VAIHU V A-G COSTS HC AK CIV 2005-404-002096

VAIHU V A-G COSTS HC AK CIV 2005-404-002096 11 October 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-002096IN THE MATTER OF an application for Leave to Appeal to the Court of Appeal BETWEEN MATINI VAIHU Appellant AND THE ATTORNEY-GENERAL SUED IN RESPECT OF THE ACTS OF THE NEW ZEALAND POLICE Respondent Hearing: On the papers Appearances: JA Sutton and PM Webb for Appellant J Foster for Respondent Judgment: 11 October 2006JUDGMENT (No.2) OF COOPER J ON COSTSThis judgment was delivered by Justice Cooper on 11 October 2006 at 12.30 p.m., pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: Sinisa Law, PO Box 22853, Otahuhu Crown Law Office, PO Box 2858, Wellington Copy to: JA Sutton, PO Box 276167, Manukau[1] In my judgment delivered on 3 August 2006 I granted leave to the appellant to appeal to the Court of Appeal from the judgment of Ellen France J in this matter. Leave was required, because the appeal to the Court of Appeal would be a second appeal in respect of a claim for damages under s 9 of the New Zealand Bill of Rights Act 1990 originally advanced in the District Court. [2] Having granted leave for the reasons set out in my judgment, I indicated that if there was any issue as to costs that could not be resolved, I would receive memoranda on that subject from counsel. Memoranda have been filed and I have now considered them. [3] The appellant has sought costs on an indemnity basis. Mr Sutton referred to decisions of this Court and of the District Court to support a proposition that because the matter involves a successful claim for damages under the New Zealand Bill of Rights, indemnity costs should for that reason be granted. The respondent opposes that approach, and maintains that costs should be payable in accordance with the scale of costs for Category 2B claims. [4] The cases upon which the appellant relies (including Harris v Attorney- General (HC MAS CP7/96, 23 July 1999, Durie J and Archbold v Attorney-General[2000] NZAC 563) imply that because of the nature of damages claims under the New Zealand Bill of Rights, where they are successful the Courts should ensure that the plaintiffs whose rights have been breached are not deprived of the compensation to which they are entitled by having to meet significant legal costs out of their own pockets. [5] In the present case, the appellant is legally aided, and Mr Sutton makes the point that if indemnity costs are not awarded this will effectively reduce any award of damages to which he might ultimately be held entitled. [6] As will be apparent from a reading of my judgment of 3 August 2006, the appellant succeeded in the District Court. Blackie DCJ awarded him $10,000 for the breach of s 9 of the New Zealand Bill of Rights Act 1990 which he held had occurred. However, in the High Court Ellen France J held that Blackie DCJ hadbeen wrong to conclude that s 9 had been breached and she allowed the respondent's appeal. [7] In deciding that leave should be granted for the matter to be pursued in the Court of Appeal, I have not, of course, decided that Ellen France J's decision was incorrect. In a case like the present, the Court grants leave for a second appeal not because of any conclusion that the judgment from which it is sought to appeal was wrong, but because the appellant has raised issues which are arguable and of sufficient importance to the public interest to justify a second appeal. [8] In the circumstances, it is not appropriate to approach the question of costs on the basis that the appellant has succeeded on the substantive issues, resolution of which must await the decision of the Court of Appeal. [9] Further, in the present case, although the appellant succeeded in the District Court, the question of whether leave should be granted to appeal to the Court of Appeal was not clear cut and the relevant issues were responsibly argued by counsel for the respondent. In the circumstances, I can see no reason to apply any approach other than that of applying the normal principles set out in Rule 47 of the High Court Rules for the determination of costs. [10] Counsel for the respondent has not disagreed with that approach, in the event that the claim for indemnity costs is declined. However, Mr Sutton's calculation was that, applying Category 2B, $4,800 would then be payable together with disbursements. [11] Counsel for the respondent submits that the proper calculation of such costs results in a sum of $2,560. Her calculation appears correct to me, on the basis that Mr Sutton's quantum of $4,800 includes items relating to the preparation of documents in fact filed by the respondent and, in one case, in relation to an amended application for leave to appeal. The amended application was made because, as counsel agreed in a joint memorandum filed on 21 February 2006, that was necessary in order to "specify more closely" the respects in which it was said Ellen France J's decision was incorrect.[12] In the circumstances, I direct that on the application for leave to appeal, the appellant is to be paid the sum of $2,560, together with the disbursements set out in Schedule 1 to his memorandum dated 16 August 2006.