Hrrt 9/09 between evgeny orlov plaintiff and ministry of justice

Decision No. 28/09
Reference No. HRRT 9/09
BETWEEN EVGENY ORLOV
Plaintiff
AND MINISTRY OF JUSTICE

First Defendant

AND ATTORNEY-GENERAL
Second Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

Mr R D C Hindle Chairperson

Ms D A Clapshaw Member

Mr A A Hall Member

WRITTEN SUBMISSIONS FROM:
Mr E Orlov, plaintiff.

Ms T Warburton & Ms M Coleman for defendants.

DATE OF DECISION: 14 October 2009
DECISION

(COSTS)

1. 
   On 21 July 2009 we dismissed the majority of the claims brought by the plaintiff in this matter, and struck out those that remained: See Orlov v Ministry of Justice & Attorney-General [2009] NZHRRT 19 (‘the substantive decision’). The successful defendants have applied for costs. Their application is opposed.
   
   
   
2. 
   The Tribunal’s power to award costs in this case comes under s.92L(1) of the Human Rights Act 1993 (‘the Act’). Subsection (2) includes a list of considerations that the Tribunal may take into account, essentially relating to the way in which the parties have conducted themselves during the investigation of a complaint by the Human Rights Commission. However neither the plaintiff or the defendants have raised any particular features of this case to be evaluated with reference to s.92L(2). We therefore approach the application for costs as one which engages the general discretion in s.92L(1).
   
   
   
3. 
   The approach to awarding costs that was identified by the Tribunal in Herron v Speirs Group [2006] NZHRRT 29, and the earlier decision of Horne v Bryant (No.2) [2003] NZHRRT 36, has been endorsed by the High Court in Herron v Speirs Group (Auckland High Court, CIV 2006-404-002277, 30 October 2008 per Andrews J, J A Binns and D A Clapshaw).
   
   The claim for costs
   
   
   
4. 
   We are informed that the defendants’ actual costs and disbursements came to a total of $17,824.45 (excluding the costs of preparing argument regarding costs). Of that sum, there were disbursements of $1,562.45 including the costs incurred because counsel had to travel from Wellington to Auckland to attend the hearing that took place on 1 July 2009.
   
   
   
5. 
   The defendants do not ask for an indemnity award of costs. Instead, it is suggested that the award should be fixed having regard to a number of disparate factors including previous awards in the Tribunal, the sums that would have been awarded had the District Court Scale of costs applied, and in particular various aspects of the plaintiff’s conduct in the matter which are said to justify an award of costs greater than it might otherwise be. For example, the defendants submit:
   
   
   
   1. 
      In the substantive decision the Tribunal commented that there had been no answer to the defendant’s straightforward submission, namely that the plaintiff’s claims were barred by s.79(3) of the Act. The plaintiff’s claim ought not to have been brought, and certainly not by a member of the legal profession. Furthermore, with respect to the two aspects of the plaintiff’s claim that were not formally dismissed, the Tribunal had no hesitation in striking the matters out on the basis that the claims were inadequate;
      
   
   
   
   1. 
      Although not asking for an indemnity award, the defendants drew attention to the decision of the Court of Appeal in Bradbury v Westpac Banking Corporation [2009] NZCA 234 in which indemnity costs were found to be justified because the practitioner running the case in that matter ought to have known better;
      
   
   
   
   1. 
      The defendants also noted that in Bradbury the Court of Appeal indicated that, at least in the High Court, a scale based on recovery of two thirds of reasonable costs should be regarded as within the ‘modern mainstream’. It was acknowledged that different considerations may apply in the Tribunal, to which Parliament has entrusted certain powers in part to promote access to justice for litigants who might otherwise be deterred by costs (see Herron v Speirs Group, supra at para [3]). Even so, the defendants say that the point does not apply in this case since Parliament has also provided the plaintiff with a procedure for his complaints in the form of the Judicial Conduct Commissioner. We are informed that the plaintiff was advised by the Human Rights Commission in this case to refer his matters to the Judicial Conduct Commissioner’s office, but that he declined to so and insisted on pursuing the matters in this Tribunal instead;
      
   
   
   
   1. 
      Even taking a generous view of the plaintiff’s decision to initiate the proceedings, the defendants say that once their statement of reply was received he should certainly have realised that the claim could not succeed, and he ought not to have pursued it as he did;
      
   
   
   
   1. 
      The defendants are critical of the lengthy and voluminous materials that were filed at the hearing, and also contend that the claim itself was unnecessarily lengthy and difficult to follow;
      
   
   
   
   1. 
      Furthermore, this was an application to dismiss and/or strike out of a kind that is often (although not always) carried out in this Tribunal on the papers without a viva voce hearing. However the plaintiff insisted that there should be a viva voce hearing in this case, thus putting the defendants to the additional time and disbursements incurred when instructed counsel had to travel from Wellington to Auckland in order to attend;
      
   
   
   
   1. 
      The defendants were critical of the extravagant nature of some of the allegations made against the Judge whose conduct was at issue; and
      
   
   
   
   1. 
      While accepting that the application of the Court Scales are no more than a guide in any case in this Tribunal, the defendants noted that that had the District Court Scale applied (and assessing the matter as a Category 3B case) they would have been entitled to costs of $7,980, excluding disbursements. Assessed on a Category 2B basis, the award would have been $5,376 (again excluding disbursements).
      
   
   
   
6. 
   All in all, the defendants ask for an award of $13,532.45, comprising:
   
   
   
   1. 
      Costs calculated according to Schedule 3B of the District Court Scale of $7,980 uplifted by 50% to reflect the matters noted above, and
      
   
   
   
   1. 
      All disbursements, amounting to $1,562.45.
      
   
   
   
   The plaintiff’s response
   
   
   
7. 
   The thrust of the plaintiff’s response is that his claim was brought under the Act so that, since it engaged broad issues relating to human rights as he (the plaintiff) submits it did, any costs should be awarded at the lower end of any scale. He has drawn attention to the discussion about costs in the context of New Zealand Bill of Rights Act 1990 (‘BORA’) in cases such as Attorney-General v Udompun [2005] 3 NZLR 204 and Wong v Registrar of the Auckland High Court & The Attorney-General (Auckland High Court, CIV 2007-404-005292, 3 March 2008 per Duffy J).
   
   
   
8. 
   In the Wong case Duffy J summarised the relevant propositions as under BORA:

   “ … the following principles emerge. First, the fact that a claim raises public law issues will not of itself justify a departure from the usual approach to costs awards. Secondly, a departure from the usual approach will be justified in cases where the claim results in clarifying an important area of public law, and is one where the litigant has no personal interest at stake. Thirdly, BORA claims are somewhat different from other public law claims when it comes to costs awards in that a departure from the usual approach to costs awards may occur even though the claimant will usually have a personal interest at stake …” (para [24])

   The Judge went to note that the reason for treating BORA claims in that way is because they can provide clarification on legal issues of public importance, and they can also strengthen and uphold respect for the rights in BORA : “This is why the Courts recognise that costs regimes should not be permitted to discourage bona fide BORA claimants from bringing their claims.” (para [25])
   
   
   

9. 
   The present case was brought under the Human Rights Act rather than BORA. As a matter of first impression, we doubt that affects the applicability of the approach that has been taken in respect of BORA cases much, since both the Human Rights Act and BORA are human rights-related enactments. Certainly we are willing to give the plaintiff the benefit of any doubt about that proposition in this case, and to approach our assessment of costs here on the footing that the principles identified by Duffy J are directly relevant.
   
   
   
10. 
    Having said that, it is clear that there was a significant element of self-interest by the plaintiff in this case in bringing the claim as he did. Perhaps more importantly, we do not accept that the litigation either clarified any matter of public importance, or that it was ever really likely to do so. In the end, the result on the substantive issue was no more than an unremarkable application of the uncontroversial wording of s.79(3) of the Act to the circumstances alleged. With respect to the two elements of the claim that were struck out rather than dismissed, again the outcome was nothing more than an orthodox application of the principle that pleadings must be sufficiently clear to give fair notice of the claim being put forward.
    
    
    
11. 
    Even accepting the general proposition that human-rights related litigation can have the advantage of clarifying points of public interest, we do not see this case as being an example. The circumstances are certainly far removed from those in (for example) the Udompun and the Wong cases noted above.
    
    
    
12. 
    Beyond that, it is convenient to note and discuss some of the more detailed submissions made by the plaintiff as follows:
    
    
    
    1. 
       The plaintiff submitted that “The Crown’s sole argument was simply that there was no jurisdiction for the HRRT to even consider this human rights matter”.
       
    
    

    The fact that the Crown’s argument was so simple is hardly a point in favour of the plaintiff when it comes to assessing costs. There is, in our view, merit in the defendants’ argument that the answer to the substance of the plaintiff’s claim was clearly spelled out in s.79(3) of the Act, and the plaintiff should have known better than to bring the claim at all;

    
    
    
    
    1. 
       The plaintiff also argued that there has not yet been any determination as to whether or not there was discrimination against him, and that “… it may well be the case that the plaintiff will be held to be discriminated against in the future”.
       
    
    

    This argument overlooks the fact that the plaintiff brought a claim to the Tribunal which – in substance - the Tribunal did not and does not have jurisdiction to deal with. Even if it is a fact that there are other avenues open to the plaintiff such as - for example - the Office of the Judicial Conduct Commissioner (although we suspect there may be an issue as to the extent of the Commissioner’s powers to deal with a discrimination claim), that hardly acts as a factor in the plaintiff’s favour when it comes to assessing costs for the claim that he did bring in a forum that was not open to him;

    
    
    
    
    1. 
       The plaintiff submitted that he ‘responsibly’ asked the Tribunal to refer his matter to the High Court on the issue of whether or not there was a remedy under the Human Rights Act (the plaintiff is also critical of the fact that the Crown has not addressed this point in its submissions).
       
    
    

    This point is completely empty. It is true that the plaintiff had suggested before the hearing that the issue might be referred to the High Court in the first instance. However by the time the hearing in the Tribunal took place, he agreed that it was appropriate for the Tribunal to deal with the matter. His application to refer the matter to the High Court for first instance determination was not pursued (rightly, in our assessment – see, e.g., the discussion in Director of Human Rights Proceeedings v The Catholic Church for New Zealand [2006] NZHRRT 22 esp. at para’s [16] to [29]). More importantly, having conceded the point at the hearing in the Tribunal the plaintiff cannot now be heard to complain that the defendants have not addressed it.

    
    
    
    
13. 
    All in all, the plaintiff appears to accept the inevitability that costs will follow the event, and that there will be an award against him. The general thrust of his argument is that the award should be kept at a modest level.
    
    Assessment
    
    
    
14. 
    This case exemplifies the difficulties of assessing costs in a Tribunal in which there is no scale comparable to those of the High Court and District Court. The Court scales can be a guide, but no more than that. At the same time there is an obvious need for consistency across the awards made by the Tribunal in cases that are more or less comparable.
    
    
    
15. 
    There was a survey of awards included in the Chairperson’s minority decision in Anderson v Claymore Management Limited & Barclay [2005] NZHRRT 31. The survey has been referred to several times in argument in subsequent cases, but it is now a little outdated. It is time to update it. Table A at the end of this decision lists therefore all costs awards that have been made by the Tribunal since 2003 in cases in which there has been a hearing.
    
    
    
16. 
    Table A reflects the reality that every case is different. We also repeat the point that was made by the Chairperson in Anderson (supra), namely that there is nothing like a daily rate for hearings in the Tribunal. Even so, it may be noted that the average of awards made on a reasonable contribution basis per day of hearing lies somewhere near $3,750.
    
    
    
17. 
    If nothing else Table A demonstrates that an award of just over $13,500 as suggested by the Crown would be well out of line with other costs awards by the Tribunal in recent years. This was, after all, just a one day hearing of legal argument. Affidavits were referred to, but no witnesses were called or examined. The suggested award is also well beyond what would be available under the District Court scale. We regard it as being too high.
    
    
    
18. 
    In our assessment the defendants are entitled to an award that reflects the reality that the plaintiff’s claim was never a good one, and even that as a lawyer the plaintiff should probably have known better than to press on with it. On the other side, and although it is not a very strong point in this particular case, there is something of relevance in the plaintiff’s point about costs that are awarded in an human rights-related context.
    
    
    
19. 
    Weighing up these and the various other factors that have been already been addressed above, we approach the matter as follows:
    
    
    
    1. 
       The figure of around $3,750 or thereabouts is an appropriate starting point for the hearing day that was;
       
    
    
    
    1. 
       To that we think it appropriate to add the sum of $3,000 to reflect the various concerns and criticisms made by the defendants and to which we have already referred, although that figure is somewhat tempered by the plaintiff’s point that his claim was brought by under the Human Rights Act (and, more importantly, that here we are assessing costs in the context of a Tribunal proceeding and not in the Courts);
       
    
    
    
    1. 
       We also add an allowance for the disbursements that were incurred by the defendants because counsel was required to travel to Auckland to attend the hearing. That is because we agree with the defendants that this case could and should have been dealt with ‘on the papers’, and that a viva voce hearing was not really needed. The additional amount under this heading is $663.12 for the airfares, and $218.75 for taxis; a rounded total of say $880.
       
    
    
    
20. 
    Overall we fix our award in this case at $7,500.
    
    Award
    
    
    
21. 
    Pursuant to s.92L of the Human Rights Act 1993 we award costs (which are to be payable by the plaintiff to the defendants) in the sum of $7,500. This sum is intended to be all-inclusive and so encompasses the costs of both of the two defendants, all disbursements and any GST, and the costs of and incidental to the argument about costs.

    _______________ _______________ _______________

    Mr R D C Hindle Ms D A Clapshaw Mr A A Hall

    Chairperson Member Member

    
    

Table A

Costs awarded by Human Rights Review Tribunal since 1 January 2003

(Cases where there has been a hearing)

Decision	Notes	Award
Jans v Winter [2003] NZHRRT 21	Privacy Act access to information case – files lost by defendant before hearing – for that and other reasons relating to the way the litigation had been conducted by the defendant the Tribunal directed defendant to pay all of the plaintiff’s actual and reasonable expenses amounting to about $1,800 (although note award not specifically quantified). One day hearing. Costs award affirmed on appeal to High Court: Winter v Jans (Hamilton High Court, CIV 2003-419-854, 6 April 2004 per Paterson J)	(say) $1,800 (27 June 2003)
Ram v KMart NZ [2003] NZHRRT 27	Unsuccessful Privacy Act Principle 11 case - two-day hearing	$3,000 (6 August 2003)
CD v Hawkes Bay District Health Board [2003] NZHRRT 31	Privacy Act case – access to records, but requests predated the Act – plaintiff warned before hearing that no basis for claim - four-day hearing – actual costs incurred by defendant exceeded $25,000, including costs of expert evidence that was required.	$10,000 (29 October 2003)
Cobb v W & H Newspapers Ltd [2003] NZHRRT 36	Two-day hearing – alleged age discrimination - costs awarded on reasonable contribution basis.	$3,000 (30 October 2003)
Horne v Bryant [2003] NZHRRT 36	Plaintiff abandoned claim on eve of substantive hearing – defendant’s preparation complete – actual costs of $6,682.50 had been incurred (excluding costs on the costs argument) – Tribunal awarded reasonable contribution of $4,400 uplifted by $1,000 to reflect last minute abandonment of claim, plus a further $1,000 in respect of the argument on costs (which included issues relating to the particular position of the Director of Human Rights Proceedings).	$6,400 (18 December 2003)
Ngapera v Reddick [2004] NZHRRT 5	Undefended sexual harassment claim – hearing proceeded as a formal proof, lasting less than a day.	$2,000 (15 March 2004)
Shiu v Mohammed Nasev [2004] NZHRRT 17	One-day hearing of claim of sexual harassment under the Human Rights Act – costs awarded to plaintiff who obtained declaration but no damages.	$2,000 (10 May 2004)
Plumtree v Attorney-General [2004] NZHRRT 25	Privacy Act claim relating to army records – plaintiff successful but represented self – award of costs to cover out of pocket expenses only.	$1,269.64 (24 May 2004)
Williams v Department of Corrections [2004] NZHRRT 28	Two-day hearing; note the award was for all that was claimed, because the amount claimed was for disbursements and only $525 on account of legal costs for the whole of the two day hearing, and all attendances before that.	$1,529.86 (30 June 2004)
Tahiata v Nicholson & Anor [2004] NZHRRT 29	Award after two day hearing about alleged racial and other discrimination, but note the award also includes costs in respect of various ‘on the papers’ determinations as well – actual costs of $51,331.91 had been incurred.	$8,000 (8 July 2004)
Henderson v CIR [2004] NZHRRT 42	Effectively a three-day hearing, although the days were spread over several months – actual costs incurred by the successful defendant were in excess of $62,500 – note Tribunal declined to apply the District Court Scale.	$12,500 (13 August 2004)
Marino v Department of Corrections [2004] NZHRRT 46	One-day hearing – award effectively assessed as reasonable contribution only.	$1,990 (13 September 2004)
DP v A (No.2) [2004] NZHRRT 51	Three-day hearing under Health and Disability Commissioner Act – had been preceded by issues relating to name suppression as well – total costs incurred by plaintiff were $30,386.	$12,500 (22 November 2004)
DP v DG (Fan) [2005] NZHRRT 18	Award made in respect of hearings under Health and Disability Commissioner Act 1994 that lasted for a total of 8 days, although note two cases were heard at the same time and there was a mix of success and failure, including a decision by the plaintiff to abandon one particular claim at the hearing - total costs incurred by plaintiff in respect of successful claim had been in excess of $52,000.	$22,000 (28 June 2005)
Yeo v McDowell [2006] NZHRRT 11	One-day hearing of privacy claim - a pre-hearing offer of settlement by plaintiff ought to have been accepted by defendants – circumstances close to justifying full indemnity award - plaintiff legally aided with actual costs over $4,000.	$2,500 (29 March 2006)
Smith v Air New Zealand [2006] NZHRRT 13	Four-day hearing of alleged discrimination under the Human Rights Act – note issues as to whether this was a ‘test case’; also issues in relation to part-success and cost warnings – total costs incurred by defendant in excess of $60,000 – costs of $15,000 awarded with an earlier award of $1500 for costs on an interlocutory application confirmed, giving a total of $16,500 in the litigation – note costs award upheld on appeal see Smith v Air New Zealand (Wellington High Court, CIV 2005-485-2198, 15 December 2008 per Clifford J).	$16,500 (4 April 2006)
Louw v Auckland District Health Board [2006] NZHRRT 27	Matter set down for hearing, but plaintiff failed to appear at hearing and thereby effectively abandoned claim – actual costs had been incurred by defendant in excess of $12,000 - award of $4,500 for preparation etc was increased by $2,000 to reflect the way the case had been abandoned.	$6,500 (16 June 2006)
Stevenson v Hastings District Council [2006] NZHRRT 32	One-day hearing under Privacy Act – total costs incurred by successful defendant of $20,544.57 – reasonable contribution only	$3,500 (21 August 2006)
Lehmann v CanWest Radioworks Ltd [2006] NZHRRT 47	Two and a half-day hearing including written submissions filed after the hearing as well - also note that one claim under one of the Privacy Principles was effectively abandoned by the plaintiff at the hearing – actual costs incurred by defendant in excess of $26,850 – significant interlocutory processes before hearing but plaintiff not to responsible for those – plaintiff did succeed on one point at issue.	$7,500 (12 December 2006)
EFG v Commissioner of Police [2006] NZHRRT 48	The plaintiff had represented himself in the proceedings, with the only question being as to his out-of-pocket expenses for the hearing itself. In fact the Police had paid many of those expenses in order to have the hearing at a venue that was convenient to the Police. The hearing itself occupied five days but for these reasons the award was effectively limited to reimbursement of a few outstanding out of pocket expenses.	$1,000 (21 December 2006)
Herron v Speirs Group Ltd [2006] NZHRRT 49	Costs of $3,000 awarded on a reasonable contribution basis to the date of a ‘without prejudice save as to costs’ offer, and then a further $32,503.82 on a full indemnity basis for the period thereafter. Two day hearing in the Tribunal. On appeal, the Tribunal’s approach to costs was substantially upheld, but the High Court adjusted the total sum downwards so that it was limited to 85% of costs after the ‘without prejudice save as to costs’ offer (note the figure in this table is the adjusted High Court figure).	$30,628 (21 December 2006)

Director of Health & Disability Proceedings v Peters [2007] NZHRRT 1	This Health and Disability Commissioner Act case occupied four days of hearing. The defendant was legally aided, the successful plaintiff asked the Tribunal to assess what costs would have been awarded in the absence of legal aid.		$15,000 (19 January 2007)
Director of Human Rights Proceedings v Police [2007] NZHRRT 9	Two-day hearing – case ‘unremarkable’ from a costs perspective.		$3,750 (21 May 2007)
Director of Proceedings under the Health & Disability Commissioner Act v Kaur [2007] NZHRRT 20	Two and a half-day hearing. The defendant was legally aided, but the Tribunal was asked to assess costs that would have been awarded had there been no legal aid.		$7,500 (19 October 2007)
Haydock v Gilligan Sheppard [2008] NZHRRT 2	Privacy Act claim - despite an early offer of settlement that was not made on a ‘without prejudice’ basis, the successful defendant did not ask for indemnity costs – there was however a significant issue as to whether and to what extent the plaintiff should be regarded as having been legally aided in the proceedings (and thus protected by s.40 of the Legal Services Act 2000 as it stood before amendment in March 2007) – hearing took four days although there had been significant interlocutories and the hearing was spread over a long period.		$20,000 (5 February 2008)
Director of Human Rights Proceedings v Police [2008] NZHRRT 5	Privacy issues – 2 day hearing – total costs incurred by defendant were $12,351.39		$3,250 (31 March 2008)
Director of Proceedings under Health & Disability Commissioner Act v Mogridge [2008] NZHRRT 9	The case involved the hearing of several different claims against the same defendant – five days – preceded by various pre-hearing issues that had required determination – total costs incurred by the plaintiff had come to $55,168.25.		$22,500 (9 May 2008)
Reid v NZ Fire Service Commission and Anor. [2008] NZHRRT 18	Privacy Act claim - two days of hearing, one at which the plaintiff was not present. Costs were sought by the successful first defendant only; total costs incurred of just over $11,000.		$3,000 (14 August 2008)
Director of Proceedings under the Health & Disability Commissioner Act v O’Malley [2009] NZHRRT 2	This was a matter dealt with by way of formal proof - defendant did not appear at the scheduled hearing - there had, however, been a number of preliminary arguments which delayed the matter and compounded costs.		$10,000 (2 February 2009)
Holmes v Police [2009] NZHRRT 20	Hearing took less than a day, but there had been a pre-hearing “without prejudice save as to costs” offer which ought to have been accepted.		$5,500 (30 July 2009)
Kaiser v Ministry of Agriculture and Forestry & Ors [2009] NZHRRT 22	One day hearing (plaintiff attended by telephone) – costs actually incurred by defendants in this part of the case $13,421.23 – case required significant attendances both before and after hearing.		$6,000 (5 August 2009)
Kaiser v Department of Labour [2009] NZHRRT 23	Same hearing as above – essentially same considerations, but actual costs incurred by Labour Department were only $9,200.		$4,500 (4 September 2009)
World Vision NZ Trust v Tamu [2009] NZHRRT 25.	Formal proof of a claim to enforce a settlement agreement under s.92B(4) of the Human Rights Act – held, the plaintiff should never have been put to the trouble of having to commence proceedings to enforce the settlement – solicitor/client costs of $7,469.30 awarded		$7,469.30 (5 October 2009)
Table stated up to 5 October 2009

HRRT