Deputy Chief Executive of the Department of Corrections v McCorkindale

[2020] NZHC 3197

NOTE: SUPPRESSION ORDERS MADE BY THE HIGH COURT IN S2/99 (SEE FOOTNOTE 3) REMAIN IN FORCE.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-1237

[2020] NZHC 3197

BETWEEN

THE DEPUTY CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant

AND

ROBERT JOHN MCCORKINDALE

Respondent

On the papers
Counsel:	C J Boshier for the applicant M Starling for the respondent
Judgment:	4 December 2020

JUDGMENT OF CULL J

[On costs]

[1]                  Following the judgment of 22 September 2020,1 Counsel for Mr McCorkindale has filed a memorandum seeking legal aid costs. The Department of Corrections has filed a memorandum in opposition.

[2]                  In the September judgment, the Court declined the application of the Chief Executive of the Department of Corrections to issue Mr McCorkindale with a public protection order (PPO) under the Public Safety (Public Protection Orders)  Act  2014. The Court held that although Mr McCorkindale met the threshold test in s 13 of that Act, his risk can be adequately managed and mitigated by the existing extended supervision order (ESO) issued under the Parole Act 2002, with special conditions. A

1      The Department of Corrections v McCorkindale [2020] NZHC 2484.

THE DEPUTY CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MCCORKINDALE [2020] NZHC 3197 [4 December 2020]

PPO was therefore not the least restrictive order in the circumstances, and the application was declined.

[3]                  Mr McCorkindale was therefore successful in the proceedings. He was legally aided  at  all  times.    Legal  aid  has  asked  Mr  Starling,  present   Counsel  for    Mr McCorkindale, to seek to recover the money paid in the most recent proceedings and the original proceedings when the High Court made the PPO.

[4]                  The background is necessary to explain the procedural history. In May 1999, Mr McCorkindale was sentenced to seven years’ imprisonment having pleaded guilty to five charges of indecent assault. He served the entirety of his sentence and has since been managed in the community under two successive ESOs. He is currently subject to the second ESO.

[5]                  The restrictions available for ESOs changed in 2014, which prompted Corrections’ to apply for a PPO for Mr McCorkindale in December 2016. A PPO imposes further restrictions than an ESO.

[6]                  The PPO application was heard by the High Court in July 2017 and a PPO was granted in October (the original proceeding). Mr McCorkindale appealed. The Court of Appeal quashed the PPO and remitted the matter back to the High Court for reconsideration (the Court of Appeal proceeding). The reconsideration for the PPO application came before this Court in August 2020. As noted, the Court declined the application (the recent proceeding).

[7]                  Mr McCorkindale seeks legal aid costs for all three parts of the proceedings. Mr Starling submits the total legal aid invoiced on behalf of Mr McCorkindale is as follows:

(a)Original proceeding: $21,153.50 paid (includes $14,950 for expert costs).

(b)Court of Appeal proceeding: $9,013.20 paid (includes travel and accommodation disbursements).

(c)Recent proceeding: $33,056.75 invoiced (includes $19,320 for expert costs).

[8]                  Corrections resists the claim for costs on the basis that the public interest exception in r 14.7(e) of the High Court Rules 2016 applies and the Court of Appeal costs cannot properly be claimed in the High Court.

Decision

[9]                  Generally, the party who fails in a proceeding should pay costs to the party who succeeds.2 This also reflects the rule that as far as possible, the determination of costs should be predictable and expeditious.3

[10]              There are, however, as Ms Boshier for Corrections submits, exceptions to the general rule. In this case, she submits that r 14.7(e) of the High Court Rules is relevant. Rule 14.7(e) provides that the Court may refuse to make an order for costs or may reduce the costs otherwise payable if the proceeding concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding.

[11]              For the r 14.7(e) exception to apply, the courts have generally held that the proceedings must have merit and involve a matter of genuine public interest and importance beyond the interests of the particular unsuccessful litigant, who must also have acted reasonably in the conduct of the proceeding.4

[12]              Clearly, the proceedings cannot be categorised as unmeritorious. Each court dealing with this matter found that the statutory test in s 13 of the Public Safety Act was satisfied for a PPO to be imposed. The issue to be determined was ultimately an exercise of the Court’s discretion – even though Mr McCorkindale met the statutory test and a PPO could be imposed, should it be? This is important in determining whether the proceedings involved a matter of genuine public interest and importance. Because Mr McCorkindale has been found to be at very high risk of imminent serious

2      High Court Rules 2016, r 14.2(1)(a).

3      Rules 14.2(1)(g).

4      Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9]; affirmed in New Zealand Climate Science Education Trust v National Institute of Water and Atmosphere Research Ltd [2013] NZCA 555 at [11].

sexual offending, I accept that it was appropriate for Corrections to bring the proceeding. It involved a matter of public interest beyond the interests of the parties involved, and the application itself had merit.

[13]              Corrections unsuccessfully contested the recent proceeding, including calling a Corrections’ employee whose evidence amounted to telling the Court it must order a PPO. Nevertheless, the overall conduct of the proceeding was reasonable. This included Ms Boshier leading the evidence of Ms Voice from the Salisbury Street Foundation. Ms Boshier did so following my direction that I wished to hear from her.

[14]              I consider, however, that the application of r 14.7(e) does not mean that costs should lie where they fall. Ms Boshier submits Corrections should not be discouraged from bringing, in the interests of public safety, meritorious applications by having to consider costs implications as part of the decision-making process. She submits this type of litigation is precisely the type envisaged by the  public interest exception in   r 14.7(e), given the clear objective of the Public Safety Act, and costs should remain with the parties.

[15]              The fact remains that Corrections has been unsuccessful in its application, despite submitting strongly that a PPO legally must be ordered in the circumstances. The issue was a discretionary one for the Court. Rule 14.7 gives the Court a discretion to make an order for costs or reduce costs even where the proceeding concerns a matter of public interest and the party opposing acting reasonably. Taking all the circumstances into consideration, I consider it is in the interests of fairness that costs be awarded, but with a reduction to reflect the assistance Counsel for Corrections gave to the conduct of the hearing. I consider costs should be reduced by 25 per cent.

[16]              Turning to the figures, the parties also have not been able to agree on the amounts due for each proceeding. Counsel for Mr McCorkindale has not filed a schedule itemising the costs sought so it is not clear what exactly is being sought as costs and what is being sought as disbursements.

[17]              The normal process for calculating both costs and disbursements is for the costs to be outlined in a schedule following schedule 3 of the High Court Rules and for

disbursements to be itemised with invoices attached. Neither has been submitted here by Mr Starling. In order to finalise matters, I therefore request that Mr Starling file further submissions itemising the costs and disbursements sought for each proceeding, and for Ms Boshier to reply.

[18]              If it helps the parties, my preliminary view as to the original and Court of Appeal proceeding is to grant an order for the costs of the original proceeding of

$21,253.50, including the $14,950 for expert costs, but refuse to order costs for the Court of Appeal proceeding on the basis that I am not aware, either by virtue of statute or otherwise, of this Court’s jurisdiction to order costs in respect of a Court of Appeal proceeding.

[19]              Turning to the most recent proceeding, I accept Ms Boshier’s submission that without a breakdown of the costs sought it is not possible to tell whether steps claimed for in the original proceeding have also been claimed in the recent proceeding, in respect of the same evidence. Where the same expert has been instructed twice in the same proceeding, itemisation is reasonably necessary to identify and avoid a duplication of costs incurred. For example, Mr McCorkindale’s expert Mr Metuoi gave evidence in both proceedings and Mr Starling requests expert costs in both. While distinct costs would be incurred for Mr Metuoi to consider the alternative option of an ESO at Salisbury Street Foundation, which had not been canvassed before the original High Court judge, it is unclear whether there was repetition of other matters in that evidence that should not be part of the recent proceeding’s claim.

[20]              I therefore have not been able to come to a preliminary view on the costs for the recent proceeding without the itemisation in accordance with schedule 3. I request that the parties come back to the Court on this issue. However, my preliminary view in respect of the expert costs, without any specific details, is that I am inclined to reduce the figure claimed in the recent proceedings from $19,320 to $15,000 to reflect any duplication that may have occurred. I also accept Ms Boshier’s submission that

$4,780 should be  deducted  for  the  interim  detention  order  application,  which  Mr McCorkindale unsuccessfully opposed.

[21]              The final figure of costs for both the original and recent proceeding is then to be reduced by 25 per cent to reflect the public interest factor in bringing the application and its merit.

Result

[22]The application for legal aid costs is granted.

[23]              I order a 25 per cent reduction in costs sought to reflect the public interest in Corrections bringing the application.

[24]              As counsel are still unable to agree on the amount of costs, I direct Counsel for Mr McCorkindale to file a further memorandum within five working days itemising the costs and disbursements sought for each proceeding in accordance with schedule 3 of the High Court Rules. In the absence of agreement, Counsel for Corrections is to reply within a further five working days. Memoranda are to be no more than five pages.

Cull J

Solicitors:

Raymond Donnelly & Co, Christchurch for the Crown Michael Starling, Christchurch for the Respondent