Bach v Prison Director, Auckland South Corrections Facility Serco
[2022] NZHC 3138
•29 November 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2274
[2022] NZHC 3138
UNDER the Judicial Review Procedure Act 2016 and the New Zealand Bill of Rights Act 1990 IN THE MATTER
of an application for judicial review
BETWEEN
DAVID BACH
Applicant
AND
PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY – SERCO
First Respondent
ATTORNEY-GENERAL
Second Respondent
Hearing: On the papers Counsel:
D J Ryken for Applicant
J K Scragg and AA Sawant for First Respondent
Judgment:
29 November 2022
JUDGMENT OF GORDON J
[As to costs]
This judgment was delivered by me
on 29 November 2022 at 11 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Ryken & Associates, Auckland Duncan Cotterill, Wellington Meredith Connell, Wellington
BACH v PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY – SERCO [2022] NZHC
3138 [29 November 2022]
Introduction
[1] This is an application for costs by the first respondent, the Prison Director of the Auckland South Corrections Facility (Prison Director). The Auckland South Corrections Facility (ASCF) is operated by Serco New Zealand Ltd (Serco) in a public/private partnership with the Department of Corrections.
[2] In my judgment dated 21 September 2022, I declined an application by David Bach for judicial review alleging that the process following his complaint of sexual assault by a Serco staff member was a breach of natural justice under s 27 of the New Zealand Bill of Rights Act 1990.1 At all relevant times Mr Bach was a serving prisoner held at ASCF. I reserved costs.
[3] Mr Bach and the Prison Director have been unable to agree costs. The Attorney-General was represented at the substantive hearing but does not make an application for costs. The Prison Director seeks scale costs on a 2B basis in the sum of $13,016. That sum covers steps taken from 23 November 2020 to (around) 17 August 2021, being the period during which Mr Bach was not in receipt of legal aid.
[4] Mr Bach says that it is appropriate to reserve costs until the outcome of his appeal against my judgment. He says his appeal concerns a matter of public interest. In the event I disagree, he says I should not award costs pursuant to s 45(1) of the Legal Services Act 2011 (the Act).
Legal principles
[5] An award of costs is governed by Part 14 of the High Court Rules 2016 (Rules). Costs are determined at the discretion of the court,2 subject to relevant principles. It is well-established that costs follow the event, costs are paid by the unsuccessful party,3 and determination of costs should be practicable and expeditious.4
1 Bach v Prison Director, Auckland South Corrections Facility – Serco [2022] NZHC 2420.
2 Rule 14.1.
3 Rule 14.2(1)(a).
4 Rule 14.2(1)(g).
[6] An appeal to the Court of Appeal is no bar to an award of costs following the conclusion of the matter in the High Court. Where an appeal succeeds, costs in the lower court will be reconsidered.5 The common approach is to treat the party who is successful on appeal as if they had succeeded initially.6
[7] In certain circumstances, set out in r 14.7, the court may award reduced costs or refuse to award costs altogether. Rule 14.7(e) provides a basis for reduced or refusal of costs in cases where:
the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding;
[8]This Court has observed:7
Often these are cases involving important and untested points of law which are of wide implication. The requirements are that proceedings of this type have merit and involve matters of genuine public interest and importance beyond the interests of the particular unsuccessful litigant, who must also have acted reasonably in the conduct of the proceeding.
Submissions
[9] Mr Scragg, for the Prison Director, submits that no public interest attached to the proceeding and the issues were not of general importance beyond the interests of Mr Bach. Mr Scragg says further that the application lacked merit, and Mr Bach did not act reasonably in the conduct of the proceeding. In particular, Mr Bach pursued seven issues through to hearing, only to abandon five of them at the hearing. Of the two remaining, only one (concerning the investigation of a particular complaint) was of a character suitable for consideration by way of judicial review. Mr Bach was ultimately unsuccessful on that issue as well as on the second issue he pursued. The Prison Director had to respond in detail to all the issues in written submissions dated 18 August 2022, and in preparation for the hearing. Mr Scragg says that Mr Bach thereby caused the Prison Director to incur unnecessary costs.
5 Americhip Inc v Dean [2015] NZHC 1871, (2015) 22 PRNZ 703 at [25].
6 LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2015] NZHC 685 at [30].
7 Genge v Chief Executive, Department of Corrections [2018] NZHC 70 at [12].
[10] Despite the references to unreasonable conduct on the part of Mr Bach, the Prison Director does not seek increased costs. He simply seeks costs for standard steps prior to the grant of legal aid. Mr Scragg refers to unreasonable conduct in the context of r 14.7(e).
[11] Mr Ryken, for Mr Bach, first says that costs should be reserved until the Court of Appeal determines the matter and clarifies the question of whether or not a public interest matter arises. In the alternative, Mr Ryken submits that the Court should refuse to award costs against Mr Bach because the judicial review proceeding concerned a matter of public interest.
[12] In his memorandum Mr Ryken refers to Mr Bach’s financial position. There is no separate affidavit from Mr Bach nor any supporting documentation. Mr Ryken says that Mr Bach is a lifetime parolee. He was recently re-released and remains unemployed. Mr Bach is said to receive $127.94 per week in benefit payments, after his accommodation allowance and other essential costs have been deducted. Mr Ryken says that Mr Bach had a credit balance of $1,189.79 in his bank account on 11 October 2022.
[13] In response, Mr Scragg submits that financial hardship is not a shield to be used against an award of costs. Costs orders should be made at a meaningful level, even against impecunious parties.8 Whether and how costs can then be recovered is a matter for the party in whose favour the award is made.
[14] Additionally, Mr Scragg submits that Mr Bach is not immune from a costs award simply because he was granted legal aid after the proceeding was initiated.9
Case law
[15] Mr Scragg refers to a number of cases in which costs have been awarded against long-serving prisoners.
8 Te Whare o te Kaitiaki Ngahere Inc Society v West Coast Regional Council [2014] NZHC 2969 at [16].
9 Carter v Western Viaduct Marine Ltd (2003) 16 PRNZ 1034 (HC) at [23] – [25].
[16] In Tomar v Attorney-General,10 the High Court awarded costs as sought against a serving prisoner with limited means to make any payments. The Court took into account that the prisoner pursued weak claims through to hearing despite being given an opportunity at an early stage to withdraw claims without any costs liability. There was no public interest aspect to the claims and the prisoner was not in receipt of legal aid.
[17] In Genge v Chief Executive, Department of Corrections,11 costs were awarded against a long-serving prisoner with limited funds to make payment. The High Court reasoned that the judicial review application had failed in all respects, the basis for the claims was weak, and the applicant’s conduct in litigation could be “properly subjected to some criticism”.12 The Court was also influenced by the fact that the applicant had brought numerous unsuccessful applications and judicial review proceedings in the previous year, and had further proceedings pending. The respondent had accrued significant costs defending these proceedings and applications, a cost which was effectively born by the taxpayer.
[18] In Taylor v Davis and Taylor v Key,13 the High Court dealt with costs arising out of two petitions against electoral results, brought by a long-serving prisoner. In both cases, the Court found that costs were justified but awarded one fifth of costs sought on the basis that the petitions were dismissed for technical reasons rather than because they lacked merit,14 the petitioners had acted in good faith, and the underlying issue of prisoners’ voting rights was important and properly engaged the public interest provision in r 14.7(e).
[19] Reduced costs were also awarded in Reekie v Attorney-General,15 after an application for leave to appeal to the Supreme Court was declined.
10 Tomar v Attorney-General [2020] NZHC 3502.
11 Genge, above n 7.
12 Genge, above n 7, at [17].
13 Taylor v Davis [2016] NZHC 2390; Taylor v Key [2016] NZHC 2391.
14 In Taylor v Key the petitioner did not have standing; in Taylor v Davis the petitioner failed to pay the necessary security payment.
15 Reekie v Attorney-General [2020] NZSC 29.
[20] In contrast, the Court of Appeal declined to award costs against a long-serving prisoner in Smith v Attorney-General,16 because the appellant had enjoyed a measure of success “albeit slight” on appeal, and there was “no practical prospect of securing payment”.
[21] Mr Scragg also cited Carter v Western Viaduct Marine Ltd to support the proposition that a party granted legal aid after the proceeding is initiated is not immune to an award of costs for the period that the party is not in receipt of legal aid.17 In Carter, Williams J stated:
[23] … there can be little doubt that when s 40 [now s 45] speaks of liability for costs orders made ‘with respect to the proceedings’ it must be taken to refer to that part of the proceedings for which the litigant is an ‘aided person’ and not to the whole of the proceedings irrespective of when legal aid is granted. The definition of ‘aided person’ must be read in the same light. Indeed, when the definition of ‘aided person’ refers to a person ‘who is or has been’ granted legal aid, that must refer to the period when legal aid remains extant and not to the period which commences when the proceedings are filed and ends when they are finally concluded.
…
[25] … even though grants of legal aid are retrospective from the date of the application, there is no basis in statute to take the view that once litigants are granted legal aid they are immune from orders for costs at any stage of the proceeding, either before or after the grant begins or terminates. Put another way, while the statute understandably limits litigants’ liability for costs otherwise payable to them during the period when they have ‘insufficient means to pay for legal services’, there is no reason to conclude that the liability of a litigant for costs does not operate in the normal way when the insufficiency ceases.
[22] The principle that s 45 immunity to costs only applies to that part of the proceeding covered by a grant of legal aid has been applied in subsequent civil cases.18
Discussion
[23] I do not accept Mr Ryken’s submission that costs should be reserved until after the matter has been reviewed on appeal. The appeal may not be heard for many
16 Smith v Attorney-General (No. 2) [2010] NZCA 336.
17 Carter v Western Viaduct Marine Ltd, above n 9. Although the case was decided under the Legal Services Act 2000, the predecessor to the current Act, on this issue, there is no material difference between the relevant provisions.
18 See, for example, AA v LA [2017] NZHC 646 and Lincoln v Attorney-General [2020] NZHC 1810.
months. Fundamental principles of the costs regime include the timely and efficient determination of costs and that costs follow the event.
[24] Mr Ryken’s reliance on s 45(1) of the Act is misconceived. He submits that the starting point is s 45(1) of the Act which, he says, indicates that a legally aided person’s personal liability must not exceed an amount that it is reasonable for an aided person to pay having regard to all the circumstances.
[25] The argument is misconceived because Mr Bach was not an “aided person” for the period in respect of which costs are sought. Where legal aid services are provided for some, but not all, of the relevant period, costs immunity under s 45 will only apply to the periods of time, steps in the proceedings, or particular tasks covered by a grant of aid.
[26] Mr Bach was not an aided person for the first nine months after the claim was filed and is not entitled to costs immunity under s 45. Therefore, costs may be awarded against Mr Bach in the usual way for the period between 23 November 2020 and (around) 17 August 2021.19
[27] In Genge, this Court observed that “[p]risoners are generally not exempted by their status and potential impecuniosity from the general costs regimes for first instance determination”.20 I agree. I also note that Mr Bach has recently been released from prison. He is available for employment and currently in receipt of an unemployment benefit. He is thereby in a better position to pay costs than a serving prisoner.
[28] Even accepting the information about Mr Bach’s financial position contained in Mr Ryken’s memorandum, that does not provide a good reason as to why costs should not be ordered. The claim is simply for four standard steps: commencement of
19 The precise date on which legal aid was granted is not clear. In a letter of 17 October 2022 Mr Ryken states that “Mr Bach has been legally aided since about 17 August 2021”. The third of the three case management steps claimed by Serco was on 17 June 2021. The steps therefore appear to be well within the appropriate time period.
20 Genge, above n 7, at [12].
defence and three case management steps plus a disbursement for filing a statement of defence.
[29] The judicial review proceeding concerned the way in which the Prison Director handled Mr Bach’s complaint of sexual assault by a staff member. I accept there is always a degree of public interest in the way in which prisons are managed. However, in my view Mr Bach’s proceeding was pursued in his own interests, rather than the greater good. He also behaved unreasonably pursuing a number of issues which were abandoned only at the hearing. I therefore do not refuse or reduce costs under r 14.7(e).
Result
[30]I award costs against Mr Bach in favour of the Prison Director in the sum of
$12,906 together with a disbursement of $110 (filing fee), totalling $13,016.
Gordon J
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