Bennett v Turangi District Prison Board HC Auckland M.379-sw01

[2001] NZHC 716

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M.379-SW01

BETWEEN ROSS MONCRIEFF BENNETT
Plaintiff

AND THE TURANGI DISTRICT PRISON BOARD
Defendant

Hearing: 8 August 2001

Counsel: RM Bennett in Person
DG Johnstone for the Defendant/Applicant

Judgment: 8 August 2001

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:
Meredith Connell & Co, DX CP24063, Auckland for Defendant Applicant

[1] The defendant applies for an order for costs against the plaintiff following the discontinuance of judicial review proceedings.

[2] The plaintiff had sought review of a decision of the Turangi District Prisons Board (“the Board”) refusing his application for home detention. He was serving a sentence of three and a half years imprisonment and became eligible to apply for home detention five months before his first parole eligibility date which was 11 May 2001. That application was declined on 31 January 2001. The Board reconsidered that decision on two subsequent occasions but was not prepared to order release. The plaintiff discontinued the proceedings following his release on parole when it became pointless to pursue them, regardless of how well-founded his complaints were.

[3] By r 476 a plaintiff who discontinues a proceeding is required to pay the defendant the costs of the proceeding unless the defendant otherwise agrees or the Court otherwise orders. The rule creates a presumption that a discontinuing plaintiff will be liable for costs. In determining whether or not the presumption should be overridden, the Courts have shown a marked reluctance to attempt to assess the merits of the proceeding except where they are so obvious that they should influence costs. Similarly, the Courts have been reluctant to be influenced by the reasons for discontinuance. North Shore City Council v Local Government Commission (1995) 9 PRNZ 182 and Oggi Advertising Limited v McKenzie (1998) 12 PRNZ 535 are authorities for these propositions.

[4] In his careful and comprehensive submissions, Mr Bennett has pointed to a number of considerations which, he submitted, should persuade the Court not to make an award of costs against him. Foremost among them is that the proceeding was discontinued for good cause, it having lost any practical utility following his release on parole. Mr Bennett also submitted that the Court should be concerned not to discourage prison inmates from exercising legitimate rights of redress against decisions which affect them by the imposition of costs. He argued that the right to seek judicial review is extremely important to protect from abuse a section of the population which is not generally well-equipped to challenge adverse decisions. Mr Bennett also suggested that an award of costs in relation to a proceeding which, although civil in nature, arises out of the penal process has the practical effect of adding to a prisoner’s punishment.

[5] I am not persuaded that these factors, individually or collectively, warrant a departure from the general rule. I accept Mr Johnstone’s submission that the sanction of costs is required to meet the countervailing interest of deterring unmeritorious and/or abusive proceedings. This would be compromised by the creation of a special category of litigant who could escape the usual consequences of loss or withdrawal. I consider that the overall discretion which remains available in exercising of the power to award costs is sufficient to ensure that the needs of justice are met in individual cases.

[6] In this case, I consider it is relevant to consider the means of the plaintiff and the likely effect of an order for costs on his rehabilitation. He has sworn an affidavit which discloses that he has no significant assets and substantial liabilities. He has had no regular income since his release from prison. He is a married man with four children, although not currently living with his wife.

[7] In the circumstances, it seems to me that while there are insufficient grounds to override the presumption that a discontinuing plaintiff pay the costs of the defendant, it is a proper case for the award of a nominal sum which I fix at $500. The award is intended to recognise the personal circumstances of the plaintiff, the welfare of his family and the public interest in his rehabilitation. My decision is not to be taken as an indication that challenges to administrative decisions by serving prisoners will automatically qualify for different treatment.