Chapter 15 - Representation and other participants

Payment of costs

Section 99A provides the Court with certain powers to make orders as to payment of costs. The section is generally viewed as giving the Court discretion to make orders for payment of costs where the Attorney-General or Solicitor-General or any other person acts as an intervener or counsel assisting the court. However, there has been discussion in the cases as to whether it is limited to cases of interveners and counsel assisting the court, or whether it extends more widely.

The section states:

Costs where intervener or counsel assisting Court appears -

(1) Where the Attorney-General or the Solicitor-General or any other person appears in any civil proceedings or in any proceedings on any appeal and argues any question of law or of fact arising in the proceedings, the court may, subject to the provisions of any other Act, make such order as it thinks just—

(a) as to the payment by any party to the proceedings of the costs incurred by the Attorney-General or the Solicitor-General in so doing; or

(b) as to the payment by any party to the proceedings or out of public funds of the costs incurred by any other person in so doing; or

(c) as to the payment by the Attorney-General or the Solicitor-General or that other person of any costs incurred by any of those parties by reason of his so doing.

(2) Where the court makes an order pursuant to subsection (1)(b), the Registrar of the court shall forward a copy of the order to the chief executive of the Ministry of Justice who shall make the payment out of money appropriated by Parliament for the purpose.

In New Zealand Federation of Commercial Fishermen (Inc) v Ministry of Fisheries, the New Zealand Federation of Commercial Fishermen and others sought judicial review of a decision of the Minister of Fisheries relating to the total allowable catch for a particular area, claiming that it favoured recreational rather than commercial interests.536 The Fishing Council was joined as a respondent to represent recreational interests. It applied under section 99A of the Judicature Act 1908 for an order directing that its legal costs be paid out of public funds, on the basis that its involvement by way of evidence or submissions would probably benefit the court and that there was substantial public interest in the outcome.

The Court considered it doubtful whether there was jurisdiction under section 99A for such an award of costs, since the use of the words “other person” in section 99A(1) could mean that parties cannot apply for costs under this section, but should rather do so under the normal rules.537 While it did not decide the point, the Court considered the section was at least open to the interpretation that it is intended to apply only in favour of a non-party participant, most obviously a permitted intervener or amicus curiae:538

Such would make sense. A party can claim costs under normal Court rules…It is only a non-party who needs this special protection, or to be drawn specially within costs powers. Moreover, it would be curious if provisions restricting legal aid could be circumvented in this purely discretionary way. One doubts whether such was intended.

The Court noted that there is a difference between recognising a right of appearance, and directing that taxpayers fund that appearance.539

In this regard the Court differed from an earlier decision in New Zealand Fishing Industry Board v Attorney-General, in which Master Williams QC considered that, despite the title to section 99A, orders were not confined to persons appearing purely as interveners or counsel assisting the court.540

In Diagnostic Medlab Ltd v Auckland District Health Board, the Court agreed that section 99A appeared to relate only to non-parties, but observed that an intervener might well also be a party in terms of the costs rules in the High Court Rules.541

In El-Nemr v Accident Compensation Corporation, the plaintiff was unrepresented and applied for an order under rule 4.27(b) of the High Court Rules that the Court appoint a lawyer to represent him.542 He also sought for the lawyer to be paid out of public funds. The plaintiff had tried to apply for legal aid, but claimed that the lawyer he had consulted had refused to make the application.

Mallon J noted that to make an order that public funds be used, section 99A of the Judicature Act 1908 would need to be used. Her Honour found that this would not be appropriate, as it would have the effect of circumventing the legal aid scheme. In any event, the court did not consider that the case met the criteria for an order under section 99A.

In NZ Fishing Industry Board v Attorney-General, Master Williams QC also made the following observations about s 99A:543

(a)Orders will normally be confined to cases where there is a substantial public interest in the outcome of the litigation;

(b)Orders will normally be confined to proceedings where the Court’s consideration of the issues is likely to be materially assisted by evidence or submission or both on any question of law or fact arising in the proceedings from those representing a field of interest relevant to the proceedings beyond their private or personal viewpoint;

(c)Orders will normally be confined to assist those who are already parties to any particular proceeding or those who are appointed by this Court to represent a particular sectional interest.

Q57

Should s 99A be available only to interveners and counsel assisting, or should it also be available to parties? If the former, does the section require amendment?

New Zealand Federation of Commercial Fishermen (Inc) v Ministry of Fisheries [1996] 2 NZLR 230.

At 232.

At 232.

At 233.

New Zealand Fishing Industry Board v Attorney-General (1992) 6 PRNZ 500 (HC) at 504.

Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV 2006-404-4724, 13 June 2007.

El-Nemr v Accident Compensation Corporation HC Wellington CIV-2007-485-1970, 12 May 2009.

New Zealand Fishing Industry Board v Attorney-General (1992) 6 PRNZ 500 (HC) at 504.