McGuire v Secretary for Justice

[2019] NZHC 39

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-485-761

[2019] NZHC 39

BETWEEN

JEREMY JAMES McGUIRE

Plaintiff

AND

SECRETARY FOR JUSTICE

First Defendant

AND

NEW ZEALAND LAW SOCIETY

Second Defendant

Hearing:

2 February 2017

28 February 2017 (on the papers)

Appearances:

Mr McGuire in Person

G Melvin and M McKillop for the First Defendant P N Collins for the Second Defendant

Judgment:

30 January 2019

JUDGMENT OF CULL J

[1]    Following the Supreme Court decision in this matter,1 Mr McGuire filed a memorandum, noting that as a result of the Supreme Court’s ruling, lawyer-litigants were now generally entitled to costs on successful pleadings. Subsequently, the Crown filed a memorandum seeking 2B costs in accordance with the Court of Appeal orders.2 In accordance with r 14.2(1)(a) of the High Court Rules 2016, the Crown seeks 2B costs of $8,005.56.

[2]    Mr McGuire filed a further memorandum dated 11 December 2018, pointing out that the Supreme Court changed the law as a result of this case, reversing the Court

1      McGuire v Secretary for Justice [2018] NZSC 116.

2      McGuire v Secretary for Justice [2018] NZCA 37, [2018] 3 NZLR 71 at [77].

McGUIRE v SECRETARY FOR JUSTICE [2019] NZHC 39 [30 January 2019]

of Appeal’s decision in Joint Action Funding Ltd v Eichelbaum and allowing lawyer- litigants to be awarded costs.3 He submits that this is “classic public interest litigation” and submits it is unfair that he is now required to pay costs on such an important case. He submits further that the respondents should not be awarded costs when he was successful in the Court of Appeal.

[3]    Mr McGuire then filed a further memorandum dated the same day, attaching the minute of the Supreme Court, in which the Court clarified that the effect of the Court’s judgment is that the Court of Appeal’s judgment including the orders as to costs remains in effect.4 The Supreme Court noted that it dismissed the appellant’s appeal but made no order for costs, and declined to recall its judgment to vary the orders made in respect of the Court of Appeal’s costs.

[4]    The Crown has responded, stating that the Supreme Court minute does not indicate that Mr McGuire is liable only for costs in the Court of Appeal. The Crown submits that a 2B order for costs should be made by the High Court. The Crown argues that although there was some public interest element to Mr McGuire’s second appeal as to the costs of lawyer-litigants, there is no public interest element in his underlying judicial review. The Crown says the claim that was struck out fundamentally related to Mr McGuire’s private interests in obtaining approval to provide legal aid services.

Discussion

[5]    There are two issues which arose by way of appeal both to the Court of Appeal and the Supreme Court. The first was the issue of whether self-represented lawyer- litigants are entitled to costs, and the second is whether s 83 of the Legal Aid Services Act 2011 operated as a bar to Mr McGuire’s application for relief in his judicial review application against the Legal Aid Authority.

[6]    The Supreme Court overturned the Court of Appeal’s ruling that s 83 should be read in a mandatory way. The Court noted the unusual wording of the section and left open the question of whether s 83 is capable of any meaning other than that applied

3      Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249, [2018] 2 NZLR 70.

4      McGuire v Secretary for Justice SC22/2018, 6 December 2018 (Minute).

to it by the Court of Appeal.5 This ruling is of public interest, as it affects those seeking approval as lawyers eligible for legal aid, and those clients that they represent.

[7]    Mr McGuire has been unsuccessful in defending his claim for relief in respect of the 2013 Legal Aid Agency decision. It was held to be misconceived and has been struck out. Simultaneously, however, he has been successful in overturning the Court of Appeal’s decision with regard to self-represented lawyer-litigants being eligible for costs.

[8]    In the circumstances, I do not think that an award of costs should be made against Mr McGuire. I note the Supreme Court has made no order for costs in dismissing Mr McGuire’s appeal. I consider that the Supreme Court’s ruling in respect of s 83 of the Legal Aid Services Act is an important one involving access to justice issues, together with the fact that at the same hearing, the issue of eligibility for lawyer-litigant costs, which the Crown concedes has a public interest element, was successfully pursued by Mr McGuire. I make no order for costs in the circumstances. The effect is that costs lie where they fall.

Cull J

5      McGuire, above n 4, at [45].