Genge v Chief Executive, Department of Corrections

[2018] NZHC 1700

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-397

[2018] NZHC 1700

UNDER

the Judicature Amendment Act 1972, New

Zealand Bill of Rights Act 1990, Corrections Act 2004, International Covenant on Civil

and Political Rights

IN THE MATTER OF

an application for judicial review

BETWEEN

RICHARD GENGE

Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

First Respondent

ATTORNEY-GENERAL

Second Respondent

Hearing:

On the papers

Counsel:

Applicant in Person

C A Griffin and A L Dixon-Blake for Respondents

Judgment:

10 July 2018

JUDGMENT OF CLARK J (COSTS)

[1]                 In 1995 Mr Genge was sentenced to life imprisonment with a minimum non- parole period of 15 years. By 2018 he remained in prison, having been denied parole on 10 occasions. Mr Genge judicially reviewed the first respondent’s alleged failure in his duty to provide Mr Genge with the rehabilitative programmes needed to allow him to present at the New Zealand Parole Board with a realistic prospect of being granted parole.

GENGE v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2018] NZHC 1700 [10 July 2018]

[2]                 On 15 June 2018 Mr Genge’s application for judicial review was dismissed.1  I concluded that, having succeeded the respondents were entitled to costs which I was inclined to award on a 2B basis, subject to hearing from Mr Genge.2

[3]                 Mr Genge submitted no costs order should be made against him. He is impecunious and if costs are awarded against him, he will be laden with a lifetime of debt. Mr Genge also considered he was entitled to protect his right to liberty.

[4]                 The respondents’ memorandum shows costs incurred by the respondents in defending Mr Genge’s application for judicial review. Costs incurred amounted to

$37,687 on a scale 2B costs basis, excluding disbursements. This claim allowed for only one counsel, two case management conferences (notwithstanding multiple substantive conferences attended over 16 months), discovery and affidavits, and excluded costs on the interlocutory matter concerning access to facilities.3

[5]                 However,  mindful  of  the  context  of  the  proceeding  which  concerned  Mr Genge’s rehabilitation and the fact that resolution of the issues was not only important to Mr Genge but will assist Departmental psychologists and others responsible for Mr Genge’s treatment and safe custody, the respondents do not seek costs. The respondents’ significant concession is expressed in this way: “in the interests of progressing Mr Genge’s rehabilitative pathway and bridging the divide between him and the Department … it is hoped this gesture will encourage Mr Genge to engage meaningfully with Psychological Services again”.

[6]For the avoidance of doubt the respondents’ position does not affect:

(a)any claim by the respondents for costs arising out of the intended tort and damages claims severed from this proceeding;

(b)any opposition to dispensation of security  for  costs  in  the  appeal Mr Genge has filed against my decision or claim for costs following substantive resolution of that appeal; and

1      Genge v Chief Executive of the Department of Corrections [2018] NZHC 1447.

2 At [79].

3      Genge v Visiting Justice and Chief Executive of the Department of Corrections [2017] NZHC 305.

(c)any claim for costs or security in any other proceeding brought  by  Mr Genge.

[7]                 Having been resolved by the respondents’ gesture no issue as to costs arises and no order for costs is made.

Karen Clark J

Solicitors:

Crown Law Office, Wellington