Forrest v Chief Executive of the Department of Corrections

[2014] NZHC 2703

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-202 [2014] NZHC 2703

BETWEEN

BRENDON DOUGLAS FORREST

Plaintiff

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

On the papers
Judgment:	31 October 2014

JUDGMENT OF MALLON J (Costs)

[1]      I refer to my judgment dated 29 July 2014.1   The judgment was silent on the issue of costs.  Costs were sought in the interlocutory application but not mentioned in the submissions.  The defendant has since filed a memorandum seeking costs of

$6,775.09  (calculated  on  a  2B  basis).    The  plaintiff  does  not  oppose  costs  in principle.   He queries the appropriateness of claiming for some of the steps that make up the defendant’s calculation.  He proposes that the Court order the lesser sum of $2,550 which he would pay off once he is released from prison.

[2]     Although the defendant succeeded and the general principle is that the unsuccessful party pays costs,2  I consider it is not appropriate to make any order in this case.   I acknowledge that costs orders can be made against serving prisoners. However costs orders, like reparation orders, may impose unrealistic burdens on them which do nothing to assist their rehabilitation when they are released. Consequently reparation orders are frequently not made if a person is to be sentenced

to imprisonment.

1      Forrest v Chief Executive of the Department of Corrections [2014] NZHC 1780.

2      High Court Rules, rr 14.2 and 14.8;

[3]      In this case Mr Forrest was bringing a claim under the New Zealand Bill of Rights Act  1990.    It  concerned  the  clothing  prisoners  are  required  to  wear  for prisoner visits.  Although the claim was struck out because it could not succeed, it cannot be said that it concerned a trifling matter.  Certainly there was nothing about Mr Forrest’s conduct that indicated he was anything other than genuinely concerned about the issue.   He conducted his claim in a proper manner: his pleadings were carefully framed, he was responsibly cooperative in relation to the interlocutory

steps, and his written and oral submissions were focussed on the issues.3

[4]      In these circumstances, I consider that it is not appropriate to saddle him with the burden of a substantial costs order, which he will need to pay off over time when he is released, when his efforts should be focussed on rehabilitation and integration.4

The claim for costs is therefore declined.

Mallon J

3      High Court Rules, r 14.7(e). The same is true of his submissions on costs.

4      High Court Rules, r 14.7(g).