Te Ua v Secretary for War Pensions

[2014] NZHC 1907

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON  REGISTRY

CIV 2014-485-000061 [2014] NZHC 1907

BETWEEN

WALTER HORTON TE UA

Plaintiff

LYNETTE STANKOVICH Second Plaintiff

AND

SECRETARY FOR WAR PENSIONS First Defendant

ATTORNEY-GENERAL Second Defendant

Hearing:	(On papers)
Counsel:	GDS Taylor and M Freeman for Plaintiffs A Williams and R Garden for Defendants
Judgment:	13 August 2014

COSTS JUDGMENT OF WHATA J

[1]      Father Te Ua sought judicial review of various actions by Veteran Affairs New Zealand (VANZ).  The pleadings included seven judicial review claims, four negligence claims and three alleged breaches of statutory duty.   I dismissed the breaches of statutory duty and negligence claims.  But I granted relief in relation to the second, third, fourth and seventh review claims.

[2]      I must now resolve the issue of costs.  Father Te Ua and Ms Stankovich seek the sum of $52,000 as costs.  The defendants submit that costs and disbursements

should lie where they fall.

TE UA v SECRETARY FOR WAR PENSIONS [2014] NZHC 1907 [13 August 2014]

[3]      The plaintiffs have been legally aided throughout and Mr Taylor says that this exposes  the  plaintiffs  to  a  claim  from  the  Legal  Services  Commissioner  for repayment of all or part of the total legal aid paid, in the sum of $53,444.11.

Assessment

[4]      Father Te Ua demonstrated that VANZ had not treated his applications with the requisite care and diligence to be expected in the circumstances.   This was manifested  by  (among  other  things)  inordinate  delay  in  progressing  and  then notifying decisions on his claims, depriving him of an opportunity to be heard in relation to adverse medical opinion, and then depriving Ms Stankovich of an entitlement to some compensation at least for the assistance she rendered to Father Te Ua for the purposes of his treatment.

[5]      The Crown, however, successfully defended the negligence and breaches of statutory duty claims and some of the review claims.   But I do not consider that provides a sufficient basis in terms of the rules1  to deprive the plaintiffs of their costs.  I think a proper balance of the relative success of the plaintiffs is a reduction in costs of 25%.2  The negligence and breach of statutory duty claims were ambitious and added disproportionate cost to the proceedings.

[6]      The quantum of the costs claimed is $52,000.   That has not been broken down for me in terms of the rules.   Rather than make that award at the outset I propose instead to grant costs on a 2B basis less 25%, together with disbursements as fixed by the Registrar.  If it is necessary to revert to me for the purposes of quantum,

the parties have leave to do so.

1      See  especially rr  14.1, 14.2(a)  and  see  Packing In  Ltd (in  Liquidation) v  Chilcott  (2003)

16 PRNZ 869 (CA).

2      Pursuant to r 14.7(d).

[7]      For  completeness,  the  fact  that  the  plaintiffs  are  legally  aided  has  not influenced my decision to grant costs.  I am not concerned about the source of the payment of costs;  only whether costs, properly incurred by the plaintiffs should be awarded in the circumstances of the case.3

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt

Crown Law, Wellington

3      Compare Willis v Attorney General HC Auckland CP11626/88, 14 March 1990.