Brandon v Chief Executive of the Department of Corrections

[2015] NZHC 1827

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000506 [2015] NZHC 1827

BETWEEN

BRETTON DE BATHE BRANDON

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Judgment:                4 August 2015

JUDGMENT OF COLLINS J [Costs]

Introduction

[1]      This judgment explains why I am awarding costs to Mr Brandon, which are to be paid by the Department of Corrections (the Department) on a scale 2B basis.

Context

[2]      On 7 July 2015 I heard Mr Brandon’s application for a writ of habeas corpus. His application alleged the Chief Executive of the Department was detaining him in prison unlawfully.   Mr Brandon believed the Department had wrongly calculated when his sentence of three years and two months’ imprisonment concluded.  That sentence  was  imposed  on  12  August  2014  in  relation  to  seven  charges.    The sentences were concurrent.

[3]      In an interim judgment dated 8 July 2015 I issued a declaration that pre- sentence detention commenced on 4 April 2012 in relation to the seven charges which  Mr  Brandon  was  sentenced  for  on  12 August  2014.    The  effect  of  that declaration was that Mr Brandon’s sentence came to an end on 4 June 2015.  Instead

of issuing a writ of habeas corpus, I allowed the Department the opportunity to

BRANDON v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 1827 [4 August 2015]

correct its records and release Mr Brandon by 4.00 pm on 8 July 2015.  Mr Brandon now seeks an order that his costs be paid by the Department.

Mr Brandon’s position on costs

[4]      Mr Brandon was initially in receipt of criminal legal aid.   However, as the matter was then dealt with in the civil jurisdiction, it was replaced by civil legal aid.

[5]      That aid was withdrawn by request prior to final judgment, but following the interim judgment on 8 July 2015.  Mr Ewen, counsel for Mr Brandon, says this was done to “obviate the need for the Legal Services Commissioner to consider the complex amendment to grant requests that had been made but not then processed”. Mr Ewen says the total hours paid under the grant amounts to 15 hours’ preparation. He says Mr Brandon is not obliged to pay anything to the provider of the services

unless that has been authorised.1     Had the grant continued, at least 35 additional

hours would have been sought.  That figure represents recordable time rather than actual time spent.

[6]      On  a  band  2B  basis,  the  time  allowed  amounts  to  a  total  of  4.1  days. Mr Ewen says that whilst the intensive preparation required for this case may not amount  to  a  sufficient  reason  to  increase  costs,  the  fundamental  importance  of liberty, the wider significance of the case and the complexity of the factual matrix

warrant consideration of an uplift.2

[7]      Mr Ewen seeks increased costs on the following bases:

(1)      Fact-gathering exercise.   The convoluted procedural history of the charges, which was critical to the proper determination of the case, took several hours of analysis, lengthy visits to the District Court to view the file, reduction   of   the   complex   web   of   information,   correspondence   with

Corrections, preparing affidavits and narrowing issues in dispute.

1      Legal Services Act 2011, s 105.

2      High Court Rules, r 14.6.

(2)      Legal   analysis.     This  case  has   helped  clarify  the  conflicting authorities on s 92 of the Parole Act 2002 (the Parole Act).  The proceeding has served a wider purpose and is to the benefit of a number of inmates.

[8]      Mr Ewen submits that 7.5 days’ preparation on a band 2B basis represents a reasonable allocation of time given the urgency, complexity and importance of the proceeding.

The Department’s position on costs

[9]      The Crown properly accepts the principle where an application for a writ of habeas corpus has secured a release from unlawful detention an award of costs for the applicant will be appropriate, even if the writ was not issued.3

[10]   The Crown says that the starting point is the applicant should have a contribution to his costs.  However, the Crown says that the contribution should be lowered or at least remain at a band 2B basis for two reasons:

(1)A procedure was available to Mr Brandon under s 92(4) of the Parole Act to have resolved the issue of remand days that should have been credited to his sentence.  That would have put the matter back before the sentencing Court at a more appropriate time.

(2)The Department had an apparently valid warrant for the detention of Mr Brandon, and the facts that undermined the lawfulness of the warrant to authorise continued detention beyond 4 June 2015 were ascertained only after thorough examination of the file.  That process could not realistically be expected of the Department officials in the time available for a response to an application for a writ of habeas corpus.

[11]     The  Crown  also  submits  that  the  jurisdiction  to  award  costs  under  the

Habeas Corpus Act 2001 (the Habeas Corpus Act) should recognise the fundamental

3      Palmer v Superintendent of Auckland Prison [2007] NZAR 62 (HC) at [25].

principle that the award of costs should not exceed the actual amount incurred by the successful party or for which he or she is liable.

[12]     The Crown submits that s 32 of the Legal Services Act 2011 is relevant. Section 32 states:

32       Consequences of withdrawing legal aid

(1)       The withdrawal of legal aid does not affect—

(a)      the aided person’s obligations arising out of the conditions of

the grant; or

(b)      the Commissioner’s rights to enforce those obligations; or

(c)      the  Commissioner’s  obligation  to  pay  for  the  services

provided under the grant before the date of its withdrawal.

Analysis

[13]     In this case, s 14(4) of the Habeas Corpus Act applies.  Section 14(4) states:

All matters relating to the costs of and incidental to an application are in the discretion of the court and the court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.

[14]     Therefore, s 14(4) replaces the general principle that costs follow the event in habeas corpus proceedings.4   Although applications for costs are civil, the approach the Courts have taken is to apply s 14(4) directly. As there is no procedure identified in the Habeas Corpus Act for determining awards of costs, the Courts use sch 2 of the High Court Rules by analogy for the purpose of calculating awards of costs, and may rely on Part 14 of the High Court Rules as a guide.5

[15]     I start from the position that because Mr Brandon’s application for a writ of habeas corpus has secured his release from unlawful detention, an award of costs on

a band 2B basis for him is appropriate, even though a writ was not issued.

4      General Manager, Auckland Central Remand Prison v Mailley [2009] NZCA 314, (2009) 19

PRNZ 736 at [39]; Manuel v Superintendent, Hawkes Bay Regional Prison [2006] 2 NZLR 63 (CA) at [34].

5      General Manager, Auckland Central Remand Prison v Mailley, above n 4, at [24]; Palmer v Superintendent of Auckland Prison, above n 3; Chu v Director of Area Mental Health Services, Wellington (2006) 18 PRNZ 266 (HC).

[16]     I  am  not  satisfied,  however,  that  the  present  case  justifies  an  award  of increased costs when having regard to r 14.6 of the High Court Rules for the following reasons:

(1)The nature of a habeas corpus application is one of urgency, but the nature  of  the  proceeding  was  not  such  that  the  time  required  by Mr Brandon would substantially exceed the time allocated under band

2B, and as Mr Ewen properly accepts, it is not one which justifies a band C costs award.6

(2)Although the matter did involve a complex factual matrix, there was no deliberate misconduct or actions without reasonable justification by the Department during the course of the proceeding.7

[17]     Additionally, the Crown is correct in its submission that Mr Brandon should not receive an award of costs that would exceed the actual amount incurred when having regard to the Legal Aid Services grant.

[18]     I accept that the proceeding was one of general importance to persons other than just Mr Brandon.  In my assessment, however, that factor does not outweigh my reasons for declining to increase the award of costs.

[19]     I also accept that Mr Brandon had an alternative procedure available to him under s 92(4) of the Parole Act for resolving the issue of his release date at an earlier date. This is a factor that I have taken into account in reaching my decision.

Conclusion

[20]     Therefore, in an exercise of my discretion, I will award costs to Mr Brandon to be paid by the Department on a band 2B basis.

6      High Court Rules, r 14.6(3)(a).

7      Rule 14.6(3)(b).

D B Collins J

Solicitors:

Ord Legal, Wellington for Applicant
Crown Law Office, Wellington for Respondent