DENIZE v THE ATTORNEY GENERAL ON BEHALF OF THE CHIEF EXECUTIVE OF MINISTRY OF SOCIAL DEVELOPMENT [in relation to costs] [2020] NZHC 3215

DENIZE v THE ATTORNEY GENERAL ON BEHALF OF THE CHIEF EXECUTIVE OF MINISTRY OFSOCIAL DEVELOPMENT [in relation to costs] [2020] NZHC 3215 [7 December 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV 2020-488-000046[2020] NZHC 3215UNDER THE Judicial Review Procedure Act 2016; Part 30of the High Court RulesIN THE MATTER OF An application for Judicial ReviewBETWEEN MEGAN DENIZEApplicantAND THE ATTORNEY GENERAL ON BEHALFOF THE CHIEF EXECUTIVE OFMINISTRY OF SOCIAL DEVELOPMENTRespondentHearing: On the papersCounsel: Applicant Self-RepresentedJ K Gorman & S P R Conway for the RespondentJudgment: 7 December 2020JUDGMENT OF VAN BOHEMEN Jin relation to costsThis judgment was delivered by me on 07 December 2020 at 3.00pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Crown Law Office, WellingtonCopy to:ApplicantIntroduction[1] On 17 July 2020, Megan Denize applied to review a decision taken by theMinistry of Social Development (MSD) on 10 June 2020 not to a refer a decision ittook on 29 October 2019 regarding Ms Denize's benefit entitlement to the BenefitReview Committee (BRC).[2] At a telephone conference on 15 October 2020, Ms Denize, who is self-represented, and Crown counsel for the Attorney-General on behalf of the ChiefExecutive advised that the issue that had led to the proceeding had been resolved andthe Chief Executive of the Ministry of Social Development had agreed to refer thedecision on Ms Denize's benefit entitlement to the BRC. However, the parties hadbeen unable to agree costs. I asked the parties to file submissions.1[3] In the event, Ms Denize filed three memoranda, dated 22 October 2020,5 November 2020 and 19 November 2020. Crown counsel also filed threememoranda, dated 29 October 2020, 9 November 2020 and 17 November 2020.[4] Given that the total amount at issue is under $3,400.00, the amount of effortand time involved seems somewhat disproportionate. However, I recognise thatMs Denize has limited means and the issues are important to her.Relevant principles[5] Ms Denize is a lay litigant who represented herself in the proceeding.However, prior to filing the proceeding she obtained some legal advice. The mainissue in contention is whether Ms Denize can claim the cost of that advice and costsassociated with those costs. An aspect of that issue is whether the advice Ms Denizereceived was in relation her judicial review application or to an appeal she had madeto the Social Security Appeal Authority (SSAA).1 Megan Denize v Chief Executive of the Ministry of Social Development HC Whangarei CIV-2020-488-46, 15 October 2020 (Minute of van Bohemen J).[6] Litigants-in-person are not entitled to recover costs in New Zealand.2.However, litigants-in-person are entitled to "reasonable disbursements" in thediscretion of the Court,3 which may include sums paid to a solicitor for help inpreparing documents, preparing to appear and argue the case in person, as well asassociated travel costs.4 In Re Collier, the Court of Appeal held a "reasonably liberalapproach" should be taken to assessing and classifying reasonable disbursementsclaimed by litigants-in-person.5[7] A disbursement must be approved by the court as an expense paid or incurredfor the purposes of the proceeding;6 specific to the conduct of the proceeding;7reasonably necessary for the conduct of the proceeding;8 and reasonable in amount.9Ms Denize's claim[8] Ms Denize claims costs and disbursements totalling $3,332.47 as follows:(a) Four invoices for the services of a barrister:(i) Invoice dated 18 November 2019 for $1,000.00, titled "ReSSAA" with narration "For discussions with you and forreading decision and opening file ";(ii) Invoice dated 23 January 2020 for $300.00, titled "Re SSAA"with narration "For discussion re discovery and requirementsfor hearing before SSAA";2 This is the "primary rule" in McGuire v Secretary for Justice [2018] NZSC 116 at [88]. The lawis not settled as to whether this rule may be departed from in exceptional circumstances: theSupreme Court in McGuire left this question open in fn 42 of [55].3 Re Collier (A Bankrupt) [1996] 2 NZLR 428, (1996) 10 PRNZ 145 (CA) at 147.4 Knight v Veterinary Council of New Zealand HC Wellington CIV-2007-485-1300, 31 January2009; Working Capital Solutions Holdings Ltd v Pezaro [2014] NZHC 2480; Harrison v Keogh[2015] NZHC 3320.5 Above n 7.6 High Court Rules 2016, r 14.12(2)(a)(i); or, as provided in r 14.12(2)(a)(ii), of a class specified inr 14.12(2)(b).7 High Court Rules 2016, r 14.12(2)(b).8 High Court Rules 2016, r 14.12(2)(c).9 High Court Rules 2016, r 14.12(2)(d).(iii) Invoice dated 17 February 2020 for $500.00, titled "Re SSAA"with narration "For assisting you with preparing submissionsand for discussion with you and for attendance at conference"; and(iv) Invoice dated 11 March 2020 for $500.00, titled "Re SSAA"with narration "For assisting you with ongoing issues with theappeal process and for discussion re unreasonable demandsbeing made on you ";(b) $502.38 for travel and parking costs incurred in obtaining legal advice;and(c) $530.09 for service and binding fees and travel costs incurred in filingdocuments in the High Court.Crown counsels' position[9] Crown counsel accept Ms Denize's claim for $530.09 for service and bindingfees and travel costs incurred in filing documents in the High Court.[10] Crown counsel also accept that, in some circumstances, costs incurred by laylitigants in obtaining legal advice can be recoverable as reasonable disbursements.10However, they say that the costs for obtaining legal advice and the costs associatedwith obtaining that advice were incurred in relation to an appeal Ms Denize hadbrought to the SSAA and that costs in relation to that appeal should be addressed inaccordance with the SSAA's own, separate costs regime. They also say that the costswere all incurred before 10 June 2020, the date of the MSD decision that Ms Denisesought to review. They refer to High Court's decision in Sandilands v New ZealandLaw Society11 and say that the Court should take a precise, narrow approach to10 Citing Re Collier (A bankrupt), above n 3.11 Sandilands v New Zealand Law Society [2017] NZHC 2640 at [7].determining whether the invoices are for advice that is sufficiently specific to thequestions in the proceeding.12[11] Ms Denize contests Crown counsels' position and says that the legal advicewas all obtained after 29 October 2019, the date of the substantive decision at issue,was directly related to the subject matter of the proceeding and was relied on duringthe proceeding.Events leading to the proceeding[12] Ms Denize has been engaged with MSD since February 2018 when she appliedfor assistance after stopping work. The timeline of Ms Denize's engagement withMSD is as follows:• 1 February 2018 – Ms Denize applied to MSD for support.• 17 October 2018 – MSD declined Ms Denize's application.• 12 April 2019 – BRC upheld MSD decision to decline Ms Denize'sapplication.• 20 June 2019 – Ms Denize appealed MSD decision to SSAA.• July 2019 – MSD advised Ms Denize it had reviewed its earlier decisionand now accepted she was eligible for Jobseeker support and made apayment to reflect that decision. However, it also told her that herapplication for supplementary assistance was still outstanding andremained before the SSAA.• 29 October 2019 – MSD advised Ms Denize that she did not qualify forsupplementary assistance.12 Citing Knight v Veterinary Council of New Zealand HC Wellington CIV-2007-485-1300, 31 July2009 at [6].• 24 February 2020 – Ms Denize applied to have the decision of 29 October2019 referred to the BRC for review.• 10 June 2020 – MSD declined to refer the decision of 29 October 2019referred to the BRC for review.• 17 July 2020 - Ms Denize filed proceeding application to review MSD'sdecision of 10 June 2020.• 13 August 2020 – Ms Denize filed further judicial review proceeding inrelation to SSAA appeal.• 27 August 2020 – Brewer J stayed Ms Denize's appeal to the SSAApending resolution of further judicial proceeding.• 15 October 2020 – Ms Denize and Crown counsel informed the Court thatthe present proceeding had been resolved but for costs.Discussion[13] It is apparent from the above timeline that all Ms Denize's engagements withMSD, the BRC and the SSAA stemmed from her initial application on 1 February2018. Ms Denize's appeal to the SSAA was because her application had been declinedby MSD and by the BRC. That appeal was then partly overtaken by events whenMSD reconsidered its position and advised Ms Denize she was entitled to theJobseeker benefit.[14] Even though MSD had told Ms Denize that her appeal to the SSAA remainedon foot in relation to her entitlement to supplementary assistance, MSD againintervened and advised that Ms Denize was not entitled to that assistance. It was atthat point that Ms Denize sought and obtained legal advice. Ms Denize says the advicerelated to her wish to understand the respective jurisdictions of the SSAA and the BRC.Given what had happened up to that point, that is understandable and appropriate. Atthe same time, it is apparent from the narrations on some of the invoices that much ofthe advice also bore on the SSAA appeal process.[15] Even so, most of the legal advice was provided before 24 February 2020 whenMs Denize applied to have the decision of 29 October 2019 referred to the BRC forreview. It is reasonable to infer that the advice had a direct bearing on that application.It was as a result of that application that MSD made its decision of 10 June 2020declining to refer its decision of 29 October 2019 to the BRC. It was the decision of10 June 2020 that Ms Denize then sought to review.[16] Given that history, I am satisfied that the legal advice has a direct connectionto the proceeding and was an expense paid or incurred for the purposes of theproceeding, was reasonably necessary for the conduct of the proceeding, and wasreasonable in amount.[17] I am also satisfied that it is somewhat artificial to differentiate between theSSAA appeal process and Ms Denize's engagement with MSD and the BRC, andbetween costs relating to those processes since the processes are inter-related. That isdemonstrated by the fact that MSD twice intervened to make decisions that boredirectly on the appeal process, including its decision of 29 October 2019 which leddirectly to the decision of 10 June 2020.[18] For these reasons and having regard to the Court of Appeal's guidance inRe Collier13 that the Court should take a reasonably liberal approach, as was alsoemphasised in Sandilands,14 I consider that Ms Denize has made out her claim forcosts of $2,300 for obtaining legal advice and of $502.38 for travel and parking costsincurred in obtaining that advice.Order[19] I direct that the respondent pay the applicant disbursements of $3,332.47 as set13 Above n 3.14 Above n 4, at [3], [12]-[13].out in the applicant's memorandum of 22 October 2020.______________________G J van Bohemen J