Ericson v New Zealand Parole Board

[2015] NZHC 522

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV2014-409-000837 [2015] NZHC 522

BETWEEN

JOHN FREDERICK ERICSON

Applicant

AND

THE NEW ZEALAND PAROLE BOARD Respondent

AND

THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Second Respondent

AND

THE ATTORNEY-GENERAL OF NEW ZEALAND

Third Respondent

Hearing:	18 March 2015 (On the papers)
Appearances:	Applicant in person V J Owen for First Respondent K Muller for Second and Third Respondents
Judgment:	18 March 2015

JUDGMENT OF DUNNINGHAM J RE:  COSTS DECISION

[1]      On 4 March 2015 I issued a decision striking out Mr Ericson’s application for

judicial review of various Parole Board decisions which have denied him parole.

[2]      The respondents sought costs on a 2B basis if they were successful. As I had not heard from Mr Ericson on the issue of costs if he was unsuccessful, I reserved the right for the parties to make submissions on costs, and such submissions have now been received.

[3]      Unfortunately Mr Ericson’s submissions do not address the issue of a costs

award  in  this  case,  except  to  say  they  are  objected  to.    Instead,  Mr  Ericson’s

ERICSON v THE NEW ZEALAND PAROLE BOARD AND ORS [2015] NZHC 522 [18 March 2015]

submissions focus on his objection to an order requiring payment of security for costs of $11,700, when he lodged an appeal of an earlier decision by MacKenzie J on another application for judicial review.1

[4]      It is clear the practical effect of that order was that Mr Ericson was unable to, and did not, progress his appeal of MacKenzie J’s decision.  It also seems that the application I heard was an attempt by Mr Ericson to test the legal issue which he says he would have advanced on appeal.2

[5]      However, none of that factual background has a bearing on whether it is appropriate to award costs in this case.   The position is that Mr Ericson’s second attempt to judicially review the Parole Board’s decisions, on grounds  that were traversed, unsuccessfully, before MacKenzie J, has been struck-out.   On a normal application of the principles in the High Court Rules as to costs, Mr Ericson, as the unsuccessful party, should pay costs to the successful party and, except where the circumstances outlined in either High Court r 14.6 or 14.7 arise, those costs should be calculated using the time allocations and daily recovery rates specified in the High Court Rules.

[6]      I am satisfied that these were proceedings of average complexity, requiring an average amount of time and that a 2B categorisation is appropriate.  While, given my findings, there may be grounds on which I could uplift those costs on the basis that the applicant’s arguments had no merit,3  that is neither sought, nor would I be likely to exercise my discretion to grant an uplift in all the circumstances.

[7]     Accordingly, costs are awarded to the respondents on a 2B basis, with disbursements to be fixed by the Registrar.

Solicitors:

Vicki Owen, Wellington

Crown Law, Wellington

Copy to Mr Ericson

1      Ericson v New Zealand Parole Board [2013] NZHC 1790.

2      Although the respondents point out that the Interpretation Act 1999 argument he said he wanted to raise was not mentioned in his Notice of Appeal.

3      High Court r 14.6(3)(b)(ii).