Carter v Coroner's Court at Wellington

[2015] NZHC 462

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2186 [2015] NZHC 462

IN THE MATTER OF

the Coroners Act 2006, the Magna Carta

1297 c 29 and its various affirmations, the Statute of Westminster the First 1275 and an application for review under the Judicature Amendment Act 1972

BETWEEN

JOHN HOWARD CARTER Applicant

AND

THE CORONER'S COURT AT WELLINGTON

First Respondent

THE COMMISSIONER OF POLICE Second Respondent

"A"

Third Respondent

Hearing:

24 February 2015

Counsel:

J H Carter in person

D J Perkins for Second Respondent No appearance for Third Respondent J B Orpin as amicus

Judgment:

13 March 2015

JUDGMENT OF WILLIAMS J

[1]      Mr Carter has brought proceedings against the Coroner at Wellington and the Commissioner of Police.  The proceedings relate to challenges he mounts in relation to decisions made by the Coroner and the police over the cause of his son, Christopher’s death.   The Coroner and police consider it to have been a suicide.

Mr Carter considers it was a homicide.

CARTER v THE CORONER'S COURT AT WELLINGTON [2015] NZHC 462 [13 March 2015]

[2]      The proceeding has a lengthy – indeed tortuous history covering a period of some years.  This is due in part to the fact that Mr Carter is self-represented, and so struggled to bring the litigation to any focus.  A related but separate cause has been Mr Carter’s illness – both physical and mental.

[3]      I attach to this judgment a potted summary of the interlocutory history of this proceeding to give a flavour of the background to which I refer.

[4]      The Crown now applies for an award of interim costs and disbursements up to 8 September 2013, the day before the date upon which, through the intercession of amicus, the proceeding became focused on at least potentially justiciable issues. Costs are sought on an indemnity, increased, or party and party basis.  In addition, or in the alternative, the Commissioner seeks an order for security for prospective costs. Finally, the Commissioner seeks an order staying the proceeding until Mr Carter pays the costs awarded and/or gives the security required.

[5]      Mr  Orpin,  as  amicus,  submits  that  such  orders  are  not  appropriate.    He submits that the only order for costs that the Court may make is one in relation to the Commissioner’s withdrawn application to strike out Mr Carter’s claim, and he submits that the Court, in its discretion, should not make that order either.  He further submits that an order for security for costs is not appropriate as Mr Carter is able to pay, from his own assets, any costs award should his substantive claim fail.

Costs

[6]      For the Commissioner, Mr Perkins, argues that his client is entitled to an award for costs up to 8 September 2013 because up until that point, it was not clear that the focus of Mr Carter’s complaint against the Commissioner was that his decision not to prosecute “A” or any other person at the conclusion of the police investigation into Christopher Carter’s death.

[7]      The relevant rules are those contained in rr 7.77(8) and 14.8(1) of the High

Court Rules. Rule 7.77(8) provides:

If an amended pleading has been filed under this rule, the party filing the amended pleading must bear all costs of and occasioned by the original

pleading and any application for amendment, unless the Court otherwise orders.

[8]      This, the Commissioner argues is relevant to the successive statements of claim filed by Mr Carter prior to 8 September 2013, for the most part at the direction of Judges who described Mr Carter’s pleadings variously as “replete with irrelevancy”, “unacceptable” and “improper” allegations.   The descriptions given were more than apt.  As the attached summary of the interlocutory history in this matter shows six statements of claim were filed until the proceeding shifted its focus to the Commissioner’s prosecutorial discretion insofar as that defendant was concerned.  This shift was achieved by direction on 6 December 2013, effectively superseding Mr Carter’s pleadings and fixing the issues.

[9]      The next relevant rule is that contained in r 14.8(1) in relation to costs on interlocutory applications.  It provides:

Costs on opposed interlocutory applications, unless there are special reasons to the contrary–

(a)       must be fixed in accordance with these rules when the application is determined; and

(b)      become payable when they are fixed.

[10]     Mr Perkins submits that his client is entitled to costs up until the relevant date because none of the six statements of claim to that point reflected the current focus of  the  proceeding.     He  submits  that  the  Commissioner  “ought  not  to  be disadvantaged by Mr Carter’s failure to plead his case properly prior to 9 September

2013.”

[11]     Mr Perkins supports the Commissioner’s claim for indemnity costs on the basis,  he  submits,  that  Mr  Carter  has  in  fact  acted  vexatiously,  frivolously, improperly or unnecessarily in commencing and/or continuing the proceeding.  This, he submits, is in breach of r 14.6(4)(a).  He pointed to the fact that Mr Carter applied for relief in various forms against the Coroner and the Commissioner, applied further to rescind the decision of Goddard J rejecting his application for the appointment of amicus, requesting the appointment of a litigation guardian to represent a non-party, and laying criminal complaints against Collins J and a police officer.

[12]     The Commissioner contends that Mr Carter has ignored directions of the Court including the direction of Dobson J of 13 March 2013 to “re-plead his statement  of  claim,  removing  any  allegations  of  inappropriate,  inadequate  or improper conduct by the police.”   He also argues that Mr Carter has acted unreasonably towards the Court, counsel and police.

[13]     Largely for the reasons advanced by Mr Orpin, I do not consider that it is appropriate at this point to award costs in respect of the various re-pleadings and interlocutory steps initiated (perhaps needlessly) by Mr Carter.   Rule 7.77(8) does not dictate that costs should be awarded at the time of re-pleading or, as in this case, mid-way through proceedings at a turning point that did not itself involve any re- pleading by Mr Carter – at least not directly.  It is silent on the question of “when”.

[14]     Rule 14.8 simply requires that costs on interlocutory applications should be dealt with at that point rather than later unless there are good reasons to take a different approach.  A key reason for that requirement is of course that the merits of an interlocutory application will often be quite different, even unrelated, to the merits

of the overall proceeding.1

[15]     The only interlocutory step to which this principle could attach is that relating to the withdrawal of the Commissioner’s application to strike Mr Carter’s claim out in light of the fact that the claim itself had become superseded by a judicially- imposed list of issues in the proceeding.  But even in that case, it cannot really be said that the merits of such an application are in fact distinct from the merits of the proceeding itself.  The point of a strike-out application is to remove unmeritorious proceedings  at  an  early  stage.    The  merits  of  this  proceeding  are  yet  to  be determined.   I note that a similar approach was taken by Woolford J in Jones v

Norterra Rural Resources Ltd and for largely similar reasons.2

[16]     It would therefore be premature to award costs to reflect the shift in the

proceeding from Mr Carter’s statements of claim to a list of issues.

1      Chapman v Badon Ltd [2010] NZCA 613 at [12].

2      Jones v Norterra Rural Resources Ltd [2014] NZHC 2855.

[17]     In summary then, my conclusions are that the costs on re-pleading rule does not dictate when those costs are to apply and there is no reason in this case to treat such costs as payable early.  In addition, the rule that does require costs to be paid early – that in relation to interlocutory applications – should not apply in this case because to do so would pre-empt an analysis of the merits.

[18]     I would add one, potentially significant caveat to the foregoing.  That is that should, as a result of the application in relation to legal professional privilege soon to be heard, it become clear that the underpinning of the current proceeding has fallen away (for reasons I need not express at any length here), then it may well be in order for the Crown to make a fresh strike-out application and, if successful, all costs will of course be  available  for argument.    So  too  will  the question  of increased  or indemnity costs.

Security for costs

[19]     Alternatively the Commissioner seeks security for costs pursuant to r 5.45. That rule provides:

(1)       Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)       that a plaintiff—

(i)        is resident out of New Zealand; or
(ii)       is a corporation incorporated outside New Zealand; or

(iii)      is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or

(b)       that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the

plaintiff's proceeding.

(2)       A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3)      An order under subclause (2)—

(a)       requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers

sufficient—

(i)        by paying that sum into court; or

(ii)       by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and

(b)       may stay the proceeding until the sum is paid or the security given.

(4)       A Judge may treat a plaintiff as being resident out of New Zealand even though the plaintiff is temporarily resident in New Zealand.

(5)       A Judge may make an order under subclause (2) even if the defendant has taken a step in the proceeding before applying for security.

(6)       References in this rule to a plaintiff and defendant are references to the person (however described on the record) who, because of a document filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.

[20]     As the Commissioner argued an assessment under r 5.45 is undertaken in four stages:

(a)       Is there reason to believe the applicant will be unable to pay the

respondents’ costs if the applicant is unsuccessful?

(b)      Would an order for security be just in all the circumstances? (c)        If so, in what amount?

(d)      Is it in order to stay the proceeding until security is paid?

[21]     The  Crown  advises  that  on  a  party  and  party  Category  2B  basis,  the

Commissioner’s overall costs will exceed $35,000.

[22]     On the first question, Mr Perkins points to various indicators in the evidence as  to  Mr Carter’s  inability to  pay.    In  an  affidavit  he filed in  response to  this application, Mr Carter deposed that:

(a)       He receives $246.25 per week in income support benefits. (b) He has $380 in the bank.

(c)       He owns a home valued at between $170-$185,000. (d)         He owns two motor vehicles valued at $3,000.

[23]     Mr Perkins also referred to a memorandum filed earlier by Mr Carter in January 2014,  when  the  matter  of  security  for  costs  was  first  raised,  in  which Mr Carter submitted:

Now if the Commissioner wants to shut me up by requiring me to pay

security for costs, which he knows I cannot …

[24]     And in a memorandum of 16 February 2015, Mr Carter submitted:

It is all very well suing me for costs but I have no money.

[25]     Thus Mr Perkins submits the inference is there to be drawn that Mr Carter will be unable to pay.

[26]     In my view, this is not a case where security for costs is necessary.   In particular, I am not satisfied that the threshold is met.   Mr Carter owns a house valued up to $185,000.  As far as I can tell it is debt-free.  There is certainly not any evidence before me that it is encumbered.  Even on the basis that Mr Carter owns an undivided half interest in that property, that interest will be sufficient, if necessary, to meet any costs award if he is unsuccessful in this proceeding.   The threshold requirement is therefore not met.  Whether or not Mr Carter is willing to pay, he is

certainly  able  to  pay3   and  procedures  are  available  to  require  him  to  do  so  if

necessary.

[27]     Having said that, I must point out that this litigation is nonetheless fraught with risk for Mr Carter – a risk, and a very appreciable one, that at the end of it he will be saddled with a requirement to pay a substantial costs award.  He stands to lose  his  house if  he is unsuccessful.    Mr Carter should  think  carefully on  that prospect.  Once again, the resolution of the next interlocutory step in this proceeding

may well bring matters to a head, we shall see.

3      Highgate on Broadway Ltd v Devine [2012] NZHC 2288 at [8].

[28]     In the meantime, the Commissioner’s applications for costs and security for

costs are dismissed.  His stay application then becomes inconsequential.

Williams J

Solicitors:

Stout Street Chambers, Wellington

Appendix:     Procedural history of interlocutory action in this case

2012

24 October

Mr Carter files first statement of claim and application for urgent
ex parte relief to prevent Coroner from continuing his inquest.

Minute of Simon France J directing Registrar not to act further
until Mr Carter’s documents compliant with the High Court Rules.

25 October

Mr Carter files second statement of claim.

Minute of Simon France J directing second statement of claim unacceptable, guidance to Mr Carter to outline facts that support the contention that the Coroner should not have convened an inquest, or failed to adjourn it.

12 November

Mr Carter files third statement of claim seeking relief against the
Coroner.

22 November

Minute of Kós J directing third statement of claim inappropriate
and giving Mr Carter a “final warning” lest his claim be struck out.

10 December

Mr Carter files application for amicus to be appointed. Chambers List sets down hearing for application.

2013

4 February

Goddard J hears amicus application; Commissioner neutral as to appointment.

5 February

Goddard J declines to appoint amicus.

11 February

Mr Carter applies to rescind Goddard J’s decision declining to
appoint amicus.

Commissioner files notice of opposition.

7 March

Commissioner files application to strike out third statement of claim.

11 March

Dobson J in Chambers hears Mr Carter’s application to remove
Commissioner as a party to the proceedings.

13 March

Minute of Dobson J refusing to remove Commissioner as a party, directing Mr Carter to re-plead his claim, noting he has had “more than sufficient warnings that he would be vulnerable to it being summarily struck out”.

25 March

Mr Carter files fourth statement of claim.

8 April

Collins J in Chambers sets timetable for any further application to strike out.

22 April

Mr Carter files fifth statement of claim.

17 May

Mr Carter files sixth statement of claim.

Commissioner’s second strike-out application scheduled for hearing.

Williams J adjourns hearing of strike-out application due to
Mr Carter’s ill-health.

30 May

Commissioner’s second strike out application rescheduled for
hearing, Mr Carter does not appear for medical reasons.

Williams J adjourns hearing on the papers and appoints Mr Orpin as amicus.

3 September

Minute of Williams J directing Mr Orpin to file submissions on
Mr Carter’s application for further adjournment and application to
appoint Mr Orpin as amicus.

6 September

Mr Orpin files submissions.

Williams J teleconference recording Mr Carter withdraws application for adjournment and appointment of litigation guardian.

9 September

Williams J hears Commissioner’s application to strike out.

Minute of Williams J noting:

-    Mr Orpin’s submissions “shifted the centre of gravity in this proceeding somewhat”;

-    the Commissioner indicated a willingness “to see his application for strike out adjourned if this would provide a reasonable opportunity for the proceeding to be restructured in a more focused way”;

-    the Commissioner’s “exasperation with the time it has taken

Mr Carter to get to this point”;

-    the Commissioner’s indication that “he will be seeking costs and/or security for costs at the conclusion of this next interlocutory stage in this proceeding”.

Directions:

-    Mr Orpin to prepare a list of issues – endeavour to reach agreement with counsel for the Commissioner;

-    if no agreement reached, then Court will either proceed/amend Mr Orpin’s list or bring the Commissioner’s strike out application back on for hearing;

-    costs reserved.

17 October

Parties file an agreed list of issues. Statement of agreed facts.

Draft index to an agreed bundle of documents for substantive hearing.

6 December

Williams J issues orders and directions:

-    fixing issues to be determined at the substantive hearing;

-    fixing a case management conference for early 2014 to determine the Commissioner’s applications for costs and/or security for costs and the question as to whether the Police waived privilege in respect of legal advice;

-    timetabling in respect of the substantive hearing.

2014

29 January

Williams J holds case management conference regarding Mr Carter’s mental health and whether litigation guardian should be appointed.

14 February

Minute of Williams J setting timetabling for litigation guardian issue.

4 November

Minute of Williams J setting down hearing of litigation guardian issue.

4 December

Williams J hears litigation guardian issue.

2015

24 January

Commissioner applies for costs and/or security for costs.

29 January

Williams J declines to appoint litigation guardian.

17 February

Minute of Williams J setting timetabling for hearing of costs applications and joinder of parties and privilege claim.

24 February

Williams J hears costs applications.