Grant v Attorney-General

[2023] NZHC 1643

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2020-442-38

[2023] NZHC 1643

BETWEEN

SAMANTHA JANE GRANT

Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

Hearing:	On the papers
Judgment:	29 June 2023

JUDGMENT OF ISAC J

[Costs]

Introduction

[1]        In 2020, Ms Grant commenced a wide-ranging proceeding against the Attorney-General.

[2]        In a judgment of 8 July 2021, I struck out all but one aspect of her claim.1      I found that Ms Grant was seeking to relitigate matters finally determined in other proceedings or was advancing claims that were legally untenable. The one surviving aspect of her pleading was a claim that she was unlawfully detained with sentenced prisoners while on remand. I directed Ms Grant to amend her pleading and reminded her “that she is only to focus on this aspect of her proceeding, as her other claims have been struck out”.2

1      Grant v Attorney-General [2021] NZHC 1700.

2 At [93].

GRANT v ATTORNEY-GENERAL [2023] NZHC 1643 [29 June 2023]

[3]        Ms Grant subsequently filed amended pleadings which, contrary to my direction, sought to reintroduce many of the claims I had previously struck out. This led the defendant to renew his application for an order striking out the plaintiff’s claim in its entirety.

[4]        In a judgment of 8 June 2023, I again struck out the entirety of Ms Grant’s claim, except that aspect relating to her treatment as a remand prisoner (the one part of her claim that survived strike out in 2021).3 I found that the remaining claims, in addition to having previously been struck, sought to relitigate allegations which had already been finally determined, were incomprehensible, or named the wrong defendant.4

[5]        Given the defendant’s substantial success in the strike out application, I noted that I was minded to grant him costs on a 2B basis.5 The parties were unable to agree on the question of costs and filed memoranda.

[6]        The Attorney-General now seeks scale costs on a 2B basis of $15,294.77. The claim covers steps relating to both the first strike out hearing in 2021 and the renewed application in 2023. These costs are said to represent approximately half of the actual costs in the proceeding. The Attorney-General points to a case last year in which Grice J awarded costs against Ms Grant,6 and says that costs are appropriate here for essentially the same reasons.

[7]        In reply, Ms Grant asks that costs lie where they fall. She says that is a fair and appropriate outcome because:

(a)she has limited resources and the costs sought represent a very significant proportion of her annual income;

3      Grant v Attorney-General [2023] NZHC 1422.

4      At [34]–[37].

5 At [41].

6      In Grant v Everett [2022] NZHC 3429, Grice J awarded costs against Ms Grant of $11,592.60. The Attorney-General also points to Grant v Attorney-General [2020] NZDC 6341 where Judge Zohrab awarded costs of $15,989.40 and disbursements of $1,313.74.

(b)she provided “fresh evidence” in relation to her claims of malicious prosecution and the breach of duties of care she said were owed to her;

(c)she received legal assistance to help amend her statement of claim; and

(d)the defendant no longer pursues its application for security for costs or a civil restraining order against her.

[8]        In addition, Ms Grant provided the Court with an internet article published by the New Zealand Law Society entitled “Court costs: end of the lawyer-litigant exception”,7 saying it is “in regard to costs awards relying on actual costs incurred”. However, I do not consider the article relevant to the Attorney-General’s application. The focus of the article is the Court of Appeal’s judgment in Joint Action Funding Ltd v Eichelbaum.8 There the Court held that a lawyer-litigant, like any other litigant in person, is generally not entitled to recover their costs. That decision has no application here because the successful defendant was represented by counsel.

Consideration

[9]        All matters relating to costs are discretionary,9 although that discretion must be exercised on a principled basis. So far as possible the determination of costs should be predictable and expeditious.10

[10]      Overall, I am satisfied that there is no reason to depart from the ordinary rule that costs should follow the event. Nothing Ms Grant has pointed to would suggest otherwise. Accordingly, it is appropriate to allow the Attorney-General’s claim for 2B costs.

[11]      First, while I am sympathetic to Ms Grant’s personal circumstances, I am unable to accept her argument based on impecuniosity. As Grice J observed in relation to another of Ms Grant’s claims last year, “financial hardship is not an answer to a

7      Sean McAnally “Court costs: end of the lawyer-litigant exception” (1 September 2017).

8      Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249.

9      High Court Rules 2016, r 14.1.

10     Rule 14.2(1)(g).

claim for costs”.11 Were it otherwise, impecunious litigants could bring proceedings which may ultimately prove unsuccessful with no recourse for the successful defendant.

[12]      Second, Ms Grant’s attempt to reintroduce many of the claims which had already been struck out, despite an explicit direction not to do so, does not support an order that costs lie where they fall. Her approach resulted in a second day of hearing which ought not to have been necessary. The defendant has in effect been required to respond to the same claims twice. Nor do I accept that fresh evidence was provided.

[13]      Third, while Ms Grant received pro bono drafting assistance from an experienced lawyer, that only extended to repleading her claim in relation to her treatment by Corrections as a remand prisoner. I described that pleading as “clear and proper”.12 It also seems clear, however, that Ms Grant drafted the balance of her pleadings documents which were prolix and difficult to understand. Had Ms Grant limited her pleading to the aspect of her claim that was not struck out, the need for a second strike out application would have been avoided altogether. It would also have avoided a delay of almost two years in advancing the proceeding.

[14]      Finally, it is true that the defendant no longer pursues its security for costs application.13 The position is less clear in relation to the application for a civil restraint order, but I accept that the Attorney-General did not press the issue.14 The short point, however, is that the defendant’s change of position on these separate interlocutory applications (if there was any) is not relevant to the question of costs on the strike out application. Aside from the sole surviving aspect of Ms Grant’s claim—which the Attorney-General accepts is capable of bona fide argument and would likely be incapable of strike out on its own—the defendant was entirely successful in its application.

11 Grant v Everett, above n 6, at [13].

12 Grant v Attorney-General, above n 1, at [23].

13 Mr McKillop explained in his helpful supplementary submissions of 25 May 2023 that this is because the Attorney-General accepts that Ms Grant’s claim in relation to the claim against Corrections is capable of serious argument.

14 Mr McKillop  submitted  that  it  is  “unclear”  whether  such  an  order  is  necessary  to  address Ms Grant’s litigation behaviour. However, he did observe that the Court may make a civil restraint order on its own motion or, if it was not minded to so, noted that future filings might be referred to a judge as plainly abusive under r 5.35A of the High Court Rules 2016.

Conclusion and result

[15]The Attorney-General’s application for costs is allowed.

[16]Ms Grant is to pay the defendant’s costs of $15,294.77.

Isac J

Solicitors:

Crown Law, Wellington for Defendant