Cheng v Prison Director, Auckland South Corrections Facility (Serco)

[2021] NZHC 3466

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001703

[2021] NZHC 3466

BETWEEN

THOMAS CHENG

Applicant

AND

PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO)

First Respondent

ATTORNEY-GENERAL

Second Respondent

CIV-2020-404-001759

BETWEEN

THOMAS CHENG
Applicant

AND

PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO)

First Respondent

ATTORNEY-GENERAL

Second Respondent

Hearing:	On the papers
Judgment:	16 December 2021

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Thursday, 16 December 2021 at 2 pm

pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland. Duncan Cotterill, Auckland. Copy to: Applicant.

CHENG v PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO) [2021] NZHC

3466 [16 December 2021]

The issue

[1]        The Prison Director for Auckland South Corrections Facility1 seeks costs in relation to two stayed claims brought by Thomas Cheng, one of which Mr Cheng has discontinued. Mr Cheng opposes costs.

Background

[2]        Mr Cheng, a Singaporean national, is serving a 10-year, nine-month prison sentence for importing and supplying methamphetamine. Mr Cheng also faces charges for offences allegedly committed within or from prison: importing methamphetamine; dealing methamphetamine; dealing cannabis; being a party to an aggravated robbery committed beyond prison; and participating in an organised criminal enterprise.

[3]        Mr Cheng has brought many claims against the Chief Executive of the Department of Corrections;2 Serco and the Attorney-General. On 11 December 2020, I stayed 25 claims but allowed Mr Cheng to apply for the stay to be lifted in relation to repleaded claims.3 Mr Cheng later applied to pursue four repleaded claims. I allowed one to proceed. I maintained the stay over the rest on the basis they were an abuse of process.4 Serco seeks costs in relation to two of the stayed claims, which I refer to by suffix: 17035 and 17596. Corrections and the Attorney-General do not seek costs.

[4]        In 1703, Mr Cheng alleged officers wrongly opened and inspected a box containing legally privileged documents 16 July 2020. Mr Cheng also alleged from then to 8 October 2020, he experienced “undue delays and restrictions” in relation to the printing of legal documents and receipt of email. Ten causes of action were pleaded. Mr Cheng sought declaratory relief and damages, the latter “to denounce and deter such conduct from re-occurring”. Mr Cheng later discontinued 1703.

1      Serco.

2      Corrections.

3      Cheng v Chief Executive, Department of Corrections [2020] NZHC 3273.

4      Cheng v Chief Executive, Department of Corrections [2021] NZHC 2725.

5      Cheng v Prison Director, Auckland South Corrections Facility (Serco) CIV-2020-404-1703.

6      Cheng v Prison Director, Auckland South Corrections Facility (Serco) CIV-2020-404-1759.

[5]        In 1759, Mr Cheng alleged Serco wrongly declined his requests for CDs, a fan, tracksuits, cushions, extension cords, a jacket and a cap.7 Mr Cheng also alleged several parcels, including a hair dryer and another containing legal papers, were not properly recorded on the prisoner property register. As with 1703, the alleged wrongs began July 2020. Three causes of action were pleaded. Mr Cheng sought judicial review and damages under the New Zealand Bill of Rights Act 1990. Mr Cheng has appealed the stay of 1759 to the Court of Appeal. That appeal is yet to be heard.

[6]        Mr Cheng has since filed several new claims in the High Court8 and helped other prisoners file  claims  here  too.9  Mr  Cheng’s  most  recent  claim  was  filed 16 August 2021.10 It implicates Serco and the Attorney-General and extends to 184 closely pleaded paragraphs.

Mr Cheng’s opposition to costs

[7]        Mr Cheng highlights the public interest nature of his claims; the imbalance of power between jailor and prisoner; and the importance of the rule of law. Mr Cheng says costs would amount to “punishment” for bringing the claims.

[8]        Mr Cheng also says costs should not be imposed because Serco repeatedly breaches prisoners’ rights. Mr Cheng says, “the unlawful conduct is systemic”, and the claims he brought had merit. He emphasises these were disposed of other than by trial.

[9]Finally, Mr Cheng says his personal circumstances are relevant:

The applicant is a Singapore national serving a long term imprisonment and subjected to a deportation order upon his release. All of his assets are currently restrained under the Criminal Proceeds Recovery Act 2009. He is currently paid an hourly rate of $0.20 for work done in the prison. Any adverse cost against him would be manifestly unjust, in the circumstances.

7      Months later, the fan was released.

8      CIV-2021-404-164;    CIV-2021-404-360;    CIV-2020-404-1704;    CIV-2020-404-2252;    and CIV-2020-404-2268. Lang J stayed CIV-2020-404-2191.

9      CIV-2020-404-1992; CIV-2020-404-2192; CIV-2020-404-2273; and CIV-2020-404-2274.

10     CIV-2021-404-1682.

Analysis

[10]      Mr Cheng’s discontinuance of 1703 engages r 15.23 of the High Court Rules 2016: unless the Court orders otherwise, “a plaintiff who discontinues … against a defendant must pay costs to the defendant”.

[11]      I am not minded to order otherwise. While litigation by a prisoner against his or her jailors can be in the public interest, and therefore militate or displace costs, this is not always so.11 Claim 1703 did not involve any significant human rights concerns or novel questions.12 Moreover, the sheer number of Mr Cheng’s claims admits the inference Mr Cheng’s motivation lies beyond the advancement of the public interest, or at least, is not coterminous with it. Mr Cheng’s contention Serco systemically breaches rights is unsupported by evidence and begs the very questions in issue. That the claim did not go to trial is not a basis to resist costs.

[12]      The stay of 1759 as an abuse of process attracts the orthodox presumption costs follow the event. Similar points to those above apply. The contention costs would amount to punishment misapprehends the purposes of costs in this context. One is to protect defendants from meritless or poorly framed claims. Another is to ensure litigation is conducted in a disciplined manner.13 These purposes are engaged.

[13]      Case law is divided on the relevance of a litigant’s financial hardship to costs.14 But even the cases that acknowledge relevance accept financial hardship is not an answer to costs. Mr Cheng has not sworn an affidavit about his means. While a long- serving prisoner, Mr Cheng also faces allegations of drug dealing from prison. And, Mr Cheng is a respondent to a claim by the Commissioner of Police under the Criminal Proceeds (Recovery) Act 2009. The mix does not militate costs.

11 See r 14.7(e) of the High Court Rules 2016; Genge v The Visiting Justice at Christchurch Men’s Prison [2018] NZHC 70; and Reekie v Attorney-General [2014] 1 NZLR 737, [2014] NZSC 63.

12 The most serious allegation was that officers inspected a box containing legally privileged papers. Serco accepted the officers opened the box. It said they did so to ensure it did not contain contraband but did not read its contents.

13 See, for example, Genge at [19].

14 Rule 14.7(g) of the High Court Rules provides this Court may refuse or reduce costs for “some other reason”. See the helpful discussion of Muir J in Foni v Foliaki [2018] NZHC 3126.

[14]      Serco seeks $12,309 plus disbursements of $110 in relation to 1759. In relation to 1703, it seeks $19,598 plus disbursements of $610. Mr Cheng takes no issue with the figures. All accord Schedule 3 of the High Court Rules, save the figures:

(a)In relation to two later telephone conferences (one subsequent conference for each claim). Each should be 0.2 of a day; not 0.4. This reduces each claim by $478.

(b)Concerning the 7 and 8 December 2020 hearing. Two days is claimed. The hearing took one and a half. This further reduces 1703 by $1,195.

Result

[15]Serco is awarded costs of:

(a)$17,925 and disbursements of $610 in relation to 1703.

(b)$11,831 and disbursements of $110 in relation to 1759.

……………………………..

Downs J