High Court Cases 

High Court Auckland M 1101-SW00
16 & 18 October 2000; 2 February 2001
Nicholson J

Judicial review - proceedings without any foundation - costs - whether order for payment of costs should be made against counsel and solicitors

Law Practitioners - proceedings without any foundation - costs - whether order for payment of costs should be made against counsel and solicitors

The facts are fully set out in the headnote to M v Refugee Status Appeals Authority (High Court Auckland, M 1101-SW00, 28 November 2000, Nicholson J).

Held:

1.    Had the Attorney-General sought a costs order in respect of the plaintiff's current lawyers the court would have awarded sanction costs of $4,000 against the plaintiff's current counsel and $1,000 against the plaintiff's current solicitor.  However, no order for costs would be made as this was the first time that such a situation had arisen on the dismissal of a review application in respect of a decision of the Refugee Status Appeals Authority (see para [5]).

Harley v McDonald [1999] 3 NZLR 545 (CA) referred to.

No order for costs made

Other cases mentioned in judgment

[no other cases were mentioned]

Counsel

C Tennet for the plaintiff
MA Woolford for the defendants

[Editorial note: The substantive decision delivered by Nicholson J on 28 November 2000 is reported elsewhere on this page]

NICHOLSON J [1] In my 28 November 2000 judgment, I said that the application for review was unfounded and bereft of any merit and that this seemed to be an appropriate case in which to order the payment of costs by the plaintiff and/or his lawyers.  I invited counsel for the Attorney-General to file a memorandum advising whether the Attorney-General considered that this was an appropriate case in which to order that the plaintiff and/or his current lawyers pay costs.  I gave a right of response.

[2] Mr Woolford, counsel for the Attorney-General, has filed a memorandum in which he advised that he had received instructions to make an application for costs against the plaintiff.  The Attorney-General's actual costs and disbursements including GST were $5,088.94.

[3] In his memorandum in response Mr C Tennet, counsel for the plaintiff, advised that the plaintiff has no assets, is unable to work and cannot claim a benefit.  The plaintiff was granted legal aid of $6,750 and this has been exhausted.

[4] It is clear that because of the plaintiff's financial situation a costs order against him would be futile and accordingly I do not make such an order.

[5] Had the Attorney-General sought a costs order in respect of the plaintiff's current lawyers then, for the reasons in my judgment and applying the principles stated by the Court of Appeal in Harley v McDonald [1999] 3 NZLR 545, I would have awarded sanction costs of $4,000 against the plaintiff's current counsel and $1,000 against the plaintiff's current solicitor.  I have considered whether to make such orders even though the Attorney-General has not sought them but as, so far as I am aware, this is the first time that such a situation has arisen on the dismissal of a review application in respect of a decision of the Refugee Status Appeals Authority, I have decided not to.

[6] Accordingly, I make no costs orders in this proceeding.

Solicitors for the plaintiff: Marshall Bird & Curtis (Auckland)
Solicitors for the defendants: Crown Solicitor (Auckland)