CURTIS v COMMONWEALTH OF AUSTRALIA [2019] NZCA 126

CURTIS v COMMONWEALTH OF AUSTRALIA [2019] NZCA 126 [1 May 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA234/2017[2019] NZCA 126BETWEEN JASON LEONARD CURTISAppellantAND COMMONWEALTH OF AUSTRALIARespondentCA539/2017BETWEEN JASON LEONARD CURTISAppellantAND DISTRICT COURT AT MANUKAUFirst RespondentCOMMONWEALTH OF AUSTRALIASecond RespondentCourt: French, Asher and Clifford JJCounsel: D P Hoskin for Appellant in CA234/2017 and CA539/2017K E Hogan and J M Pridgeon for Respondent in CA234/2017 andSecond Respondent in CA539/2017Judgment:(On the papers)1 May 2019 at 11 amCOSTS JUDGMENT OF THE COURTThe Commonwealth of Australia is to pay Mr Curtis' scale costs on a band A basisand usual disbursements, providing that the amount should not exceed theamount paid by Legal Services to Mr Curtis' counsel for the appeal.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)Introduction[1] This judgment determines costs on Mr Curtis' appeal, following our judgmentof 19 December 2018.1 Mr Curtis was the successful appellant in that appeal.In response to an appeal against a decision that he be surrendered for extradition, itwas decided that to extradite Mr Curtis would be oppressive.2 It was declared unders 45(4) of the Extradition Act 1999 that Mr Curtis was not eligible for surrender toAustralia. There were parallel judicial review proceedings, and Mr Curtis would havebeen successful in those proceedings for much the same reasons as in the surrenderproceedings, but it was not necessary to make any judicial review orders given hissuccess on surrender.[2] Mr Hoskin for Mr Curtis has now invited the Court to award costs in Mr Curtis'favour. He relies first on the Costs in Criminal Cases Act 1967 and alternatively onr 53 of the Court of Appeal (Civil) Rules 2005 (the Rules). There was initially someresistance by the Commonwealth of Australia to the existence of jurisdiction to ordercosts in this case.[3] However, the position was clarified by Ms Hogan, counsel forthe Commonwealth of Australia, who stated that it was not arguing for a novelapproach in the area of costs in civil appeals. In her written submission on costs sherecognised that it was orthodox to award some costs for a civil appeal, and that therewas jurisdiction to make an award of costs, at least under the Rules. The oppositionwas based on the Court's discretion not to award costs, rather than any jurisdictionalissue, at least in the civil area. In contrast Mr Hoskin for Mr Curtis argued that costscould be ordered under the Costs in Criminal Cases Act, as well as under the Rules.1 Curtis v Commonwealth of Australia [2018] NZCA 603.2 At [134]–[137].Costs under the Court of Appeal (Civil) Rules 2005[4] Rule 4(1) provides:4 Application of rules(1) These rules apply to all proceedings of the Court, except proceedingsto which the Court of Appeal (Criminal) Rules 2001 apply.(Emphasis added.)[5] The Court of Appeal (Criminal) Rules 2001, set out procedures for theprosecution of criminal appeals. They make no provisions for extradition cases anddo not apply to the substantive appeal. Rule 4(1) creates a clear distinction betweenappeals from criminal cases, and all other cases. Therefore, under r 4(1), the civilregime applies.[6] These proceedings had more of the character of civil proceedings than criminalproceedings. There were no charges laid in New Zealand, and the civil onus andstandard applied and not the criminal onus and standard. There were none of theformalities of a criminal trial, and limited cross-examination. The case had many ofthe characteristics of a civil trial.[7] Moreover, the hearing before us involved the judicial review claim as much asthe surrender issue, (although because Mr Curtis won on the surrender point no orderswere required under the judicial review proceeding). The successful judicial reviewproceedings in themselves would have warranted an order for costs under r 53A(1)(a)of the Rules.Should a costs order have been made?[8] Ms Hogan opposed the Court exercising its discretion to make any significantcosts order. She emphasised that the Extradition Act does not provide for an award ofcosts, and that the extradition was sought on behalf of the Commonwealth of Australiaby the New Zealand Police pursuant to a reciprocal agreement between the countries.As a consequence, the costs of the litigation had been borne by the New Zealandtaxpayer. If there was a costs award it could have a chilling effect on the extraditionregime. It was also argued that the appeal concerned a matter of public interest andthat the Commonwealth of Australia acted reasonably in the conduct of the appeal,and for that reason costs should not be ordered.[9] Under r 53F(e) the Court can refuse to make an order for costs or reduce itwhere the appeal concerned a matter of public interest and the party opposing costsacted reasonably in the conduct of the appeal. We accept that the Commonwealth ofAustralia acted in good faith in seeking extradition. We accept that there is the publicinterest in supporting comity between closely aligned countries such as Australia andNew Zealand, and the related general interest in honouring extradition treaties andbringing complaints in each country to trial. Nevertheless, the extradition proceedingfailed, and for reasons arising primarily from delay by the Commonwealth ofAustralia's authorities.[10] The relief sought is personal from the point of view of Mr Curtis.The particular events with which he is charged are of a private nature, and theimmediate impact would have been on him personally and only him. Extraditionwould have affected his life immediately. If it had been granted he would have losthis liberty for an indeterminate period, and would have had to leave his home and goto Australia, where the Australian authorities would have sought to hold him in custodypending trial. There was no public interest from his point of view, but a severe risk ofdisruption and imprisonment, at least for the short term.[11] Ultimately it may be, as is submitted by the Commonwealth of Australia, thatthe New Zealand public purse has funded both the prosecution and the defence of thisappeal. However, it is not an uncommon for there to be disputes between bodies thatare funded by the New Zealand taxpayer. Despite that, each such body will havespecific funds allocated and financial caps and restraints. They can be expected topursue all legitimate avenues for the recovery of expended funds.[12] We are told by Mr Hoskin that the Commissioner of Legal Services(the Commissioner) does wish him to pursue a costs order in favour of Mr Curtis.Costs orders in these circumstances between entities funded by the taxpayer, are notmeaningless. Recoveries may increase available funds. We are mindful also that thereshould be costs consequences where there are failings by public bodies which resultin an individual suffering adverse consequences, to help ensure that such failings aremore strenuously guarded against in future.[13] We conclude that this is not a case where no costs order should be madebecause these are extradition proceedings. We do not think that such public interestas exists can outweigh the starting point set out in r 53A(1)(a) that the party who failsshould pay the costs of the party who succeeds.The effect of legal aid[14] Mr Curtis has been granted legal aid, and his legal costs have been paid bythe Commissioner under the Legal Services Act 2011.[15] While under s 45(2) of the Legal Services Act an order for costs cannot bemade against a legally aided party unless there are exceptional circumstances, the samegeneral exemption is not made for costs in favour of a legally aided person. The LegalServices Act does not prohibit Mr Curtis from seeking costs, even though he is inreceipt of legal aid. If Parliament had intended such a prohibition it would have saidso in the legislation, when it gave an unsuccessful legally aided person a specificprotection. It did not do so.[16] Rule 53A(1)(f) states that an award of costs "should not exceed the costsincurred by the party claiming costs". Has Mr Curtis "incurred" any costs when theyare being paid as legal aid by the Commissioner of Legal Services? Mr Curtis has notpaid any legal costs himself.[17] The Legal Services Act provides at s 18(2) that every grant of legal aid issubject to a condition that the aided person must pay to the Legal ServicesCommissioner a specified amount calculated in accordance with s 21. Under s 34(1)amounts payable to the Commissioner may be recovered as a debt due. Under s 36(1)the proceeds of proceedings to which a grant of legal aid relates are subject to a chargein favour of the Commissioner for the amount of the repayment under the grant.Under s 41 an aided person must take all steps necessary to enforce a judgment torecover the proceeds of proceedings. A recipient of legal aid is therefore to be liablein whole or in part to pay for the costs of counsel, and will incur an obligation tothe Commissioner to pay them.[18] Two letters granting Mr Curtis legal aid were produced to us, and prescribedrepayment amounts. They stated that the amounts were a debt of Mr Curtis.The figures appear to be less than the total amount claimed by Mr Curtis.[19] In our view the provisions of the Legal Services Act mean that Mr Curtis has"incurred" a liability for costs. His debt is not to his counsel, but to the Commissioner.However it was a cost incurred by him in defending the extradition application.We agree with the view expressed by Randerson J in P v Minister of Immigration thatthe legislative policy of the Legal Services Act is that the expenditure incurred bythe taxpayer in legal aid should be recovered whenever it is lawful and practical to doso.3 There has been expenditure here on the legal costs of this appeal. It can berecovered at least in part from Mr Curtis. He has incurred a debt.[20] Further, we do not think that the award of costs should be limited to that partof the legal aid for which Mr Curtis has a debt. Rule 53A is stated to be subject to the"overriding discretion" to award costs in r 53. The Court of Appeal may, likethe High Court, as part of this overriding discretion, make costs orders in favour ofnon-parties.4 This is made clear by r 53E(3)(d), which provides that a court may ordera person to pay indemnity costs if "the person in whose favour the order of costs ismade was not a party to the appeal and has acted reasonably in relation to it".5This rule signifies that non-party costs orders are contemplated. The Commissionercan be such a party.[21] We are satisfied that a recipient of legal aid can, under the Rules, recover costspaid by the Commissioner. We note this conclusion has been reached withoutargument in another extradition case where the person whose extradition was soughtsucceeded, and obtained a costs order.63 P v Minister of Immigration (1999) 13 PRNZ 370 at 371.4 Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [18].5 Murren v Schaffer [2018] NZCA 318, (2018) 24 PRNZ 285 at [50].6 Kim v Minister of Justice [2016] NZHC 3086.[22] The quantum should be according to the Court of Appeal scale. Costs shouldbe scale costs or the amount paid out by the Commissioner for the appeal, whicheveris the lesser figure. Thus costs should not exceed scale, or (if they are less), the amountpaid for legal services.[23] In the light of our decision that proper costs can be ordered under Rules, we donot need to determine Mr Hoskin's application for costs under the Costs in CriminalCases Act. Any costs award under that out of date Act would not exceed the costsawarded under the civil regime, which as we have set out has a more naturalapplication to these proceedings.[24] Costs sought by counsel for Mr Curtis, paid by Legal Services, total$35,929.51. It is not clear to us whether that amount will exceed or be less than scalecosts. We frame our order so that the costs payable are the lesser of scale costs or theamount paid for Mr Curtis by Legal Services.Result[25] The Commonwealth of Australia is to pay Mr Curtis' scale costs on a band Abasis and usual disbursements, providing that the amount should not exceed theamount paid by Legal Services to Mr Curtis' counsel for the appeal.Solicitors:Crown Solicitor, Manukau for Respondent in CA234/2017 and Second Respondent in CA539/2017