Gorgus v Chief Executive of the Department of Corrections
[2023] NZHC 2097
•8 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1477
[2023] NZHC 2097
UNDER the Judicature Amendment Act 1972, Part 30 of the High Court Rules 2016, the
Declaratory Judgments Act 1908 and the common lawIN THE MATTER
of an application for judicial review,
declaratory relief and civil causes of action
BETWEEN
ASHOR GORGUS
Plaintiff
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Defendant
THE ATTORNEY-GENERAL
Second Defendant
Counsel: Plaintiff in person
S K Shaw and C E Sinclair for Defendants
Judgment:
(On the papers)
8 August 2023
JUDGMENT OF WOOLFORD J
(As to costs)
This judgment was delivered by me on Tuesday, 8 August 2023 at 4:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland
GORGUS v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2097 [8
August 2023]
Substantive proceeding
[1] On 9 March 2023 I gave judgment in judicial review proceedings brought by the plaintiff, Mr Gorgus, a former prison inmate at Auckland Prison who was placed on directed segregation for a two-week period in 2018.1 He sought various declarations challenging the legality of the segregation, damages for alleged breaches of the New Zealand Bill of Rights Act 1990, and exemplary damages in gross negligence of $50,000. The facts of this proceeding are recorded in the substantive judgment.
[2] A declaration was made that the omission to provide Mr Gorgus with his segregation paperwork in a timely manner, and the omission to forward Mr Gorgus’ revocation request to a Visiting Justice in a timely manner was a breach of natural justice and contrary to s 27(1) of NZBORA. The Department of Corrections (Corrections) had conceded this point during the proceeding.
[3]Mr Gorgus’ claims were otherwise dismissed.
Interlocutory proceeding
[4] In the course of the proceeding, Mr Gorgus applied for interim orders for access to word processing facilities, a transfer to another prison which could provide access and was closer to his family and rehabilitation provider, and appointment of a counsel to assist the Court. On 1 September 2020, Palmer J issued a decision declaring that the Chief Executive of Corrections could not prevent Mr Gorgus from accessing word processing facilities for the purpose of conducting his legal proceedings.2 Mr Gorgus’ other applications were declined.
[5]Mr Gorgus has applied for costs with respect to this decision.
1 Gorgus v Chief Executive of the Department of Corrections [2023] NZHC 450.
2 Gorgus v Chief Executive of the Department of Corrections [2020] NZHC 2249.
Legal principles
[6] Costs are at the discretion of the Court.3 This discretion should be exercised in accordance with the guidance provided in the High Court Rules 2016.4
[7] Costs will usually follow the event, meaning that the unsuccessful party to a proceeding will pay costs to the successful party.5 Success on more limited terms will still be success, though a reduction in costs entitlements should be applied in accordance with r 14.7(d).6
Defendant’s submissions
[8] The defendants seek costs on a 2B basis, with a 25 per cent reduction applied to recognise the plaintiff’s success on one cause of action, as follows:
Item
Description
Allocated days or part days
Amount ($)
Less 25
%
1
Commencement of defence by defendant
2
4,780.00
3,585.00
10
Preparation for first case management conference (including discussion about discovery) 0.4
956.00
717.00
11
Filing memorandum for first or subsequent case management conference or mentions hearing (27 September 2019) 0.4
956.00
717.00
11
Filing memorandum for first or subsequent case management
conference or mentions hearing (24 August 2020)
0.4
956.00
717.00
13
Appearance at first or subsequent case management conference (1
October 2019)
0.3
717.00
537.75
13
Appearance at first or subsequent case management conference (28
August 2020)
0.3
717.00
537.75
20 List of documents on discovery 2.5 5,975.00 4,481.25 21 Inspection of documents 1.5 3,585.00 2,688.75
3 High Court Rules 2016, r 14.1(1).
4 Rules 14.2–14.7.
5 Rule 14.2(1)(a).
6 Weaver v Auckland Council [2017] NZCA 330 at [26].
33 Preparation of briefs, list of issues, authorities, and agreeing common bundle 3
7,170.00
5,377.50
33A
Additional allowance for whichever party prepared common bundle
0.5
1,195.00
896.25
33B Preparation for hearing 3 7,170.00 5377.50 34
Appearance at hearing for sole or principal counsel
1.5
3,585.00
2,688.75
Sub-total 15.8 37,762.00 28,321.50 Disbursements Filing fee – statement of defence 110.00 Total costs (reduced by 25 per cent) and disbursements $28,431.50
[9] The defendants submit that r 14.11(3)(b) of the High Court Rules 2016 applies. That rule provides for a presumption in favour of costs in circumstances where a written offer has been made, without prejudice save as to costs, that would have been more beneficial to the recipient than the judgment ultimately obtained.
[10] They submit that a letter was sent to the plaintiff on 12 September 2022 offering to settle the proceeding on the basis that the defendants would:
(a)consent to the Court making a declaration that s 27 of the New Zealand Bill of Rights Act had been breached;
(b)provide the plaintiff with an apology letter; and
(c)agree not to seek costs following discontinuance.
[11] The defendants submit that there are no other factors justifying a refusal of or reduction in costs.
Plaintiff’s submissions
[12] Mr Gorgus opposes the respondent’s application for costs. He claims that he was the successful party in the substantive proceeding. He further states that “[i]mpecuniosity is a significant factor in my situation”, being a serving prisoner with
no means of income with which to pay costs. Mr Gorgus characterises the proceeding as “an important case” which engaged s 27(1) of NZBORA.
[13] Regarding the defendants’ letter offering settlement dated 12 September 2022, the plaintiff says that he did not receive it.
[14] Mr Gorgus states that he is entitled to costs on the interlocutory application. He relies on the principle that limited success is still success for this purpose and says that costs should follow the event. Mr Gorgus also claims that r 14.11(3)(b) is relevant, in that he wrote to counsel for the defendants with an offer to withdraw the interlocutory application if he was provided with a reasonable opportunity to access facilities to assist in litigation, and that in that event he would not seek costs. The defendants declined his offer.
Discussion
Substantive proceeding
[15] The starting point must be that costs follow the event. While both the defendants and plaintiff rely on this principle, it is clear that insofar as the substantive proceeding is concerned, the defendants were the successful party. In Middeldorp v Avondale Jockey Club Inc, the Court of Appeal considered that in a judicial review proceeding where the plaintiff had succeeded on one claim but failed on two others, the respondent was overall the successful party and entitled to costs.7 Declining leave to appeal, the Supreme Court confirmed this approach, noting that in the absence of extraordinary circumstances, “[t]he costs award was simply determined by reference to the factual assessment as to who the successful party was on an overall basis.”8 Mr Gorgus’ negligence claim was dismissed, as were his allegations of unlawful detention. Despite his limited success in gaining a declaration, he was also not granted a damages award under any of his claims. Against this factual background, it is clear that the defendants are the successful party for costs purposes.
7 Middeldorp v Avondale Jockey Club Inc [2021] NZCA 238 at [26]–[30].
8 Middeldorp v Avondale Jockey Club Inc [2021] NZSC 117 at [17].
[16] I agree with counsel’s submission that a reduction in costs is justified to recognise the plaintiff’s success in gaining a declaration, despite this having been conceded by the defendants prior to the hearing.
[17] Against this, Mr Gorgus claims that this proceeding engaged matters of public importance such that he should not be liable for costs. Rule 14.7(e) provides that a costs order may be reduced or refused where “the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding”. However, a reduction of or refusal to award costs under this provision requires that the case must genuinely engage public interest, have merit, and have some general importance beyond the interests of the individual unsuccessful litigant.9
[18] This case does not rise to that level. The decision and processes under review were particular to Mr Gorgus and were not of a different character to other cases brought under NZBORA which engage the right to natural justice. Indeed, it is relevant here that the dispute over Mr Gorgus’ case being referred to the Visiting Justice in a timely manner was conceded to by Corrections prior to the hearing. That irregularity in procedure having been acknowledged, there is little argument to show that Mr Gorgus nevertheless needed to pursue his claim in the public interest.
[19] Mr Gorgus further claimed that he should not pay costs on the basis that he is impecunious, and that being a serving prisoner, he has no access to income. However, it is settled that impecuniosity is not a barrier to costs,10 and nor is Mr Gorgus’ status as a serving prisoner.11
[20] While the defendants made reference to a Calderbank offer dated 12 September 2022, I accept Mr Gorgus’ advice that he did not receive it. There is therefore no need to take the letter into account under r 14.11(3)(b).
9 Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9].
10 Foni v Foliaki [2018] NZHC 3126 at [5].
11 Genge v Visiting Justice at Christchurch Men’s Prison [2018] NZHC 70 at [12].
Interlocutory application
[21] While Mr Gorgus was successful in the interlocutory application, the starting point is that costs are not available to lay litigants.12 While reasonable disbursements may be available, these are only granted in “exceptional circumstances” and are at the discretion of the Court.13
[22] Putting aside the fact that this case is not one of “exceptional circumstances”, Mr Gorgus failed to indicate what his disbursements were in order for the Court to consider such an application.
Result
[23]The plaintiff’s application for costs is dismissed.
[24] Costs are awarded to the defendants on a 2B basis in the amount of $28,431.50, as sought.
Woolford J
12 Re Collier [1996] 2 NZLR 438 (CA).
13 Re Collier [1996] at 440.
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