Chief Executive of the Department of Corrections v Chisnall

[2016] NZHC 1725

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-756 [2016] NZHC 1725

UNDER

the Public Safety (Public Protection

Orders) Act 2014 and the Parole Act 2002

IN THE MATTER

of an application for a public protection order or an extended supervision order

BETWEEN

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Applicant

AND

MARK DAVID CHISNALL Defendant

Hearing:	On the Papers
Counsel:	J Murdoch and S Wilson for Applicant T Ellis and G edgeler for Respondent D J Perkins for Attorney-General
Judgment:	27 July 2016

JUDGMENT (No.3) OF FOGARTY J ON COSTS

This judgment was delivered by Justice Fogarty on

27 July 2016 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors/Counsel:

Meredith Connell, Crown Solicitors, Auckland

Crown Law Office, Wellington

T Ellis, Wellington

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CHISNALL [2016] NZHC 1725 [27 July 2016]

[1]      In my second judgment on costs dated 21 June 2016,1 I held that Mr Chisnall had been sufficiently successful to obtain an order for costs on an interlocutory basis, if the High Court Rules on costs apply.

[2]      However, I did not implement that order and sought further submissions from counsel  for  both  parties.    I  was  not  yet  satisfied  that  it  was  the  intention  of Parliament that the Chief Executive’s applications for interim orders pending determination of a Public Protection Order (PPO) application were intended to be civil proceedings.

[3]      The applicant has filed further submissions dated 20 June 2016 and the Chief

Executive’s counsel has replied on 13 July 2016.

[4]      Both parties agree that the High Court Rules on costs in civil litigation can apply to this application for an interim detention order.   The reasons for this agreement are set out in the submissions for the respondent. As the applicant simply records:

The applicant agrees with the respondent’s view that the High Court Rules

on costs can apply to the application for an interim detention order.

[5]      The  respondent’s  argument  relies  on  s 104  of  the  Public  Safety  (Public

Protection Orders) Act 2014 (PSA) which provides:

104     Applications to be made by originating application

The following applications must be made by originating application: (a)     an  application  for  a  public  protection  order  or  a

prison detention order:

(b)       an application for a review of a public protection order, a prison detention order, or a protective supervision order:

(c)       an application under section 96: (d)        an application under section 102.

1      The Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 1348.

[6]      “Originating Application” is not defined in the interpretation section, s 3. Mr Ellis, for the respondent argues that the parliamentary materials, particularly the government’s advice to the Law and Order Committee, demonstrate that it was the intent of the parliamentarians that s 104 would ensure that the application would be made to the High Court in its civil jurisdiction.

[7]      Mr Ellis cites from The Ministry of Justice Advice to the Law and Order Committee – Initial briefing on 4 November 2013 which says “under the Bill, applications for PPOs would be made to the High Court in its civil jurisdiction”.

[8]      Mr Ellis goes on to say:

To  ensure  that  this  was  clear  the  Select  Committee  amended  the  Bill inserting what became s 104.

[9]      Mr  Ellis  also  explains  that  the  government,  in  control  of  the  Treasury Benches, had taken advice from the Attorney-General to the effect that the Bill should be specifically drafted to make applications a civil process.  This was because the Attorney-General thought that was necessary to avoid  a breach of the New Zealand Bill of Rights Act 1990 (NZBORA).

[10]     This judgment is not the occasion for this Court to express any opinion as to whether or not the PSA is in breach of the NZBORA.  Equally, I am concerned that this Court should not agree that the terms of s 104 mandate that the jurisdiction that this Court is exercising is in its civil jurisdiction.

[11]     In my view it is sufficient that this Court is exercising a jurisdiction granted to it by statute.  The statute confers this jurisdiction to the High Court, a Court of inherent jurisdiction.  As a Court of inherent jurisdiction this Court can order parties to litigation before it to pay costs.2

[12]     In  Halsbury’s  Laws  of  England,3   the  jurisdiction  is  described  as  being

“inherent and does not depend on any statute”.

2      West Ham Union Guardians v Churchwardens of St Matthew, Bethnal Green [1896] AC 477 (HL).

3      Halsbury’s Laws of England (5th ed, 2015) vol 12A at [1683].

The [High] Court has an overriding discretion, notwithstanding certain specific Rules in the High Court Rules, as to the fixing and payment of costs. The only exception in the exercise of this wide discretion is if there is express provision in any statute to the contrary.

[14]     Rule 14.1 provides:

14.1     Costs at discretion of court

(1)      All matters are at the discretion of the court if they relate to costs—

(a)       of a proceeding; or

(b)      incidental to a proceeding; or

(c)       of a step in a proceeding.

(2)      Rules 14.2 to  14.10 are subject to subclause (1).

(3)      The provisions of any Act override subclauses (1) and (2).

[15]     I  am  not  sure  that  r 14.1  was  ever  intended  to  preserve  the  inherent jurisdiction of the Court.  It was, however, never necessary for the Rules to preserve the inherent jurisdiction of the Court.

[16]     The constitutional position in New Zealand is that the High Court Rules are made by Order-in-Council, subject to the prior approval of the Chief Justice.5    The Rules are also scheduled to the Judicature Act and are so statutory instruments.  This is to ensure that there is no doubt as to their enforceability.  But the constitutional arrangements ensure that no High Court Rule becomes law without the approval of the Chief Justice and so without the approval of Judges of inherent jurisdiction.  In short, the New Zealand constitutional position is the same as the United Kingdom.

[17]     Therefore, it is not necessary for this Court to find in the PSA a specific power to impose costs.   Nor is it necessary to interpret s 104 for use of the term “originating application” to mean an originating application as defined in the High

Court Rules and thereby infer that s 104 requires the Court of inherent jurisdiction to

4      Laws of New Zealand Civil Procedure at [24], citing High Court Rules 14.1.

5      Judicature Act 1908, s 51C.

the criminal jurisdiction.

[18]     Furthermore, I do not consider that the inherent jurisdiction of the High Court contains within it any presumption that there is a clear distinction between civil remedies of the High Court and criminal remedies of the High Court.  I use the term “remedies” deliberately.  Because it is for remedies that parties come to the Court to seek or to oppose.  Remedies are at the heart of the definition of what Judges do and what office the Judge holds.

[19]     For these reasons I am in no doubt that I have an inherent jurisdiction to award the successful party to disputes as to the application of the PSA, without needing to classify the proceedings as civil or criminal, nor confined by the content, or absence of content, in the High Court Rules.

[20]     I return then back to the material finding that I made in Judgment Number 2 on costs, where I held that there was a sufficient “win” or “remedy” for Mr Chisnall to warrant the net result of there being an order for costs against the Chief Executive in favour of Mr Chisnall.

[21]     I agree with the position of both the applicant and the respondent that the High Court Rules are an appropriate proxy to calculate an appropriate award of costs.  I also agree that these proceedings can be categorised as interlocutory pending the final orders. They are akin to applications for interim relief.

[22]     The  Court  awards  Mr  Chisnall  costs  at  the  daily  rate  of  $2,230,  being category 2 of Schedule 2 as to the rate per day, to be calculated with reference to the time allocations in Schedule 3 as if Mr Chisnall successfully opposed  an application for a mandatory interlocutory injunction, but with cognizance taken that it was not a completely successful opposition.

[23]     I now invite the applicant and the respondent’s solicitors to agree on costs.  If they cannot agree then I will receive submissions limited to five pages each exchanged in advance and settle the figure.  Neither the applicant nor the respondent

invitation in Judgment Number 2.