COMMISSIONER OF POLICE v AARTS [2015] NZCA 385

COMMISSIONER OF POLICE v AARTS [2015] NZCA 385 [21 August 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA400/2013[2015] NZCA 385BETWEEN COMMISSIONER OF POLICEAppellantAND JOHAN AARTSRespondentCourt: White, French and Cooper JJCounsel: J Catran and M Conway for AppellantRespondent in personJudgment:(On the papers)21 August 2015 at 10.00 amJUDGMENT OF THE COURTThe application by the respondent for costs is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by White J)Introduction[1] This is an application by the respondent, Mr Aarts, for full indemnity costs against the appellant, the Commissioner of Police (the Commissioner). Mr Aartsclaims that the Commissioner's appeal was an abuse of process because the Commissioner has filed a notice of abandonment of appeal. The Commissioner opposes the application.Procedural background[2] Mr Aarts brought a claim in the Employment Relations Authority (ERA) that he was unjustifiably dismissed by his employer, Barnados New Zealand. He claimed nine other respondents (the other Respondents), including the Commissioner, should be joined as having incited or procured a breach of his employment contract. He sought an order that the Commissioner provide him with a copy of an evidential videotaped interview (EVI) held by the Police. In a preliminary decision on 18 January 2012 the Authority declined to join the other Respondents and found no grounds for making an order that the Commissioner provide a copy of the EVI.1[3] On 8 March 2012, the ERA awarded costs of $1,500 to the Commissioner against Mr Aarts in respect of this preliminary decision.2[4] Mr Aarts challenged the preliminary ERA decision and the ERA costs decision in the Employment Court. On 20 May 2013, the Court upheld the decision declining to join the other Respondents and the costs decision.3 It decided, however, that the ERA had power to compel production of the EVI if it was relevant.4 This was a partial success for Mr Aarts.[5] In a supplementary decision on 1 August 2013, the Employment Court awarded costs with respect to the challenge against Mr Aarts in favour of four of the other Respondents and declined his counterclaim for costs.5[6] Mr Aarts was represented by a lay advocate, Mr Lee, in the ERA and the Employment Court.[7] On 18 June 2013, the Commissioner applied for leave to appeal to this Courtagainst the Employment Court's decision that the Authority had power to compelproduction of the EVI.1 Aarts v Barnados New Zealand [2012] NZERA Auckland 22.2 Aarts v Barnados New Zealand [2012] NZERA Auckland 87.3 Aarts v Barnados New Zealand [2013] NZEmpC 85, (2013) 10 NZELC 79-028 at [68] and [128].4 At [92].5 Aarts v Barnados New Zealand [2013] NZEmpC 145 [Employment Court costs decision].[8] On 5 July 2013, Mr Aarts consented to leave being granted and applied for leave to cross-appeal against the Employment Court's refusal in its preliminarydecision to join the other Respondents.[9] On 4 October 2013, Mr Aarts was advised by the Registry of this Court that he needed to make an application for lay representation if he wanted Mr Lee to represent him in this Court. On 31 October 2013 he applied for representation by Mr Lee. Randerson J declined the application on 1 November 2013.6[10] On 18 November 2013, Mr Aarts applied for leave to appeal against the Employment Court costs decision of 1 August 2013.[11] On 22 November 2013, Mr Aarts withdrew his application to cross-appealand sought to oppose the Commissioner's application for leave to appeal, havingpreviously consented to it. He was later allowed to reinstate his application to cross- appeal.7[12] On 14 February 2014, this Court adjourned the Commissioner's applicationfor leave to appeal for oral argument on the question whether the Court had jurisdiction to hear the appeal, indicating it proposed to grant leave and hear the appeal in the same hearing if it answered the jurisdiction question affirmatively.8The Court declined Mr Aarts' applications for leave to cross-appeal and to appeal against the Employment Court costs decision. Costs were reserved.[13] A fixture was allocated for 11 June 2015 for this Court to hear the jurisdiction question and, if leave was granted, the appeal.[14] On 10 March 2014, Mr Aarts applied for leave to appeal to the Supreme Court against this Court's decision declining the applications for leave to cross-appeal and to appeal against the costs decision. That application was6 Commissioner of Police v Aarts CA400/2013, 1 November 2013 (minute of Randerson J).7 Commissioner of Police v Aarts [2014] NZCA 16 [CA leave decision] at [8].8 CA leave decision, above n 7.dismissed by the Supreme Court on 28 May 2014, and costs of $2,500 and disbursements were awarded against Mr Aarts.9[15] On 8 May 2015, the Commissioner filed a notice of abandonment of his appeal to this Court. The fixture allocated for 11 June 2015 was vacated, and this Court did not hear oral argument on the jurisdiction question or make a final determination whether it would grant leave to appeal.Submissions[16] Mr Aarts submits he is entitled to full indemnity costs because, although he is a self-represented litigant, he was represented by a lay advocate, Mr Lee, in the ERA and Employment Court and was reasonable in wanting Mr Lee to represent him in this Court and in assuming he could recover Mr Lee's costs if he were successful.He says information to the contrary was not available online or in the Court of Appeal (Civil) Rules 2005. He was not advised by the Registry until some months after proceedings commenced in this Court that he could not automatically be represented by Mr Lee. By the time the application for lay representation was declined he had already incurred costs. If costs are not awarded, the costs of employing Mr Lee would be prohibitive.[17] Mr Aarts further submits:(a) The principle that a self-represented litigant is not entitled to costs is out-of-date because legal resources are now available on the internet for free and the gulf of competence between lay and legal representatives has narrowed.(b) The proceedings were an abuse of process because the Commissioner sought leave to file additional written submissions on the EVI ground in the Employment Court but did not ultimately file submissions. This meant the EVI ground was decided in Mr Aarts' favoureffectively by consent. The appeal and its abandonment soon before9 Aarts v Barnados New Zealand [2014] NZSC 62.submissions were due to be filed were a continuation of this abuse ofprocess. The Commissioner's appeal was hopeless.(c) It is irrelevant that the Commissioner has not attempted to enforce other costs awards against Mr Aarts.[18] Mr Aarts attaches to his submissions an invoice for the services of Mr Leerelating to the Commissioner's application for leave and the appeal. He seeksindemnity costs for the full sum of $3,280.[19] The Commissioner submits in reply that each party should bear their own costs because:(a) Mr Aarts failed in his application for leave to cross-appeal and appeal against the Employment Court costs decisions, and costs were reserved with respect to those applications.10(b) Mr Aarts was self-represented and his application for lay representation was declined. Self-represented litigants are entitled to reasonable disbursements, but not to costs. The refusal of the application for lay representation was consistent with the settled approach to appeals from the Employment Court because appeals on questions of law are unlikely to be assisted by lay litigants.11(c) The application for leave and subsequent abandonment were not anabuse of process, but reflected the Commissioner's view that the appeal was no longer of general and public importance because of the forthcoming Evidence Amendment Bill 2015.[20] In the alternative the Commissioner submits the quantum sought should be reduced because: Mr Aarts is bankrupt so the Commissioner has not enforced the Supreme Court and Employment Court costs awards against him; and some of the10 See above at [12].11 Honda v Boilermakers Union [1991] 1 NZLR 392 (CA) at 397.lay advocate's fees would have been incurred after the application for layrepresentation was declined. The quantum should be reduced by:(a) $1,500, being the amount upheld by the Employment Court for the ERA hearing against Mr Aarts in favour of the Commissioner.12(b) $1,250, being half the amount awarded by the Supreme Court against Mr Aarts in favour of the Commissioner and the Ministry of Social Development, who was also a respondent to that application for leave to appeal.(c) Mr Lee's fees for drafting and filing a notice of opposition andpreparing submissions for the appeal, as these would likely have been incurred after the application for lay representation was declined on 1 November 2013.Analysis[21] The starting point is that Mr Aarts was self-represented in this Court because leave was not granted for Mr Lee to represent him. It is well-established that a self-represented litigant is not entitled to costs.13[22] It is no answer that Mr Aarts did not know until some months after proceedings in this Court commenced that he needed leave for Mr Lee to appear as his advocate. The general prohibition on lay advocates is in s 24 of the Lawyers and Conveyancers Act 2006 which is publicly available. Mr Lee is allowed to appear as an advocate in the Employment Court under the Employment Relations Act 2000, but there is no equivalent exception to the general rule for appeals under that Act to this Court.14 Mr Aarts's complaint that he did not know Mr Lee could not act as his advocate is therefore not meritorious.12 See above at [3]–[4].13 Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 440; Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24-500 at [162]; andCommissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 311, (2013) 26 NZTC 21-024 at [7].14 Employment Relations Act 2000, s 236(1); Lawyers and Conveyancers Act 2006, s 27(1)(b)(i).[23] Nor is there any merit in Mr Aarts' argument the "gulf of competence"between lay and legal representatives has narrowed with the rise of the internet. The restriction on those who may provide legal services is an important principle of public policy and is reinforced in the current scheme of ethical regulation of the legal profession.15[24] In any event, if we had been inclined to award costs to Mr Aarts, the quantum would have been small or zero:(a) Mr Aarts has given us no good reason why we should not take into account the costs orders from the Employment Court and Supreme Court which have not been enforced as Mr Aarts is bankrupt. The total quantum of unenforced costs awards is $2,750,16 compared withMr Aarts' claim for $3,280.(b) Costs for Mr Aarts' two unsuccessful applications for leave to appealwere reserved, but in the ordinary course would have been awarded to the Commissioner against Mr Aarts.17(c) The Commissioner's application for leave was adjourned and, in lightof the abandonment, not determined. Even assuming this Court had answered the jurisdiction question negatively, refused leave at the oral hearing, and was inclined to award costs to Mr Aarts with respect tothe Commissioner's application, the net payment of costs for the threeapplications for leave would likely to have been in favour of the Commissioner.(d) The Commissioner's abandonment should not count against him. Theproposed appeal was not hopeless, otherwise this Court would nothave proposed to grant leave to appeal. The Commissioner's15 Lawyers and Conveyancers Act, pts 2–3; Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008; Duncan Webb Ethics, Professional Responsibility and the Lawyer(2nd ed, LexisNexis, Wellington, 2006) at [4.5]; and Gino Dal Pont Lawyers' Professional Responsibility (5th ed, Thomson Reuters, Sydney, 2012) at [1.25] and ch 2.16 See above at [3], [14], and [20](a)–(b).17 On the principle that costs follow the event: Court of Appeal (Civil) Rules 2005, rr 53A(a) and 53G(1).abandonment of the appeal was reasonable in the light of the forthcoming clarification of the law by the Evidence Amendment Bill 2015, which proposes to prohibit showing an EVI unless otherwise permitted by the Evidence Act or Evidence Regulations.Result[25] Accordingly, Mr Aarts' application for full indemnity costs against theCommissioner of Police is declined.[26] Costs on this application should lie where they fall.Solicitors:Crown Law Office, Wellington for Appellant