Alp v Attorney-General - [2024] NZHC 2442

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alp v Attorney-General

Details

AGLC: Alp v Attorney-General [2024] NZHC 2442
Case: [2024] NZHC 2442
Decision Date: 29 August 2024

CaseChat Overview and Summary

The High Court of New Zealand was presented with an appeal by Kelvyn Alp against a decision of the District Court. The District Court had dismissed Mr Alp’s claims of unlawful arrest, false imprisonment, battery, and breaches of the New Zealand Bill of Rights Act 1990. The appeal was heard via videoconference on 26 August 2024. The primary legal issue before the Court was whether the respondent, the Attorney-General, should be required to provide security for costs in the sum of $12,428, as requested, or whether Mr Alp should be dispensed from the requirement for security for costs. The Court was also asked to determine the amount of security for costs if it was to be required.

In addressing these issues, the Court considered the relevant provisions of the High Court Rules 2016 and previous case law. It noted that security for costs was the default position on appeals, and the Court was required to fix the amount of security unless it considered that no security was required in the interests of justice. The Court acknowledged that security for costs is not automatically required in first instance matters, but on appeal, it serves to protect the respondent from the costs of an unsuccessful appeal. The Court concluded that Mr Alp had not provided sufficient evidence to support his claim of current impecuniosity, and that the respondent should not be required to defend the appeal without security. The Court also considered the merits of the appeal and found no public interest issue that would warrant dispensing with the requirement for security for costs. Ultimately, the Court ordered that security for costs should be provided in the amount of $5,000, payable within 15 working days from 26 August 2024. If the security was not paid within the specified timeframe, the appeal would be deemed abandoned.

The final orders of the Court were as follows: (a) the application for dispensation of security for costs was declined; (b) the application for security for costs in an increased amount was granted, the sum being $5,000; and (c) the security for costs of $5,000 was to be paid within 15 working days from 26 August 2024.

Orders