DOTCOM v ATTORNEY-GENERAL [2015] NZHC 246

DOTCOM v ATTORNEY-GENERAL [2015] NZHC 246 [23 February 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2013-404-2168[2015] NZHC 246IN THE MATTER of the New Zealand Bill of Rights Act1990 and the GovernmentCommunications Security Bureau Act2003BETWEEN KIM DOTCOMFirst PlaintiffAND MONA DOTCOMSecond PlaintiffAND BRAM VAN DER KOLKThird PlaintiffAND JUNELYN VAN DER KOLKFourth PlaintiffAND MATHIAS ORTMANNFifth PlaintiffAND FINN BATATOSixth PlaintiffAND ATTORNEY-GENERAL in respect of theNew Zealand PoliceFirst DefendantAND ATTORNEY-GENERAL in respect of theGovernment Communications SecurityBureauSecond DefendantHearing: On the papersJudgment: 23 February 2015COSTS JUDGMENT OF WINKELMANN JThis judgment was delivered by me on 23 February 2015 at 4.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy Registrar[1] By judgment dated 16 June 2014, I ordered non-party discovery against the Department of Prime Minister and Cabinet (DPMC) and Mr Roy Ferguson as follows:1All documents held by DPMC (including both documentary material andelectronically held material) relating to GCSB's surveillance of the plaintiffs, the legality of that surveillance, and GCSB's knowledge of the illegality ofthat surveillance.[2] The non-parties provided discovery in compliance with the order. There were no documents falling within this category. They now seek orders of costs against the plaintiffs in respect of the application (2B scale costs plus disbursements totalling $4,786.50), the actual costs of complying with the order ($3,211.96) and actual costs in respect of this costs application (around $2,500.00).[3] The plaintiffs resist any order for costs on the provision of the non-party discovery. They say that the non-parties should have responded at an earlier point in time that they had no documents which fell within the terms of the request. That would have avoided the cost of the application for all parties.[4] It is clear that a costs award cannot be resisted on this basis as the original request made was far wider than the order for discovery. It was only after the plaintiffs narrowed the scope of documents they were seeking at the hearing that the order in its present form was made and that the DPMC and Mr Ferguson could respond confirming that there were no such documents.[5] The plaintiffs also submitted that costs should be reserved pending the outcome of the substantive proceeding. I do not consider that there is any principle that requires costs in connection with non-party discovery to be reserved until final disposition.[6] The plaintiffs resist an award of costs on the application on the additional grounds that the non-parties were represented by the same counsel as the GCSB, the submissions in opposition to the application for non-party disclosure were authored by counsel for the GCSB and it was counsel for the GCSB who appeared at the1 Dotcom v Attorney-General [2014] NZHC 1343 at [42].hearing and presented arguments in opposition. However, counsel for the non- parties confirms that Crown Law separately invoiced the non-parties for the work, and that those invoices exceed the costs now sought. It is clear that defending the application would have entailed additional costs to those incurred in representing the GCSB.[7] As non-parties, the DPMC and Mr Ferguson should be entitled to the actual costs of compliance with the order for non-party discovery.[8] In these circumstances I am satisfied that it is appropriate to exercise the jurisdiction under r 8.22 to order the costs sought on both the application for non- party discovery and the provision of discovery.[9] As to the quantum of the costs of complying with the application, the plaintiffs say that there is no information as to how the claimed costs are made up. In submissions in reply invoices are provided in support of the amount. That information establishes that actual costs of complying with the order were in the vicinity of $3,211.96 and accordingly I am satisfied that is an appropriate amount to award.[10] That leaves the issue of costs on the costs application. There is discretion to award costs on a costs application. The non-parties seek actual costs. The non- parties acted reasonably in connection with all aspects of the application for costs. It is therefore appropriate to award indemnity costs in connection with the costs application.2 I refer this aspect of the issue of costs to the Registrar. He is to fix the indemnity costs award on presentation of invoices to him establishing costs incurred in bringing this application for costs.Orders[11] The plaintiffs are jointly and severally liable to the non-parties for the following costs:32 High Court Rules, r 14.6(4)(d).3 Rule 14.14.(a) 2B scale costs plus disbursements on the application of $4,786.50;(b) the actual costs of complying with the discovery order of $3,211.96; and(c) indemnity costs in connection with this costs application to be fixed by the Registrar.