Genge v Visiting Justice at Christchurch Men's Prison

[2018] NZHC 70

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000342

[2018] NZHC 70

BETWEEN

RICHARD GENGE

Applicant

AND

THE VISITING JUSTICE AT CHRISTCHURCH MEN’S PRISON

First Respondent

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Second Respondent

THE ATTORNEY-GENERAL

Third Respondent

Hearing:

(Determined on the papers)

Counsel:

Applicant – Self Represented

C A Griffin for Second and Third Respondents

Judgment:

8 February 2018

JUDGMENT OF GENDALL J

(As to Costs)

Introduction

[1]                 In a judgment I gave in this proceeding on 15 December 2017, I dismissed the applicant Mr Genge’s application for judicial review and indicated that the second and third respondents as the successful parties were entitled to costs. In doing so, I made directions as to the filing of memoranda as to costs by the parties.

[2]Those memoranda as to costs have now been filed as follows:

GENGE v VISITING JUSTICE AT CHRISTCHURCH MEN’S PRISON [2018] NZHC 70 [8 February 2018]

(a)memorandum dated 22 December 2017 and filed on that date from counsel for the second and third respondents seeking costs;

(b)memorandum from Mr Genge regarding costs purporting to be dated 24 November 2017 but filed on 29 December 2017;

(c)memorandum in reply from counsel for the second and third respondents dated 8 January 2018 and filed on that date; and

(d)reply memorandum from Mr Genge dated 9 January 2018 and filed on that date.

[3]                 I have now had an opportunity to consider those memoranda and now give my decision on costs based on all the material before the Court.

[4]At para [105] of my 15 December 2017 judgment I stated in part:

[105]    As the successful parties, the second and third respondents here would, as usual, be entitled to costs…

[5]                 Accordingly, counsel for the second and third respondents in their memoranda indicate that they do seek costs against Mr Genge. These are calculated on a category 2B scale basis and total $21,408 together with disbursements of $679.21, making an all up total of $22,087.21.

[6]                 No costs, it seems, are sought on behalf of the first respondent the Visiting Justice at Christchurch Men’s Prison.

Legal principles and my decision

[7]                 So far as costs payable to the second and third respondents are concerned, the fundamental starting point relating to the determination of costs here is that costs follow the event as outlined in r 14.1(a) of the High Court Rules and, therefore, costs are payable to the first respondent and second respondent as successful parties.

[8]The Supreme Court has said in Manukau Golf Club Inc v Shoye Venture Ltd1

that the overall structure of the costs regime must mean:

…There is a strong implication that a Court is to apply the regime in the absence of some reason to the contrary.

[9]And, as the Supreme Court also noted in Prebble v Huata:2

…requiring a successful party to bear the full costs of its case will seldom be just.

[10]              Where, as in a case such as the present, the Crown or public entities are involved, as a matter of general principle it seems to be accepted that they should not be treated in any way different to private parties to litigation with respect to costs issues.

[11]On this aspect, in Auckland Gas Co Ltd v Commissioner of Inland Revenue3

the Court of Appeal held that:

…Requiring the taxpayer or Commissioner to receive a lesser award of costs than would apply generally in civil litigation [which in effect was to] subsidise the other side’s litigation decisions and costs [was unfair and unprincipled].

[12]              Rule 14.7(e) of the High Court Rules permits a reduction or refusal of costs in cases involving genuine public interest. Often these are cases involving important and untested points of law which are of wide implication. The requirements are that proceedings of this type have merit and involve matters 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. I am satisfied in all the circumstances here the present case does not fall into this category. Mr Genge is a prisoner challenging the lawfulness of executive action. Many costs awards in the past have been made against prisoners in civil claims in this and other courts. Prisoners are generally not exempted by their status and potential impecuniosity from the general costs regimes for first instance determination – see Reekie v Attorney- General.4

1      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109 at [7].

2      Prebble v Huata [2005] NZSC 18 at [3] – [5].

3      Auckland Gas Co Ltd v Commissioner of Inland Revenue [1999] 2 NZLR 409 (CA).

4      Reekie v Attorney-General [2014] NZSC 63.

[13]              Before me the Crown accepted that Mr Genge, in light of his status as a long- serving prisoner, is likely to have limited funds to meet any costs orders. It was noted there is no evidence before the Court, however, as to Mr Genge’s actual personal financial circumstances. This aspect is generally relevant to enforcement of any costs award but cannot dissuade a court, in appropriate circumstances, from making a costs order.

[14]              The authorities are clear that the costs regime is designed to bring some order and discipline to litigation.5

[15]              As I understand the position, Mr Genge has now had four unsuccessful civil judgments against him in 2017 alone, excluding what are numerous unsuccessful applications for habeas corpus. He has outstanding judgments and at least a further two pending proceedings filed in this Court.

[16]              Counsel for the second and third respondents has noted that, up until now, the Department of Corrections has not ultimately pursued costs against Mr Genge despite the significant exposure to legal costs the Department, and therefore the taxpayer, has incurred to date.

[17]              In the present case Mr Genge’s judicial review application failed in all respects. The basis for his claims was not a strong one. There were allegations of delay on his part in pursuing this claim some four years after the events in question. His conduct of the litigation can also be properly subjected to some criticism.

[18]              In all the circumstances prevailing here, I am satisfied it is entirely fair and just between the parties for the usual costs principle to apply, that is that costs should follow the event. An order for the usual category 2B scale costs plus disbursements is to follow.

[19]              As I understand it, Mr Genge continues to bring in this Court numerous judicial review and other applications. If he intends to continue on this basis to litigate a large

5      Reekie v Attorney-General, above n 4.

array of dubious claims such as the present, he must also accept the jurisdiction of this and other courts to impose the usual discipline through costs orders where appropriate.

[20]              I turn now to issues of quantum relating to the category 2B costs sought by the second and third respondents. A schedule of costs and disbursements detailing this is attached to the 22 December 2017 from their counsel. This calculates category 2B costs on the standard daily recovery rate under the High Court Rules of $2230 per day with appropriate amounts sought for commencement of their defence, preparation for, and appearance at, a case management conference, preparation both of briefs or affidavits and for the hearing and appearance at the hearing for one counsel. All that is unremarkable.

[21]              I am satisfied the total 2B costs calculated on this basis amounting to $21,408 is in order. I note too that this quantum does not seem to be disputed in any way by Mr Genge.

[22]              Disbursements are outlined totalling $679.21. Again, I am satisfied these are in order.

[23]              The total amount therefore to be paid by Mr Genge for costs and disbursements in this matter is $22,087.21.

[24]              In his costs memoranda filed in this proceeding, Mr Genge suggests that he is unable to pay any amount by way of costs other than amounts from his weekly prison unemployment benefit which totals $2.70 per week. At one point it appears he offers to contribute $2.00 per week, being the amount he presently pays for television rental, provided he is allowed to bring his own television into the prison. Counsel for the second and third respondents rejects this suggestion in light of s 45A Corrections Act 2004 and the notion that personal televisions owned by prisoners are no longer authorised property within institutions.

[25]              In any event, the issues Mr Genge raises relate primarily to issues of enforcement of any costs award made. This is an entirely separate matter to the

imposition of the costs order itself which, as I have noted, is based on the merits of the costs claim.

[26]              For all the reasons outlined above, the application by the second and third respondents for an order for costs and disbursements succeeds.

[27]              An order is made that Mr Genge is to pay to the second and third respondents one amount for costs calculated on a category 2B scale basis totalling $21,408 together with disbursements of $679.21, making in all an amount for total costs and disbursements of $22,087.21.

...................................................

Gendall J

Solicitors:

Crown Law, Wellington

Copy to:
Mr Genge, Christchurch Men’s Prison