Genge v Visiting Justice, Invercargill Prison

[2022] NZHC 2925

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000616

[2022] NZHC 2925

BETWEEN

RICHARD GENGE

Applicant

AND

VISITING JUSTICE, CHRISTCHURCH MEN’S PRISON

First Respondent

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Second Respondent

AND

THE ATTORNEY-GENERAL

Third Respondent

CIV-2020-425-000080

BETWEEN

RICHARD GENGE
Applicant

AND

VISITING JUSTICE, INVERCARGILL PRISON

First Respondent

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Second Respondent

AND

THE ATTORNEY-GENERAL

Third Respondent

Hearing:	(dealt with on the papers)
Appearances:	Applicant appears in Person W S Taffs for the Respondent
Judgment:	8 November 2022

RICHARD GENGE v VISITING JUSTICE, CHRISTCHURCH MEN’S PRISON [2022] NZHC 2925 [8

November 2022]

JUDGMENT AS TO COSTS OF GENDALL J

[1]    In an 11 August 2021 minute I issued in this proceeding I referred to my re-issued judgment in this matter, dated 9 July 2021 dismissing Mr Genge’s judicial review application and reserving costs. In that re-issued judgment and Minute I indicated that if costs were sought by the respondent and no agreement was reached between the parties, then memoranda could be filed sequentially and passed to me for consideration.

[2]    I also noted in my 11 August 2021 Minute that the costs issue in any event would await a decision from the Court of Appeal to whom Mr Genge had appealed my substantive judgment. That judgment from the Court of Appeal has now been given, as I understand it, dismissing Mr Genge’s appeal.

[3]    Mr Genge then sought to apply to the Supreme Court for leave to appeal     the decision  of the Court of Appeal.   In a decision  of the Supreme Court  dated    17 October 2022 that application for leave was dismissed and a further order made against Mr Genge in favour of the respondents for costs of $2,500 in that Court.

[4]    Given that Mr Genge has now exhausted all appeal rights relating to this matter, the issue of costs in the High Court remains to be decided.

[5]    Counsel for the respondents have filed their written submissions with regard to costs dated 1 August 2021. Mr Genge has replied with his submissions with regard to costs dated 9 August 2021.

[6]    I have now considered those submissions and give my decision on the issue of costs in this Court.

[7]    The respondents were entirely successful in my substantive decision. They now seek costs on the applications on a category 2B scale basis for what is calculated to be a total of 12.5 days. These costs amount to $29,875.

[8]    On the face of it, the respondents are entitled to an order for costs here under the usual R.14.2(2)(a) starting point as the parties who were successful in opposing the applicant’s judicial review applications.

[9]    In response, the applicant in his 9 August 2021 memorandum says that he is impecunious, having served over the last 26 years in prison on a life sentence. He confirms he has no money. He says the costs claimed by the respondents of $29,875 are beyond him in his present circumstances. He maintains, too, that the judicial review proceedings he brought were appropriate in all the circumstances here representing challenges to the decisions made against him by the Visiting Justice/s.

[10]   I have carefully taken all these submissions from the applicant into account in my present costs decision. Notwithstanding this, I do acknowledge that the applicant, although self-represented, is an experienced litigator, having brought numerous applications for judicial review against decisions made by the respondents here and others.

[11]   Indeed, in a decision of Nation J in this Court, in the context of considering a restraining order pursuant to s 166 of the Senior Courts Act 2016, the learned Judge provided a view of the applicant’s various judicial review applications at [25] to [26] of his decision in the following terms:1

His [Mr Genge’s] judicial review arguments have never been successful. In relation to one of the proceedings, Gendall J held that Mr Genge had “failed in all respects” and that his “conduct of the litigation can also be properly subjected to some criticism.” Gendall J also warned Mr Genge that:

If he intends to continue…to litigate a large 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.

The prison disciplinary process is designed to provide an efficient and relatively informal way of dealing with disciplinary offences. There is an inquisitorial aspect to the investigation, rather than being strictly adversarial, and the penalties tend to be significantly less severe than in criminal courts. The filing of a judicial review proceeding to challenge decisions of a  Visiting Justice that a prisoner does not like is counter to all that the Corrections Act and regulations were designed to achieve.

1      Genge v Visiting Justice, Christchurch Men’s Prison [2018] NZHC 1457.

[12]   In the present judicial review cases, the applicant has failed entirely and, as the Supreme Court noted in its 17 October 2022 decision, he had very little prospect of success with respect to these claims.

[13]   The judicial review proceedings were also brought by Mr Genge fundamentally for his personal benefit. Broadly, they did not raise any questions of general or public importance.

[14]   In all the circumstances here, I am of the view that this case is simply a usual one where costs should follow the event in the normal way. Those costs are to be awarded on the standard category 2B scale basis

[15]   There has been no quantum challenge of any kind made to the respondents’ calculation claims basis I have noted above of 12.5 days of $29,875.

[16]   An order is now made that the applicant is to pay to the respondents (collectively) costs calculated on a category 2B scale basis at $29,875.

Gendall J

Solicitors:

Copy to Applicant

Crown Solicitor’s Office, Raymond Donnelly & Co, Christchurch