Contents

Chapter 15
Other participants

Payment of costs

Introduction

15.48As noted above, input from an amicus curiae or an intervener may provide a number of benefits. It therefore seems only fair that, in appropriate situations, they be recompensed. Similarly, given their input may also extend the length of proceedings, which adds to the costs incurred by the parties, there also needs to be an ability for the parties to claim for the additional expense they face because of the presence of these other participants.

15.49In Issues Paper 29, the Commission noted these situations are dealt with by section 99A of the Judicature Act 1908,241  which is generally understood as allowing the court to order one of three things:
(a)Where the Attorney-General or Solicitor-General acts as intervener or counsel assisting the court, that the parties pay their costs in doing so;242
(b)Where any other person acts as intervener or counsel assisting the court, the parties or the public pay the costs of that person in doing so.243
(c)Where the Attorney-General, Solicitor-General or any other person acts as intervener or counsel assisting the court, they pay the costs incurred by the parties in them doing so.244
15.50However, there has been discussion as to whether section 99A goes wider than this, to enable the Court to order the payment of the costs of persons other than interveners or counsel assisting the court out of public funds.245  If so, it may be arguable that parties to the proceeding can claim under the provision.
15.51The most recent authorities have doubted that this is the correct interpretation. For example, in New Zealand Federation of Commercial Fishermen (Inc) v Ministry of Fisheries, McGechan J stated:246

…Ignoring the marginal note to the section, read as a whole it nevertheless draws a distinction between "party" to a proceeding and the Attorney-General, Solicitor-General, or (relevantly) "other person" appearing to present argument. It is at least open to the interpretation it is intended to apply only in favour of a non-party participant; most obviously a permitted intervener or amicus curiae. Such would make sense. A party can claim costs under normal court rules eg Rule 46. 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.

15.52In light of the differing views, the Commission asked whether section 99A should be available only to interveners and counsel assisting the court, or whether it should also be available to parties. And if the former, we asked whether the section needs to be amended.

Resolving the ambiguity

15.53Three submitters commented. Duncan Cotterill and the Law Society were of the view that the section should only apply to interveners and counsel assisting the court, and that it should be amended to make this clear. On the other hand, the Senior Courts’ judges considered the provision should be available to parties as well as to interveners and counsel assisting the court.

15.54The Commission considers the provision was only ever intended to apply to situations involving interveners or counsel assisting the court. Further, largely for the reasons advanced by McGechan J in New Zealand Federation of Commercial Fishermen (Inc) v Ministry of Fisheries, the Commission considers this to be the appropriate position. In light of the ambiguity, however, the provision should be amended in new courts legislation to make this clear.

R81 Section 99A of the Judicature Act 1908 should be carried over into new courts legislation, but should be amended to make it clear that it only applies in situations involving interveners or counsel assisting the court.

241Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 220, at [15.65].
242Section 99A(1)(a).
243Section 99A(1)(b).
244Section 99A(1)(c).
245See, for example, New Zealand Fishing Industry Board v Attorney-General (1992) 6 PRNZ 500 (HC) at 504.
246New Zealand Federation of Commercial Fishermen (Inc) v Ministry of Fisheries [1996] 2 NZLR 230 (HC) at 232.