Craig v Chief Executive of the Department of Corrections

[2024] NZHC 356

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-425-000017

[2024] NZHC 356

UNDER

the Habeas Corpus Act 2001

BETWEEN

KYLE JAMES CRAIG

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

On the papers

Counsel:

Mr Craig in person

K A Courteney for Respondent

Judgment:

28 February 2024

JUDGMENT OF RADICH J

(Costs)

[1]                 On 16 February 2024, I declined Mr Craig’s application for a writ of habeas corpus on the basis that his detention is lawful.

[2]                 In an application of 19 February 2024, Mr Craig has applied for costs under   s 14(4) of the Habeas Corpus Act 2001, which is in the following terms:

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.

[3]                 The respondent opposes the application on the grounds that the application was not successful, that the costs that Mr Craig has incurred are not apparent and that, as a self-represented person, he would not ordinarily be entitled to costs.

CRAIG v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2024] NZHC 356 [28 February 2024]

[4]                 It is certainly a principle that costs should rarely be awarded against an unsuccessful applicant for habeas corpus,1 but it will be rare for costs to be awarded in favour of an unsuccessful applicant. Modest costs awards may be made in favour of an applicant who has not been successful but who has been released from custody for other reasons, such as a quashed conviction or a release from compulsory treatment.2 But the circumstances in this case are not such that an award of costs in favour of Mr Craig could be made.

[5]                 Moreover, it is a primary costs rule in New Zealand that a lay litigant is not entitled to recover costs.3

[6]                 Accordingly, Mr Craig’s application must be dismissed. Costs will lie where they fall.

Radich J

Solicitors:

Raymond Donnelly & Co, Christchurch for Respondent

1      Manuel v Superintendent, Hawkes Bay Regional Prison [2006] 2 NZLR 63, (2005) 22 CRNZ 331.

2      Palmer v Superintendent of Auckland Prison (2006) 18 PRNZ 261 (HC), [2007] NZAR 62 and Chu v Director of Area Mental Health Services, Wellington (2006) 18 PRNZ 266 (HC), [2007] NZAR 415.

3      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [88].