Alp v Attorney-General
[2024] NZHC 2442
•29 August 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-400
[2024] NZHC 2442
UNDER the High Court Rules 2016 BETWEEN
KELVYN ALP
Appellant
AND
ATTORNEY-GENERAL
Respondent
Hearing: 26 August 2024 (via VMR) Appearances:
T J Leighton for Appellant
K Budgen and S McCusker for Respondent
Judgment:
29 August 2024
JUDGMENT OF McQUEEN J
[1] Mr Alp appeals against a District Court decision of Judge K Kelly dismissing his claims alleging unlawful arrest, false imprisonment, battery and breach of the New Zealand Bill of Rights Act 1990.1
[2] The appeal was called in the Judge’s Chambers List on 26 August 2024 for its first case management conference. As I recorded in the minute issued following the conference, the parties were agreed as to timetabling matters for this appeal, however, Mr Alp sought to have security for costs dispensed with and the respondent sought an order for security for costs in an increased amount.2
1 Alp v Attorney-General [2024] NZDC 11935.
2 Alp v Attorney-General HC Wellington CIV-2024-485-400, 26 August 2024.
ALP v ATTORNEY-GENERAL [2024] NZHC 2442 [29 August 2024]
[3] The parties had filed memoranda addressing the security for costs issues. At the conclusion of the List, I heard brief oral submissions from counsel. I then made orders as follows:
(a)The application for dispensation of security for costs is declined;
(b)The application for security for costs in an increased amount is granted, the sum being $5,000; and
(c)The security for costs of $5,000 is to be paid within 15 working days from 26 August 2024.
[4] I said that my reasons for making these orders would follow. These are my reasons.
Background
[5] In the District Court, Mr Alp’s application having been dismissed, the Judge concluded that the respondent was prima facie entitled to costs and invited the parties to file memoranda in the usual way. Accompanying Mr Alp’s costs memorandum was an affidavit from him affirmed on 10 July 2024 which deposes that:
(a)he is the primary earner for his family (including his partner and an infant child);
(b)he has no bank accounts;
(c)he has no physical money or other assets exceeding $1,000 in value with the exception of the family vehicle which is owned by his partner;
(d)neither he nor his partner own any real property;
(e)he and his family are reliant on friends and family to cover basic living expenses;
(f)his company, Counterspin Media Ltd (of which he is a shareholder and director) is solvent but there is little to no market value in it and it does not generate any income.
[6] It appears that costs have not yet been determined in the District Court because, as Mr Alp raised an allegation of bias against the Judge, the Judge reserved any costs decision pending the outcome of this appeal. Counsel for the respondent advises, however, that they have sought that the application for recusal of the Judge be dismissed and that costs be considered without further delay. No decision is yet available.
[7] Mr Alp sought leave to appeal the substantive District Court decision out of time. Leave was granted by this Court.3 Mr Alp was ordered to pay costs of $318 on the application (which I understand has been paid).
[8] A notice of appeal was then filed on 23 July 2024. The notice identifies the grounds for appeal as:
(a)Judge Kelly should not have presided at the trial as His Honour had previously acted as senior counsel for the New Zealand Police and so there is a risk of perceived bias; and
(b)Judge Kelly erred in his application of s 315 of the Crimes Act 1961.
[9] Counsel for the respondent communicated with Mr Alp’s counsel, indicating the intention to seek increased security for costs and seeking agreement from Mr Alp that he would pay the security sought. Counsel for Mr Alp advised that his instructions were to oppose any application for increased costs. Memoranda was subsequently filed and served. The memorandum of counsel for Mr Alp indicated that Mr Alp is currently impecunious, counsel is acting on a conditional fee arrangement and, in reliance on Reekie,4 the Court should dispense with the requirement for security for costs altogether as it would be in the interests of justice.
3 Alp v Attorney-General [2024] NZHC 1983.
4 Reekie v Attorney General [2014] NZSC 63 at [37].
Relevant rule for security on appeals
[10] Rule 20.13 of the High Court Rules 2016 provides for security on appeals. The rule relevantly provides:
…
(2)the Judge must fix security for costs at the case management conference relating to the appeal, unless the Judge considers that in the interests of justice no security is required.
(3)the amount of security must be fixed in accordance with the following formula, unless the Judge otherwise directs
(a ÷ 2) × b
where—
ais the daily recovery rate for the proceeding as classified by the Judge under rule 14.4; and
bis the number of half days estimated by the Judge as the time required for the hearing.
(4)Security must be paid to the Registrar at the registry of the court no later than 10 working days after the case management conference, unless the Judge otherwise directs.
(5)Except in the case of an appeal [under the District Court Act 2016] (where non-compliance with the security order results in a deemed abandonment of the appeal [under section 126 of that Act]), if the security is not paid within the time specified under subclause (4), the respondent may apply for an order dismissing the appeal.
…
Applications to alter the default position for security for costs
[11] The respondent seeks increased security for costs of $12,428, being scale costs on a 2B basis. Mr Alp opposes the increased costs sought and seeks an order dispensing with the requirement for security for costs altogether on the basis that this would be in the interests of justice. The respondent in turn opposes any dispensation.
[12] In his oral submissions, counsel for Mr Alp, Mr Leighton, acknowledged that the application to dispense with security for costs might be rather hopeful. I agree that this is the case.
[13] There is a distinction between security in first instance matters and on appeal. In first instance matters, security is not automatically required whereas on appeal security (as provided by the formula in r 20.13) is the default position. This Court in
Clearwater Cove Apartments Body Corporate No 170989 v Auckland Council
described the reason for this distinction:5
…No doubt the underlying policy reason for the difference is that it is one thing to impose a monetary hurdle on a litigant who has already had the benefit of an (unsuccessful) first instance hearing, and quite another potentially to deny a plaintiff at first instance access to the Courts at all through the making of an order for security. Equally, however, care must be taken not to undermine a litigant's right of first appeal by imposing onerous security obligations.
[14] The respondent has already been put to the cost of defending a trial based on allegations the District Court found as not credible and contrary to Mr Alp’s own recordings and documents.6 Mr Alp has provided little information to substantiate his claim to be “currently” impecunious beyond asserting in an affidavit that he has no assets or income. Counsel for the respondent, Ms Budgen, submits that the assertions in Mr Alp’s affidavit should not be accepted without supporting information and explanation. This is especially so given he has apparently been able to fund the litigation in the District Court which included a two-day hearing.
[15] I accept the submission for the respondent that Reekie does not support the proposition that security should be dispensed with because a conditional fee arrangement exists.7 The Supreme Court found that a person who is eligible for legal aid, but who had elected to brief counsel privately on a conditional fee agreement instead, might be entitled to dispensation.8 The Supreme Court went on to discuss how the legal aid regime imposed constraints and discipline on litigation that were otherwise met by the costs regime.9 Here, there is no suggestion that legal aid was sought in this matter nor are any details of the conditional fee agreement disclosed to the Court or respondent. It is simply said that Mr Alp is “currently” impecunious. A conditional fee agreement is a form of litigation funding, which, if provided by a person other than the lawyer acting, would almost always result in an order for security even at first instance.10
5 Clearwater Cove Apartments Body Corporate No 170989 v Auckland Council [2012] NZHC 1870 at [33].
6 Alp v Attorney-General, above n 1, at [34]–[35], [44]–[48], [60], [69], [73]–[78], and [80]–[82].
7 Reekie v Attorney General, above n 4.
8 At [37].
9 At [33], [34] and [38].
10 Houghton v Saunders [2015] NZCA 141 at [11].
[16] In these circumstances, I do not consider that this is a case where it would be in the interests of justice to require the respondent to defend the appeal without security. Mr Alp is seeking to put the respondent to the expense of the appeal while seeking to avoid the ordinary costs consequences of civil litigation.
[17]I turn then to consider an order for increased security for costs.
[18] Security is required by default on appeal and r 20.13(2) requires the Judge to order it at the case management conference, with the amount able to be varied by the Judge at the conference (or afterwards).11 A default order calculated according to the formula under r 20.13 in this case would provide the respondent with security in the sum of $1,195. As noted, the respondent has calculated the expected scale costs of the appeal on a 2B basis, which amounts to $12,428.
[19] The formula may be departed from and security increased “in the interests of justice” and where “the Judge otherwise directs”.12 An increase in security is appropriate where there is a risk that the appellant cannot or will not meet costs on the appeal and/or where the respondent will encounter difficulty in getting scale costs paid promptly.13
[20] Mr Leighton relies on Houghton v Saunders to submit that the factors identified in that case favour declining to make the order sought by the respondent. He emphasises that Mr Alp has not been found to be guilty of past procedural misconduct, such as failure to pay costs awarded, which points to a risk that he cannot or will not meet costs on the appeal.14 He says that here, Mr Alp has not failed to pay a costs award, as Judge Kelly has declined to determine costs until the High Court appeal has been determined. Further, Mr Alp has paid the costs ordered in relation to the grant of leave to file the appeal out of time and, Mr Leighton submits, will strive to pay any costs ordered in this Court.
11 Clearwater Cove Apartments Body Corporate No 170989 v Auckland Council, above n 5, at [31].
12 High Court Rules 2016, r 20.13(2) and sub-r (3); and Clearwater Cove Apartments Body Corporate No 170989 v Auckland Council, above n 5, at [31]–[32],
13 Houghton v Saunders, above n 10, at [8].
14 At [8].
[21] Ms Budgen does not accept these factors operate to support Mr Alp’s position. She says that the situation is similar to that in Dowden v Commissioner of Inland Revenue, where the Court of Appeal ordered increased security, noting the appellant’s failure to pay costs in the High Court, the findings of fact and credibility findings against him in the High Court and his failure to identify any error in the High Court’s decision.15
[22] Although counsel agree that the merits of the appeal are not generally relevant to security for costs on an appeal to the High Court,16 the respondent notes that the law relating to Mr Alp’s arrest was based on well-established principles regarding s 315 of the Crimes Act 1961 and were not in contention at first instance. The Judge rejected Mr Alp’s account of his arrest, reaching his conclusions on material that was in part provided by Mr Alp, being a video record of the arrest and his own discovery affidavit. Mr Alp does not identify in the notice of appeal any specific error in the decision and Mr Leighton was not in a position before me to elaborate on the points intended to be advanced on appeal.
[23] The other ground of appeal raised is that the Judge was biased because of previous employment. Ms Budgen says that this issue was raised for the first time in Mr Alp’s costs memorandum which objected to the Judge determining costs until the appeal had been heard. As Ms Budgen submits, the Supreme Court has not considered tactical allegations of bias after judgment has been delivered with any sympathy.17
[24] In these circumstances, no issue of public interest appears to arise in either ground of appeal.
[25] Having considered these matters, I conclude that an order for security for costs in an increased amount is justified.
[26] Mr Leighton submits, however, that the sum sought by the respondent is simply unfeasible for Mr Alp. He says that if the Court is minded to order increased
15 Dowden v Commissioner of Inland Revenue [2020] NZCA 152.
16 Houghton v Saunders, above n 10, at [9]; and Clearwater Cove Apartments Body Corporate No 170989 v Auckland Council, above n 5, at [43].
17 Craig v Williams [2019] NZSC 60 at [8] and [18].
security, it should be for a lesser sum. Mr Leighton also seeks three weeks for payment, given Mr Alp’s involvement in another criminal matter. I am mindful of the comment in Clearwater Cove Apartments that care must be taken not to undermine a litigant's right of first appeal by imposing onerous security obligations and therefore conclude that increased security should be in the sum of $5,000, payable in 15 working days.18
[27] If the security for costs is not paid within the 15 working days as I have ordered, the appeal will be deemed abandoned.19 If it is paid, the amount of security may nonetheless be revisited if the circumstances warrant it.20 I reserve leave to the respondent accordingly.
McQueen J
18 Clearwater Cove Apartments Body Corporate No 170989 v Auckland Council, above n 5, at [33].
19 District Court Act 2016, s 126.
20 Clearwater Cove Apartments Body Corporate No 170989 v Auckland Council, above n 5, at [31].
6
0