Urquhart-Barrett v Accident Compensation Corporation [2014] NZHC 2030 (26 August 2014)

Last Updated: 9 September 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000020 [2014] NZHC 2030

BETWEEN	LESLIE WAYNE URQUHART- BARRETT Appellant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	3 July 2014 Further submissions received 18 July 2014 and 5 August 2014
Appearances:	R J Burnside for Appellant K B Bell for Respondent
Judgment:	26 August 2014

JUDGMENT OF GENDALL J (Costs Decision - Dealt With on the Papers

[1] On 8 July 2014 I delivered a judgment in this proceeding dismissing the appeal of Mr Urquhart-Barrett against conviction and sentence.¹ However, in that judgment there remained an issue as to the extent to which Mr Urquhart-Barrett should be made to contribute to the cost of an expert witness in the appeal proceeding, Dr du Plessis.² This issue arose due to an apparent discrepancy between the costs claimed by the Crown and the costs that ought to have been awarded pursuant to the Costs in Criminal Cases Regulations 1987 and the Witnesses and Interpreters Fees Regulations 1974. This issue had not been signalled by either party nor the Judge in the District Court until raised on appeal.

[2] In the 8 July 2014 decision I directed that Mr Urquhart-Barrett was still to

_{contribute to the costs of Dr du Plessis’ professional fee, adjusted only to comply}

¹ _{Urquhart-Barrett v ACC [2014] NZHC 1585.}

² At [30] – [32].

with the regulations.³ The Registrar was directed to set Dr du Plessis’ professional

fee after counsel sequentially filed memoranda within 20 working days.⁴

Memoranda from counsel have now been filed. However, instead of confining submissions to the quantification point, it appears that Ms Burnside for Mr Urquhart- Barrett has sought to raise a further issue. Namely, that because Mr Urquhart-Barrett was legally aided, she contended that no award of costs whatsoever should be made against him. This argument was premised on the fact that ss 45 and 46 of the Legal Services Act 2011 apply by analogy and upon a concession said to have been made by the Crown that no “exceptional circumstances” exist in the present case. Ms Burnside stated also:

If this position is not acceptable to the Court, then we seek leave of the Court to have the Appeal reconvened or file a separate application after final judgment.

[3] On these aspects, first one matter needs to be made plain. In my earlier judgment, I reserved the position in respect of this appeal solely in respect of quantification of Dr du Plessis’s professional fee and not otherwise. Prior to her memorandum being filed, as I understand the position, Ms Burnside had at no point signalled: (a) that Mr Urquhart-Barrett was legally aided; or (b) that this should in any way impact on the adverse costs award. And her memorandum did not address the specific issue of quantification of the fees of the expert witness to be awarded.

[4] As to Ms Burnside’s argument that Mr Urquhart-Barrett’s status as being a recipient of legal aid should militate against this Court making an adverse costs award against him, I make the following observations:

(a) Sections 45 and 46 of the Legal Services Act 2011 expressly apply only to legally aided persons in civil proceedings. Different policy reasons apply for granting legal aid to persons in the civil and criminal spheres. The justifications for one are not readily

_{transferrable to the other.}

³ _{At [33].}

⁴ At [31] and [33].

(b) Any argument that those sections should apply to the present case is wholly antithetical to the Costs in Criminal Cases Act 1967, and the regulations promulgated thereunder. That Act and the regulations constitute a specific codified regime for dealing with costs in criminal cases. Any value an analogy might have is rendered redundant by this regime which empowers the Court to make the kind of orders which Ms Burnside claims here should not be made.

(c) The “exceptional circumstances” referred to by Ms Burnside in her memorandum are ordinarily pointed to in order to justify departure from the default position, namely payment of fees and allowances in accordance with the scheduled amounts.⁵ Here, the directions given in my earlier judgment were simply to ensure compliance with the regulations, not to depart from the default scales of costs set out therein.

(d) If this argument now advanced by Ms Burnside was to be run in earnest, it should have been raised on appeal, and not after the appeal had been heard, with the substantive decision delivered. As I have noted above, the only aspect of this appeal that remained on foot was quantification. Ms Burnside is in reality asking this Court to revisit its decision. It is my view that this is not a case justifying the exercise of the Court’s inherent power to do so, a discretion which is only to be exercised in exceptional circumstances when required by the interests

of justice.⁶ As the Court of Appeal noted in Wong, an important

principle of finality to resolve proceedings and to give certainty is involved here.

[5] Given also that Ms Burnside it seems has elected not to put forward any submissions as to the quantum of proper costs to be awarded under the regulations, I am left with little option but to accept the submissions of the Crown on

_{quantification. In any event, I do accept those submissions and I therefore fix the}

5. Witnesses and Interpreters Fees Regulations 1974, cl 8(2) and Costs in Criminal Cases Act 1967, s 13(3).

⁶ R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (CA); Wong v R [2011] NZCA 563.

quantum of Dr du Plessis’ professional fee, as payable by Mr Urquhart-Barrett here at $1,388.

...................................................

Gendall J

Solicitors:

Roz Burnside Law, Christchurch

Raymond Donnelly & Co, Christchurch