In my judgment, I identified two errors of law and/or process on the part of the Justices.8 First, they purported to “reinstate” the infringement notice and penalty when Ms Siemer did not appear at a hearing on 21 February 2012 under a non- existent provision in the Summary Proceedings Act 1957. Secondly, the Justices declined Ms Siemer’s application for a re-hearing of the infringement notice without giving any reasons for doing so. They took that step notwithstanding the fact that the

Auckland Council had indicated it did not oppose the re-hearing being granted.

[17] The first decision appears to have occurred as a result of the Justices’ mistaken belief as to the appropriate procedure to follow when the recipient of an infringement notice fails to appear at the hearing. The Justices appear to have been under the impression that in such circumstances they had the ability to reinstate the original infringement notice and restore the penalty payable under that notice. As I held,9 the proper procedure at that point was for the Justices to satisfy themselves that the charge had been made proved on factual material provided by way of formal

_{proof. I therefore categorise the Justices’ decision as being an error of law.}

8 _{Siemer v The District Court at North Shore, above n1 at [9] – [10].}

9 Ibid, at [13].

[18] The second decision appears to have been based on the Justices’ mistaken belief that Ms Siemer knew about the hearing on 21 February 2012, but deliberately did not attend. That was a mistake of fact, because the evidence suggests that Ms Siemer was not aware of the hearing on 21 February. It was also an error of law, because the Justices were not entitled to decline Ms Siemer’s application for re- hearing without regard for either the explanation she had provided for her earlier non-appearance or the fact that the Auckland Council did not oppose the application for re-hearing.

[19] I do not consider, however, that in making either decision it can realistically be suggested that the Justices acted perversely, oppressively or in bad faith. To be fair, counsel for Ms Siemer does not contend they acted in bad faith. Rather, he characterised their conduct as being grossly negligent or reckless.

[20] In addition, the District Court quite properly abided the decision of this

Court, and did not actively oppose Ms Siemer’s claim.

[21] These factors persuade me that it would not be appropriate to make an award of costs against the first defendant. As a consequence, the award of costs must be borne by the Auckland Council.

Should counsel for the Auckland Council also be liable to pay costs?

[22] Ms Siemer also seeks an order that counsel for the Auckland Council is also liable in respect of the award of costs. In essence, her counsel contends that counsel for the Auckland Council ought to have appreciated at an early stage that Ms Siemer had an unanswerable case. Notwithstanding that fact, counsel permitted his client to proceed to trial. Counsel for Ms Siemer therefore submits that, in terms of the principles referred to by the Privy Council in Harley v McDonald,10 counsel for the Auckland Council should also be liable to meet the costs payable to his client.

[23] I do not consider the threshold has been reached in the present case to justify an award of costs against counsel.

10 Harley v McDonald [2001] 1 AC 678 at [48]-[56].

[24] The principal ground upon which I granted Ms Siemer’s application for review was the Justices’ failure to follow the correct procedure after Ms Siemer did not appear at the hearing on 21 February 2012. Counsel for the plaintiff had not identified that as an issue prior to the hearing. It was not until counsel for the Auckland Council provided the Court and counsel for the plaintiff with a copy of the

judgment of this Court in Spiekerman v New Zealand Police11 that Ms Siemer’s

counsel became aware of it. Counsel for Ms Siemer accepts that counsel for the Auckland Council acted responsibly in raising this issue at the hearing, but points out that it was obviously done at the eleventh hour.

[25] Although I also observed in my judgment12 that the actions of the Auckland Council prior to the hearing before the Justices on 21 February were “questionable”, I put matters no higher than that. I do not consider that counsel for the Auckland Council was confronted from the outset with a claim that was completely indefensible.

[26] I therefore do not consider that this is an appropriate case in which to make an order requiring counsel to meet the award of costs that I have imposed upon his client.

Result

[27] Ms Siemer is entitled to an award of costs in the sum of $8,828.33. Those costs are payable by the second defendant, the Auckland Council.

Lang J

Solicitors:

Amicus Lawyers, Auckland

Crown Law, Wellington

Buddle Findlay, Auckland

11 _{Spiekerman v New Zealand Police HC Wellington CRI-2006-843-20, 25 October 2006.}

12 Siemer v Auckland Council above n 1 at [15].