Commissioner of Police v Hsu

[2012] NZHC 2092

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-008494 [2012] NZHC 2092

IN THE MATTER OF     the Criminal Proceeds (Recovery) Act 2009

BETWEEN  COMMISSIONER OF POLICE Applicant

ANDFENG CHIH HSU Respondent

Hearing:         15 August 2012

Counsel:         M Harborow for Applicant

V Withy for Respondent

Judgment:      15 August 2012

INTERLOCUTORY COSTS JUDGMENT OF ASHER J

Solicitors/Counsel:

Crown Solicitor, DX CP24063, Auckland 1140. Email:  [e-mail]

V Withy, C/- R Mansfield, PO Box 2674, Shortland Street, Auckland 1140. Email:  [e-mail]

COMMISSIONER OF POLICE V FENG CHIH HSU HC AK CIV-2009-404-008494 [15 August 2012]

[1]      In the Duty Judge list today, the Commissioner of Police seeks costs on a timetable extension sought on behalf of the defendant Feng Chih Hsu.  Mr Hsu has been convicted of charges involving serious drug offending and was sentenced to

17 years’ imprisonment on 4 May 2012.  At that time it was indicated to Toogood J, who was presiding, that a memorandum seeking consent timetable directions for forfeiture proceedings would be filed shortly.   In fact, as I understand is accepted, there were approaches to counsel by Meredith Connell acting for the Commissioner, but they were unable to obtain a response and to achieve the anticipated agreement on directions.

[2]      Ultimately on 12  June 2012 a memorandum was filed in  which  counsel advised the Court that the Commissioner was unable to get a response to a draft consent memorandum that had been provided, despite reminders on two occasions.

[3]      It seems that shortly after the filing of that memorandum counsel did confer and the consequence was a consent memorandum filed on 18 June 2012 in which the following directions were made:

(a)       A detailed notice of opposition to be filed by Monday 18 June 2012.

Such notice is to clearly identify the grounds of opposition; (b)         Affidavits in opposition to be filed by Monday 30 July 2012;

(c)       A mention hearing to be scheduled thereafter to determine whether a substantive hearing is required.

Toogood J made those directions on 19 June 2012.

[4]      These directions have not been complied with by the respondent.  Ultimately, a short form notice of opposition was filed on 10 August 2012.  No affidavits have as yet been filed.  The respondent has sought timetable directions for an extension of one month so that the time for the filing of affidavits is extended to 12 September

2012.  The matter is then to be listed in the Duty Judge list for call.  This extension is not objected to by the Commissioner.

[5]      However, Mr Harborow for the Commissioner seeks costs on the basis that the Commissioner has incurred extra legal fees because of the need to:

(a)       continue to approach counsel to try and reach agreed directions after

4 May 2012;

(b)file the memorandum  of 12  June 2012  unilaterally explaining the delay;

(c)      renegotiate the timetable and draft a new consent memorandum which was filed on 18 June 2012;

(d)pursue  compliance  with  the  respondent  when  the  timetable  was breached and then receive the respondent’s memorandum and ultimately agree a new timetable.

There has also been the appearance today which has been solely to seek costs as the

Commissioner has agreed to the extension of the timetable.

[6]      Ms Withy for the respondent opposes the making of any order for costs.  She submits there is no jurisdiction to make such an order as it does not fall within any of the specified procedures for which there is a cost allocation in the High Court Rules. She also submits that there has been no serious failure or dereliction of duty which would warrant the making of an order for costs.

[7]      It is said in the memorandum seeking costs that the Court might wish to consider awarding costs against counsel for the respondent rather than against the respondent.   I say immediately that I am not prepared to do that.  There does not appear to have been any action on the part of counsel involving any failure or breach of  duty  of  sufficient  moment  to  warrant  that  extreme  course  of  action.    I  am, however, prepared to make a modest order of costs in favour of the Commissioner.

[8]      There  is  undoubtedly  jurisdiction  to  do  so.    The  Court  has  a  specific jurisdiction to make order as to costs at its discretion under r 14.1 of the High Court Rules.  It also has an inherent jurisdiction to do so.  The fact that a procedure does

not fall within one of the procedures expressly provided for in the Schedule to the Rules does not preclude the Court from making an order.   Where there have been timetable failures by a party which have put the other side to inconvenience and cost it is entirely orthodox for cost orders to be made.  Forfeiture proceedings under s 10 of the Criminal Proceeds (Recovery) Act 2009 are, as counsel accept, civil proceedings and fall within the High Court Rules.

[9]      The default involved in not meeting the timetable directions does not require detailed analysis.   Ms Withy accepts that there has been a combination of administrative errors and pressures of workload which have led to the failure to meet the directions.   Directions are made for a purpose and the Court does not lightly accept a failure to meet directions. The parties that suffer delay and costs are entitled to expect a robust response from the Court which will take into account the extra expenses arising from the delay.

[10]     I am informed the delays here involve approximately two hours of extra work for the lawyers for the Commissioner.  There does not appear to be any other issue I need  to  take  into  account,  such  as  disadvantage  arising  from  the  delay.    The forfeiture  proceedings  have  been  in  existence  since  2010.    There  is  nothing indicating extreme urgency.

[11]     In the circumstances I think a cost award that reflects the two hours of extra work resulting from the breaches of the timetable directions is necessary.  I fix costs at $400.

Result

[12]     The respondent is to pay the applicant costs of $400 in respect of the breach of the directions orders arising from the hearing of 4 May 2012.

……………………………..

Asher J