COMMISSIONER OF POLICE v BROWN [2022] NZHC 2688

COMMISSIONER OF POLICE v BROWN [2022] NZHC 2688 [18 October 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV 2020-463-39[2022] NZHC 2688IN THE MATTER of an application pursuant to the CriminalProceeds (Recovery) Act 2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND ANNALISE LARA BROWNRespondentHearing: On the papersJudgment: 18 October 2022COSTS JUDGMENT OF DUFFY JThis judgment was delivered by me on 18 October 2022 at 2.15 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors/Counsel:Andrew Hill, RotoruaCrown Solicitor, Rotorua[1] This is a civil proceeding brought by the Commissioner of Police (theCommissioner) against the respondent under the Criminal Proceeds (Recovery) Act2009. The proceeding was set down for a one day hearing on 31 May 2022. It couldnot proceed because no counsel was available to represent the Commissioner.Mr Macklin who to date has been the Crown counsel responsible for representing theCommissioner in this proceeding could not appear in Court. His failure to appear wasthrough no fault of his own.[2] Over the weekend of 28 and 29 May 2022 Mr Macklin had travelled toChristchurch to visit an ill relative. The trip was on late notice and was urgent. Hebooked the first return flight out of Christchurch on Monday 30 May 2022 which waswell over 24 hours prior to the scheduled hearing date. Regrettably poor weatherresulted in a series of flight changes and cancellations over the course of Monday30 May 2022. By 3.30 pm Mr Macklin had not been able to secure clear flights toRotorua or any nearby airport. Rotorua airport was closed with no further flights in.Hamilton and Tauranga flights were also subject to poor weather forecasts and werenot reliable options for landing. Mr Macklin immediately contacted the Court.Various options to allow the hearing to proceed were canvassed but ultimately foundunsuitable by the Court. Accordingly, the hearing was adjourned.[3] Against this background Mr Macklin submits that the Commissioner shouldnot be liable for costs as the adjournment was brought about through no fault of theCommissioner.[4] The respondent advises that she is being funded via a grant of civil legal aid.Her counsel, Mr Hill, disputes the Commissioner's primary position that no costs ordershould be made. Mr Hill submits that substantial preparation was put into the hearingscheduled for 30 May 2022 and that to date he has invoiced the Legal ServicesCommissioner (LSC) 30 hours of preparation and $100 in office disbursements.Further, the grant of civil legal aid is essentially a loan and depending on the outcomeof the hearing the respondent may be required to repay that money at the conclusionof her case. The maximum amount required to be paid back by the respondent incircumstances where the application for forfeiture is granted can be no higher than themaximum recoverable amount set by the LSC on a case by case basis. Because thecase has been adjourned to another date Mr Hill submits he will necessarily have toreprepare for that hearing closer to time. He contends the volume of evidence that hasbeen filed is reasonably large and estimates there are somewhere between 500 and 750pages of affidavits and exhibits. Much of this evidence relates to various bankaccounts which require close and careful consideration. He argues that he will berequired to review all of the evidence again to properly prepare for the rescheduledhearing. That is an additional cost which he submits should not be borne by therespondent because the delay was not of her making.[5] Mr Hill acknowledges that the delay was caused by factors outside theCommissioner's control (weather conditions and flight cancellations) but submitsnevertheless the reality remains the hearing had to be adjourned. The Commissionerwas represented by a Crown Solicitor's firm, which ordinarily suggests that onecounsel's absence should be covered by another lawyer at the firm.[6] In their respective memorandum counsel for each party has traversed thehistory of this proceeding and the fact that it has been adjourned in the past with nocosts orders made. From the Commissioner's perspective earlier adjournments werebrought about by the respondent. From her perspective that is not always the case. Ido not think it helpful to traverse the history of the matter. By 30 May 2022 it hadreached a point where the Court had done what it could to ensure the proceeding wentto a substantive hearing. For whatever reasons there had been delay in the past andtherefore some effort was made to obtain a hearing date that would bring the matter toan end in this Court.[7] This is a civil proceeding. Late notice adjournments typically result in costsawards against the offending party. I consider there is strength in Mr Hill's argumentthat the Commissioner, being a public officer who is represented by the local CrownSolicitor's office, should be able to ensure that if counsel responsible for the file cannotbe present a substitute counsel is available. The Rotorua airport is often closed duringthe winter due to bad weather. It cannot be assumed that flights will readily beavailable to Rotorua in winter conditions. I accept that for Mr Macklin the trip toChristchurch may have been urgent and necessary. However, I consider once therewas a decision to make the trip a substitute counsel should have been identified tocover in case something prevented his return for the hearing.[8] Accordingly, I am satisfied an award of costs is warranted. I see no reasonwhy the usual scale 2B costs should not be awarded here as well as reasonabledisbursements. Those costs should provide for recovery of the steps taken to preparefor the hearing.Result[9] The respondent is awarded costs at category 2B and reasonable disbursements.Duffy J