JIA & ANOR v AUCKLAND COUNCIL [2020] NZHC 570

JIA & ANOR v AUCKLAND COUNCIL [2020] NZHC 570 [20 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000184[2020] NZHC 570BETWEEN WENZHI JIA and JIANYING ZHANGAppellantsAND AUCKLAND COUNCILRespondentHearing: (On the papers)Counsel: Appellants in PersonB Watts for the RespondentJudgment: 20 March 2020[COSTS] JUDGMENT OF MOORE JThis judgment was delivered by me on 20 March 2020 at 2:00 pm.Registrar/ Deputy RegistrarDate:Introduction[1] On 22 May 2018, I dismissed the appellants' appeals against convictions andsentences for offences against the Resource Management Act 1991 ("the RMA").1[2] The respondent, Auckland Council, now applies for an award of costs in theamount of $14,070.50 against the appellants in this Court under the Costs in CriminalCases Act 1967.Background[3] The tortuous history of this matter is relevant to the present application, and soI set it out at some length.[4] I note at the outset that this matter was first called in the District Court in July2014. It was not until 17 March 2017 that the appellants were convicted on chargeslaid under s 9(3) and s 322(1)(a)(i), by way of ss 338(1)(a) and 338(1)(c), of the RMA.2These charges related to the appellants' unlawful use of a house as multi-residentialunits, contrary to the operant district plan, and in Mr Zhang's case, his failure tocomply with abatement notices issued in respect of that unlawful use. The delay inthe trial of the charges related to a convoluted pre-trail admissibility dispute, which Inote further below.[5] On 2 May 2017, the appellants were ordered to pay fines of $15,000 in respectof the breaches of the district plan, and Mr Zhang a further $5,000 fine in respect ofthe abatement notice.3[6] On 30 May 2017, the appellants gave notice of their intention to appeal againstconviction and sentence to this Court. As noted, on 22 May 2018 I dismissed theappeals, holding there was no risk that a miscarriage of justice had occurred, and thatno error could be identified in the Judge's sentence.1 Zhang v Auckland Council [2018] NZHC 1133.2 Auckland Council v Zhang [2017] NZDC 4596.3 Auckland Council v Zhang [2017] NZDC 8208.[7] That nearly a year passed between the notice of appeal being issued and theappeal being dismissed is relevant on the present application. A number of pre-hearingissues arose during that time. I note the following particulars.[8] When the appeal was first called on 9 June 2017, Lang J noted the appellants'notice of appeal purported to be an application for leave to appeal, when it was in facta notice of general appeal. The Judge noted that three of the many grounds pleadedwere plainly misconceived, such as the appellants' claim the Judge had erred by notpunishing Council officers. Also, issue was taken with the Judge having found asearch warrant was validly issued. That matter, which was the protracted pre-trialadmissibility dispute referred to above, had been resolved in the District Court as earlyas 2015 and had been the subject of an unsuccessful first appeal and further leaveapplication in 2016.4[9] Lang J directed the appellants to redraft their points on appeal by 21 June 2017.The appellants requested an extension, citing language difficulties. This was notserved on the Council, which became aware of the issue only when a Minute wasissued on 21 June 2017 granting the extension.[10] The amended points were finally filed on 4 July 2017. Again, this was notserved on the Council, which received a copy only at the next callover. In fairness,the points of appeal had been amended. But, as I noted, they remained "difficult (andin some places impossible) to follow."5[11] Lang J set the appeal down for a one-day hearing on 4 September 2017 anddirected that the appellants would need to file any further evidence they wished to fileby 21 August 2017. Submissions and further evidence was filed by that date. Noneof the further evidence was in the form of an affidavit or affirmation however, contraryto Lang J's directions. Instead, a folder containing hundreds of pages was filed withthe Court. Again, neither this bundle, nor the appellants' submissions, were served onthe Council. When asked by the Registrar to confirm service on 21 August 2017, the4 Auckland Council v Zhang [2015] NZDC 20392; Zhang v Auckland Council [2016] NZHC 962;and Zhang v Auckland Council [2016] NZCA 332.5 Above n 1 at [69].appellants appear not to have responded. The Registrar was required to scan and emailthe documents to the Council in an incremental manner.[12] The 4 September 2017 hearing was adjourned by the Court and rescheduledfor 11 December 2017. At that hearing, I declined to admit the portion of the bundleamounting to new evidence on the appeal because of the appellants' non-compliancewith Lang J's directions, insufficient freshness, and irrelevance.6 I also note that thevoluminous bundle, while organised, was difficult to navigate. It was similar in thatsense to the appellants' submissions, of which I noted that:7"[] the appellants' 68-page memorandum of submissions [does] not followthe points on appeal in a structured or comprehensible way, and appears toraise certain new grounds, while others are all but incomprehensible."[13] The one-day hearing was dominated by Mr Jia's submissions, Mr Jia speakinguntil 3.30 pm. During his submissions, Mr Jia produced a number of documents notincluded in the bundle, none of which was in sworn or affirmed form. Counsel for theCouncil was required to present his submissions in the small amount of timeremaining. Ms Zhang was unable to speak at all. I gave the appellants until 2 February2018 to file further submissions, but no further submissions were received.[14] As suggested by their prolixity, and as reflected in my reasons for judgment,Mr Jia's submissions on the appeal against conviction were unfocused and often ill-conceived. Most conspicuous in this regard are Mr Jia's complaints about the searchwarrant and his complaints the Council officers ought to have been punished forsearching the property.8 Also notable are the appellant's misconceptions regarding therelevance of the fact the Council had not proven the illegal units were tenanted;9 afallacious argument regarding existing use rights;10 a diversion regarding the factMs Zhang is not the registered proprietor;11 a baseless and immaterial claim Mr Jiawas a tenant and not the landlord; and scurrilous accusations of bias against the DistrictCourt Judge.6 At [54].7 At [69].8 See [118] and [123].9 See [77]-[78].10 See [99].11 At [113]-[114].[15] In contrast, the appellants' appeal against sentence was simple in construction,being founded on the simple logic that, as they were not in fact guilty, no sentenceought to have been imposed.[16] As noted, on 22 May 2018 I dismissed the appeal. On 18 June 2018 theappellants applied to the Court of Appeal for leave to appeal. Counsel for the Counciladvised they were content with consideration of the present costs application beingdeferred until the application was disposed of, which it was, by means of a dismissal,on 16 April 2019.Applicable principles[17] On the disposition of an appeal pursuant to pt 6 of the Criminal Procedure Act2011 ("the Act"), such as here, the Court may make any order as to costs it thinks fit.12This is subject to the operation of s 13 of the Act, and the Costs in Criminal CasesRegulations 1987 ("the Regulations") made thereunder, which limits the heads of costsand the maximum scales of costs that may be ordered to be paid under the Act.13[18] There is no presumption in respect of whether costs should be granted, withthe applicant for costs required to demonstrate good grounds as to why the Courtshould exercise its discretion to award costs in the applicant's favour.14[19] Also pertinent, as it is relied on by the Crown, is s 8(5) of the Act, whichprovides that where:"[] the court which determines an appeal is of opinion that the appealincludes any frivolous or vexatious matter, it may, if it thinks fit, irrespectiveof the result of the appeal, order that the whole or any part of the costs of anyparty to the proceedings in disputing the frivolous or vexatious matter shall bepaid by the party who raised the frivolous or vexatious matter."Submissions[20] For the Council, Mr Watts relies on s 8(5) of the Act to apply for the award ofthe full sum of the Council's costs, given the appellants' disregard for procedural12 Costs in Criminal Cases Act 1967, s 8(1).13 Sections 13(1) and (3); Costs in Criminal Cases Regulations 1987, reg 3.14 R v Leitch CA195/97, 22 December 1997.directions and requirements and the frivolous nature of the arguments made on appeal.While accepting the appellants are self-represented, and have encountered languagedifficulties, Mr Watts submits the appellants have put the Council to considerableunnecessary expense through their failure to observe directions to clarify their caseand ensure material is presented in proper form. They should not, he submits, beinsulated from an adverse costs award merely by reason of their self-representation.His point, as I understand it, is that the appellants' conduct has put this case outset theusual run of appeals brought by litigants-in-person.[21] The respondents have not provided submissions in reply to the costsapplication, with which they were served on 17 July 2018. Their sole comment on thematter, in an email sent directly to a compliance officer at Auckland Council on 18July 2018, has been to make specious accusations against Mr Watts.[22] On 10 October, the Registry advised the appellants that, if no response wasreceived, the matter would be dealt with on the basis no response would beforthcoming. On 11 October 2018, the appellants advised the Registry they wereattempting to obtain representation. Nothing appears to have come of those efforts,and no submissions have been received from the respondents.Discussion[23] An immediate difficulty with the Council's position, not squarely addressed byMr Watts in submissions, is s 13. Together, these appear to limit the maximum scaleof costs that may be ordered to be paid under the Act to those provided for in theRegulations, subject to the provision of s 13(3) that costs in excess of scale can beawarded where that is desirable, "having regard to the special difficulty, complexity,or importance of the case."[24] Perhaps anticipating this difficulty, Mr Watts has referred me to the decision asto costs of Asher J in Green v Watercare Services Ltd. There, while noting the Courtsare generally "conservative"15 in ordering costs against defendants in criminalproceedings, the Judge considered it appropriate to make a "modest" order for costs15 Green v Watercare Services Ltd [2012] NZHC 2889 at [under the Act in the sum of $5,452, as against actual costs of $20,000.16 This wassome $5,000 above the scale provided for under the Regulations. The Judgeconsidered this appropriate as the appellants':17"[] appeal was singularly lacking in substantive merit. As I observed in mydecision, Mr Green's explanations lacked credibility and were indeed wereextraordinary. The legal points that were raised were technical, and whilesome of them warranted a detailed legal response, they had no connection tothe merits of the case.There were also procedural failures on the part of the appellants. Theappellants were slow in filing their grounds of appeal which were ultimatelyout of time. [] There was then a late notice application by the appellants tocall further evidence which was unsuccessful.I am satisfied that there were two conferences required to deal with theappellants' slow responses to the timetable orders. Some of the points raisedon the appeal bordered on the frivolous."[25] As demonstrated by the course taken by this proceeding, as set out above,similar comments could well be made in respect of Mr Jia's conduct here.[26] Asher J did not expressly consider the scheme of ss 8(5) and 13, though plainlyfelt able to depart from the scale established under the Regulations. One mightconjecture the Judge considered the appellants' conduct represented a "specialdifficulty" for the respondents, such that an award of costs was warranted. On theother hand, the words "special difficulty" appear in a list of words, the clear effect ofwhich is to mean that "difficulty" there refers to a case of abnormal complexity orgravity because of the technicality, breadth, or moment of the issues involved. That,it might fairly be said, is far from the case here.[27] A better answer is suggested by Winkelmann J's decision in Blumhardt vRodney District Council.18 The appeal there had been prosecuted in a similarlydelinquent manner to that seen here and was ultimately dismissed for non-prosecution.The salient point for present purposes is that, while rejecting other aspects of therespondent Council's position in seeking costs, Winkelmann J appeared to accept asubmission that s 8(5) is not expressed as being "subject to any regulations made under16 At [4].17 At [6]-[8].18 Blumhardt v Rodney District Council HC Auckland CRI-2007-404-157, 10 April 2008.this Act", unlike others under the Act. It would follow that s 13 does not operate toapply the capping effect of the regulations to cases in which s 8(5) is engagedfollowing the determination of an appeal. That is consistent with the subject matter ofthe provision.[28] That being the case, the question is whether costs should be awarded. AsWinkelmann and Asher JJ both noted, the Courts ought generally to be conservativein awarding costs against defendants. The fact the appellants here are self-representedand have experienced language difficulties makes caution all the more appropriate.[29] On the other hand, the appellants have become increasingly querulous in theirattitude towards this proceeding and have put the Council to even greater expense andinconvenience than might ordinarily be expected from litigants-in-person. Theirappeal plainly contained frivolous matter, and also vexatious material insofar as theycontinued to attempt to relitigate the search warrant issue following their unsuccessfulappeal. There is force in Mr Watts' submission that the Council should not be madeto bear its costs in having successfully undertaken these enforcement activities, giventhis intransigence. Section 8(5) certainly anticipates that sometimes being appropriate.[30] Yet, I observe the sum sought by the Council is considerably less modest thanthat Asher J awarded to Watercare. Perhaps recognising the Courts' typicallyconservative approach in these cases, Watercare had sought only about one quarter ofits actual costs, limiting its claim to only $5,000 above scale; the same amountrecovered in the District Court. Here, the Council's scale costs would be $452, asagainst actual costs of $14,070.50: an excess of $13,618.50.[31] Like other regulations providing for the payment of fees,19 the Regulationshave plainly failed to keep pace with increases in the cost of legal services, not tomention inflation. Nonetheless, the modest rates under the Regulations align with theCourts' appropriately conservative approach to these cases.19 See Powell J's recent comment on this issue in relation to counsel for children in High Courtappeals in Re An Application for Review of a Registrar's Decision by Gunn [2019] NZHC 3413.Conclusion and result[32] I consider the appropriate outcome, given all of the above, to be to award theCouncil costs in the sum of $7,261.25 only (excluding GST), being a suitably"modest" sum arrived at by adding to the Council's scale entitlement half the excessclaimed.[33] Order accordingly.Moore JSolicitors:Meredith Connell, AucklandCopy to:The Appellants