Hager v Attorney-General

• Jurisdiction: New Zealand
• Judge: Clifford J
• Judgment Date: 08 November 2016
• Neutral Citation: [2016] NZHC 2672
• Docket Number: CIV-2014-485-11344
• Court: High Court
• Date: 08 November 2016

Under the Judicature Amendment Act 1972, Part 30 of the High Court Rules, the Bill of Rights Act 1990, and the Search and Surveillance Act 2012

In the Matter of an application for judicial review

And in the Matter of a search warrant issued by the District Court at Manukau on 30 September 2014

Between

Nicholas Alfred Hager

Applicant

and

Her Majesty's Attorney-General

First Respondent

The New Zealand Police

Second Respondent

The Manukau District Court

Third Respondent

[2016] NZHC 2672

CIV-2014-485-11344

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

Application for indemnity costs of $475,000 following a successful application for judicial review of the issuing of a warrant for search of the applicant's house, and the search conducted at that house — the first stage of the proceedings had dealt with declarations of illegality and the return of seized material, but the matter of New Zealand Bill of Rights Act 1990 damages was yet to be determined — whether an award of costs should be made before hearing the damages issue — if so, whether indemnity costs should be given.

Counsel:

On the papers

J G Miles QC, F E Geiringer and S J Price for Applicant

B Horsley and K Laurenson for First and Second Respondents

JUDGMENT OF Clifford J (COSTS)

Introduction

1 In these proceedings Mr Hager challenges the lawfulness of a search warrant issued by the District Court at Manukau on 30 September 2014 allowing the police to search his home. He also challenges the search of his home that the police carried out pursuant to that wan-ant, in his absence, on 2 October 2014.

2 By way of relief, Mr Hager seeks declarations of illegality, the return of the seized material and New Zealand Bill of Rights Act 1990 (NZBORA) damages.

3 In my judgment of 17 December 2015 I dealt with the first two issues of relief, finding in Mr Hager's favour. 1 By agreement between the parties, Mr Hager's claim for NZBORA damages is to be heard subsequently and separately.

4 The question of costs was not addressed in the hearing before me, and I did not deal with it in my judgment.

5 Mr Hager has now applied for indemnity costs totalling $475,082.78. In the alternative Mr Hager argues that, if the Court considers scale costs appropriate, they should be determined on a Category 3 basis, with costs celiified for second and third counsel and with certain steps being calculated on a Band C basis. Calculated on the suggested basis, Mr Hager asks for an award of scale costs of $232,672.78.

6 Two basic issues arise. First, whether an award of costs should be made now. If so, on what basis should it be made?

Costs now?

7 I am satisfied that, in the circumstances of this case, it is appropriate that there be an award of costs now, at the end of the first stage of these proceedings. The issues of legality argued before me raise conceptually distinct issues from those which will be considered in terms of Mr Hager's claim for NZBORA damages, even recognising that his claim for those damages will rest on my finding of illegality. Moreover, as matters transpired and as my judgment shows, I based that finding on my assessment of the implications of the Crown's duty of candour when applying for a search wan-ant, as it relates to the recognition of journalistic privilege now found in the Search and Surveillance Act 2012 and...