SMITH V ATTORNEY-GENERAL AND ORS HC ROT CIV 2005-463-000169

SMITH V ATTORNEY-GENERAL AND ORS HC ROT CIV 2005-463-000169

The court ordered the proceedings struck out under Rule 478 for repeated disobedience and inordinate delay and, applying s40(5) of the Legal Services Act 2000, specified that had the plaintiff not been aided the award would have been costs on a 2B basis with such disbursements as the Registrar considers reasonable;...

Source-derived case information.

Citation
openlaw-fb5e9766_1ef1_4326_908d_2a700fc2a02b.pdf
Parties
Plaintiff: John Daniel Smith; First Defendant: Attorney-General; Second Defendant: Kim Ratapu; Third Defendant: Mark Van Kempen; Fourth Defendant: Max Spedding; Fifth Defendant: Benjamin Clifton; Sixth Defendant: Wallace Haumaha
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 June 2008
Procedural Posture
Civil (strike Out Application) / Hearing on Defendants' Application to Strike Out; Judgment Delivered
Outcome
Proceedings struck out; costs that would have been awarded against the aided plaintiff specified under s40(5) as 2B plus reasonable disbursements; indemnity costs declined
Legal Topics
Strike Out, Costs Orders, Legal Services Act 2000, Indemnity Costs, Delay and Non Compliance
Civil Procedure Costs Legal Aid Strike Out Costs Orders Legal Services Act 2000 Indemnity Costs Delay and Non Compliance

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Parties

John Daniel Smith

Plaintiff

Attorney-General

First Defendant

Kim Ratapu

Second Defendant

Mark Van Kempen

Third Defendant

Max Spedding

Fourth Defendant

Benjamin Clifton

Fifth Defendant

Wallace Haumaha

Sixth Defendant

Procedural Posture

Civil (strike Out Application) / Hearing on Defendants' Application to Strike Out; Judgment Delivered

Legal Issues

  1. 1 Whether the plaintiff's proceedings should be struck out for repeated non-compliance and inordinate delay
  2. 2 Whether costs should be awarded against an aided person and, if so, whether indemnity costs are appropriate under the High Court Rules
  3. 3 Whether the Legal Services Agency should be ordered or signalled to pay costs under s41 and the application of s40(5)

Ratio Decidendi

The court ordered the proceedings struck out under Rule 478 for repeated disobedience and inordinate delay and, applying s40(5) of the Legal Services Act 2000, specified that had the plaintiff not been aided the award would have been costs on a 2B basis with such disbursements as the Registrar considers reasonable; the court declined to award indemnity costs because there was no basis to conclude the proceedings were vexatious or frivolous and indemnity costs are exceptional, and refused to treat sending a "message" to the LSA as a legitimate costs consideration.

Court Disposition

Proceedings struck out; costs that would have been awarded against the aided plaintiff specified under s40(5) as 2B plus reasonable disbursements; indemnity costs declined

Orders

  • Proceeding struck out under High Court Rule 478
  • Pursuant to Legal Services Act 2000 s40(5), had the plaintiff not been an aided person costs would have been awarded on a 2B basis together with such disbursements as to the Registrar appear reasonable