COMMISSIONER OF POLICE V FENG CHIH HSU HC AK CIV-2009-404-008494

COMMISSIONER OF POLICE V FENG CHIH HSU HC AK CIV-2009-404-008494 [15 August 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2009-404-008494[2012] NZHC 2092IN THE MATTER OF the Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND FENG CHIH HSURespondentHearing: 15 August 2012Counsel: M Harborow for ApplicantV Withy for RespondentJudgment: 15 August 2012INTERLOCUTORY COSTS JUDGMENT OF ASHER JSolicitors/Counsel:Crown Solicitor, DX CP24063, Auckland 1140. Email: mark.harborow@meredithconnell.co.nzV Withy, C/- R Mansfield, PO Box 2674, Shortland Street, Auckland 1140. Email: ron@22lorne.co.nz[1] In the Duty Judge list today, the Commissioner of Police seeks costs on atimetable extension sought on behalf of the defendant Feng Chih Hsu. Mr Hsu hasbeen convicted of charges involving serious drug offending and was sentenced to17 years' imprisonment on 4 May 2012. At that time it was indicated to Toogood J,who was presiding, that a memorandum seeking consent timetable directions forforfeiture proceedings would be filed shortly. In fact, as I understand is accepted,there were approaches to counsel by Meredith Connell acting for the Commissioner,but they were unable to obtain a response and to achieve the anticipated agreementon directions.[2] Ultimately on 12 June 2012 a memorandum was filed in which counseladvised the Court that the Commissioner was unable to get a response to a draftconsent memorandum that had been provided, despite reminders on two occasions.[3] It seems that shortly after the filing of that memorandum counsel did confer and the consequence was a consent memorandum filed on 18 June 2012 in which thefollowing directions were made:(a) A detailed notice of opposition to be filed by Monday 18 June 2012. Such notice is to clearly identify the grounds of opposition;(b) Affidavits in opposition to be filed by Monday 30 July 2012;(c) A mention hearing to be scheduled thereafter to determine whether asubstantive hearing is required.Toogood J made those directions on 19 June 2012.[4] These directions have not been complied with by the respondent. Ultimately,a short form notice of opposition was filed on 10 August 2012. No affidavits have asyet been filed. The respondent has sought timetable directions for an extension ofone month so that the time for the filing of affidavits is extended to 12 September2012. The matter is then to be listed in the Duty Judge list for call. This extension isnot objected to by the Commissioner.[5] However, Mr Harborow for the Commissioner seeks costs on the basis thatthe Commissioner has incurred extra legal fees because of the need to:(a) continue to approach counsel to try and reach agreed directions after4 May 2012;(b) file the memorandum of 12 June 2012 unilaterally explaining the delay;(c) renegotiate the timetable and draft a new consent memorandum which was filed on 18 June 2012;(d) pursue compliance with the respondent when the timetable wasbreached and then receive the respondent's memorandum andultimately agree a new timetable.There has also been the appearance today which has been solely to seek costs as theCommissioner has agreed to the extension of the timetable.[6] Ms Withy for the respondent opposes the making of any order for costs. Shesubmits there is no jurisdiction to make such an order as it does not fall within any ofthe specified procedures for which there is a cost allocation in the High Court Rules.She also submits that there has been no serious failure or dereliction of duty whichwould warrant the making of an order for costs.[7] It is said in the memorandum seeking costs that the Court might wish toconsider awarding costs against counsel for the respondent rather than against therespondent. I say immediately that I am not prepared to do that. There does notappear to have been any action on the part of counsel involving any failure or breachof duty of sufficient moment to warrant that extreme course of action. I am,however, prepared to make a modest order of costs in favour of the Commissioner.[8] There is undoubtedly jurisdiction to do so. The Court has a specificjurisdiction to make order as to costs at its discretion under r 14.1 of the High CourtRules. It also has an inherent jurisdiction to do so. The fact that a procedure doesnot fall within one of the procedures expressly provided for in the Schedule to the Rules does not preclude the Court from making an order. Where there have beentimetable failures by a party which have put the other side to inconvenience and costit is entirely orthodox for cost orders to be made. Forfeiture proceedings under s 10of the Criminal Proceeds (Recovery) Act 2009 are, as counsel accept, civilproceedings and fall within the High Court Rules.[9] The default involved in not meeting the timetable directions does not requiredetailed analysis. Ms Withy accepts that there has been a combination ofadministrative errors and pressures of workload which have led to the failure to meetthe directions. Directions are made for a purpose and the Court does not lightlyaccept a failure to meet directions. The parties that suffer delay and costs are entitledto expect a robust response from the Court which will take into account the extraexpenses arising from the delay.[10] I am informed the delays here involve approximately two hours of extra workfor the lawyers for the Commissioner. There does not appear to be any other issue Ineed to take into account, such as disadvantage arising from the delay. Theforfeiture proceedings have been in existence since 2010. There is nothingindicating extreme urgency.[11] In the circumstances I think a cost award that reflects the two hours of extrawork resulting from the breaches of the timetable directions is necessary. I fix costsat $400.Result[12] The respondent is to pay the applicant costs of $400 in respect of the breachof the directions orders arising from the hearing of 4 May 2012...Asher J