COMMISSIONER OF POLICE v JAMES [2021] NZHC 125

COMMISSIONER OF POLICE v JAMES [2021] NZHC 125 [12 February 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-2236[2021] NZHC 125UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND BRETT WALLACE JAMESRespondentHearing: On the papersAppearances: M Harborow and A Masters for the ApplicantRespondent on own behalfJudgment: 12 February 2021JUDGMENT OF GORDON J[As to costs]This judgment was delivered by meon 12 February 2021 at 11 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, AucklandCopy to: RespondentIntroduction[1] This is an application by the Commissioner of Police (Commissioner) for costsfollowing my judgment, given on 20 November 2020, in which I granted theCommissioner's application for an assets forfeiture order over property belonging tothe respondent, Brett James.1 The Commissioner seeks costs against Mr James on a2B basis, in the sum of $13,742.50. The Commissioner does not seek costs againstWilson Chee, an interested party who had claimed that part of the property belongedto him.[2] Mr James did not file a memorandum in accordance with my timetable order,nor in response to promptings by the registrar. Following the registrar's reminders Iformally granted an extension. No memorandum was filed by the extended deadline.Background[3] Mr James was a legal aid recipient for the majority of this proceeding,represented by experienced counsel, Mr Philip Hamlin. Mr James became a self-represented litigant when Mr Hamlin was granted leave to withdraw as counsel, on17 September 2020, on the basis of an irreconcilable breakdown in the client/counselrelationship.Costs claimed and submissions[4] As the successful party, the Commissioner seeks costs against Mr James.2 TheCommissioner submits that he would have a case for increased costs on the groundsthat Mr James pursued an argument that lacked merit,3 failed to admit facts4 andrejected a reasonable offer of settlement.5 However, the Commissioner has elected toseek only scale 2B costs against Mr James, and only for the period in which he submitsMr James was self-represented. Those costs amount to $13,742.50. The1 Commissioner of Police v James [2020] NZHC 3075.2 High Court Rules 2016, r 14.2(1)(a).3 High Court Rules 2016, r 14.6(3)(b)(ii).4 High Court Rules 2016, r 14.6(3)(b)(iii); Commissioner of Police v James [2020] NZHC 3075 at[69].5 High Court Rules 2016, r 14.6(3)(b)(v) and 14.11.Commissioner does not seek costs against Mr James for the period in which Mr Jameswas legally aided and represented by Mr Hamlin.6[5] The Commissioner submits that Mr James became a self-represented litiganton 11 September 2020, being the date that Mr Hamlin filed a memorandum with theCourt seeking to withdraw as counsel for Mr James.[6] Accordingly, the Commissioner seeks costs pursuant to the followingschedule:Item Description Allocation DailyRecoveryRateTotalamountrecoverable11 Filing memorandum in advance ofmention (dated 14 September 2020)0.4 $2,390 $95612 Appearance at mentions hearing on 17September 20200.2 $2,390 $47840 Preparation of written submissions(dated 29 September 2020)1.5 $2,390 $3,58511 Filing memorandum regardingelectronic Courtroom (dated 5 October2020)0.4 $2,390 $95612 Appearance at mentions hearing on 7October 20200.2 $2,390 $47841 Preparation of bundle for hearing 0.6 $2,390 $1,43442 Appearance at hearing on 12–14October 20202.25 $2,390 $5,377.5029 Civil forfeiture orders (dated 20November 2020)0.2 $2,390 $478Total $13,742.50Quantum of costs[7] Normal costs principles apply in all matters under the Criminal Proceeds(Recovery) Act 2009.76 Legal Services Act 2011, s 45(1) and (2).7 Commissioner of Police v Antolik [2017] NZHC 86 at [2], adopting the reasoning of RodneyHansen J in Commissioner of Police v Stepping Stone Finance Ltd [2013] NZHC 1537 at [3]–[6].[8] As the successful party, I am satisfied that the Commissioner is entitled to anaward of costs against Mr James on a 2B basis for the period in which Mr James wasa self-represented litigant.[9] I am satisfied that the schedule produced by the Commissioner (and partiallyreproduced in [6] above) accurately reflects the steps he took in this proceeding. TheCommissioner says he seeks costs only for the period in which Mr James was a self-represented litigant. His schedule records this period as commencing on 11 September2020, being the date Mr Hamlin filed a memorandum with the Court seeking towithdraw as counsel for Mr James.[10] However, Mr Hamlin was only granted leave to withdraw at a mentions hearingon 17 September 2020. Mr Desai appeared, on instruction for Mr Hamlin at thatmentions hearing. In my view, consistent with r 5.41(3), Mr Hamlin remained thesolicitor on the record up until 17 September 2020. Accordingly, the Commissioneris not entitled to costs for the filing of his memorandum dated 14 September 2020, norfor his appearance at the mentions hearing on 17 September 2020. This reduces theamount recoverable by $1,434, bringing the sum amount recoverable to $12,308.50.Result[11] I make an order awarding costs in favour of the Commissioner in the sum of$12,308.50 against Mr James.___________________________________Gordon J