MICHAEL MARINO v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZSC 148
The Court awarded costs to the appellant on the basis that costs follow the event, applying the Supreme Court's costs measure and allowing a $1,600 deduction for respondent's preparation, resulting in a costs award of $33,400 plus usual disbursements; the Court accepted that any payment is subject to the Legal...
Source-derived case information.
- Citation
- [2016] NZSC 148
- Parties
- Appellant: Michael Marino; Respondent: The Chief Executive of the Department of Corrections
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 8 November 2016
- Procedural Posture
- Civil Appeal to Supreme Court / Judgment on Appeal; Costs Reserved and Determined
- Outcome
- Appeal allowed; costs awarded to appellant; costs in lower courts to be set in light of this judgment
- Legal Topics
- Costs Award, Costs Scale and Quantum, Legal Services Commissioner Approval, Application of Court of Appeal Cost Rates
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Marino
Appellant
The Chief Executive of the Department of Corrections
Respondent
Procedural Posture
Civil Appeal to Supreme Court / Judgment on Appeal; Costs Reserved and Determined
Legal Issues
- 1 Whether costs should follow the event
- 2 Appropriate scale and quantum of costs in the Supreme Court
- 3 Whether to deduct for respondent's preparation on appeal
Ratio Decidendi
The Court awarded costs to the appellant on the basis that costs follow the event, applying the Supreme Court's costs measure and allowing a $1,600 deduction for respondent's preparation, resulting in a costs award of $33,400 plus usual disbursements; the Court accepted that any payment is subject to the Legal Services Commissioner's approval under the Legal Services Act 2011 and directed lower courts to set costs in light of this judgment.
Court Disposition
Appeal allowed; costs awarded to appellant; costs in lower courts to be set in light of this judgment
Orders
- Costs to a maximum of $33,400 plus usual disbursements awarded to the appellant
- Certified for second counsel
Full Case Text
Judgment text and source record
1 paragraphs
MICHAEL MARINO v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZSC 148 [8 November 2016]IN THE SUPREME COURT OF NEW ZEALANDSC 35/2016[2016] NZSC 148BETWEEN MICHAEL MARINOAppellantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 6 and 26 July 2016Court: Elias CJ, William Young, Glazebrook, Arnold and OʼRegan JJCounsel: D A Ewen and G K Edgeler for AppellantB J Horsley, D J Perkins and T P Westaway for RespondentJudgment: 8 November 2016JUDGMENT OF THE COURTA Costs to a maximum of $33,400 plus usual disbursements are awarded to the appellant. We certify for second counsel.B Costs in the courts below should be set by those courts in the light of this judgment (if not agreed).____________________________________________________________________REASONS[1] On 22 September 2016 this Court allowed Mr Marino's appeal. Costs werereserved.1[2] Mr Marino seeks costs on the appeal to this Court and in the courts below.The level of costs sought in this Court effectively equates to costs at Court of Appealrates.21 Booth v R [2016] NZSC 127 (Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ).2 As provided for in the Court of Appeal (Civil) Rules 2005, r 53C and sch 2. The rates are calculated on the basis of being two-thirds of actual daily rates: r 53C(3).[3] The Chief Executive accepts that costs should follow the event in this Court but submits that costs should be at the usual rate for this Court. Counsel suggests a reduction of $1,600 to reflect the fact that the Chief Executive prepared the case on appeal.[4] There is nothing to suggest that this appeal is different from other appeals heard by the Court. We therefore consider it appropriate to use the costs measure in this Court3 and to apply the deduction suggested by the Chief Executive for the preparation of the case on appeal. The normal costs award for two hearing days would be $35,000. With a deduction of $1,600 this means costs of $33,400.[5] The Chief Executive submits further that, as Mr Marino was legally aided and because under ss 99(2)(a) and 105 of the Legal Services Act 2011 the Legal Services Commissioner has to approve any payment to counsel, any costs awarded should be no more than the amount approved by the Commissioner up to a maximum of the costs award. This is because any costs awarded should not exceed the amount incurred. We accept this submission.[6] Costs in the courts below should be set in light of our judgment if they are not able to be agreed.Solicitors:Kerry Burroughs, Hamilton for AppellantCrown Law Office, Wellington for Respondent3 These rates are to be designed to be a reasonable contribution to costs and not full or indemnification costs: Prebble v Awatere Huata (No 2) [2005] NZSC 18, [2005] 2 NZLR 467 at [10].