Green v New Zealand Parole Board

[2022] NZHC 764

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1302

[2022] NZHC 764

BETWEEN

TERENCE JAMES GREEN

Applicant

AND

THE NEW ZEALAND PAROLE BOARD

First Respondent

Hearing:

On the papers

Counsel:

O Harold for the Applicant

First Respondent abides the decision of the Court S Jerebine as counsel to assist the Court

Judgment:

12 April 2022

JUDGMENT OF GORDON J

[as to costs]

This judgment is delivered by me on 12 April 2022 at 4 pm pursuant to r 11.5 of the High Court Rules.

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

Registrar / Deputy Registrar

Counsel:Owen Harold, Barrister, Auckland Sarah Jerebine, Barrister, Auckland

GREEN v THE NEW ZEALAND PAROLE BOARD [2022] NZHC 764 [12 April 2022]

[1]                 In my judgment of 6 April 20221 I refused Mr Green’s application for judicial review of a decision of the New Zealand Parole Board (the Board) declining parole and a decision of the Panel Convenor upholding the decision of the Board on review.

[2]                 Ms Jerebine, counsel appointed to assist the Court, sought an order for costs under s 178(2)(a) of the Senior Courts Act 2016. Mr Harold, counsel for Mr Green, opposed the application on the basis that Mr Green was impecunious.

[3]                 In my 6 April 2022 judgment I determined that a costs order against Mr Green under s 178(2)(a) was in order.2 I directed Ms Jerebine to file a memorandum itemising the steps and disbursements claimed. I also asked Ms Jerebine to confirm in her memorandum that the order should be in favour of the Solicitor-General or if not, identifying the correct recipient. I said I would then make a formal costs order against Mr Green.3

[4]                 After the judgment of 6 April 2022 issued, Mr Harold filed a memorandum advising that Mr Green was legally aided in the proceeding. Mr Harold referred the Court to s 45 of the Legal Services Act 2011 which provides that no order for costs may be made against an aided person in a civil proceeding unless the Court is satisfied that there are exceptional circumstances.

[5]                 Ms Jerebine has responded to Mr Harold’s memorandum.   She notes that     s 45(3) of the Legal Services Act sets out examples of exceptional circumstances, all of which concern conduct in the proceeding, such as failure to comply with procedural rules and orders of the Court. Ms Jerebine agrees that there are no exceptional circumstances and an award of costs is accordingly prevented by s 45(2).

[6]                 That is a proper acknowledgement by Ms Jerebine. To qualify as “exceptional circumstances”, the circumstances must be “quite out of the ordinary”.4 Exceptional circumstances must relate to the conduct of the proceeding, not to the background of

1      Green v The New Zealand Parole Board [2022] NZHC 693.

2 Above n 1, at [109].

3 Above n 1, at [109].

4      Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA) at [31] citing Awa v Independent News Auckland Ltd (No 2) [1996] 2 NZLR 184.

the litigation, even if that background “… might be described as exceptional and quite out of the ordinary, …”.5

[7]                 There were no exceptional circumstances in the conduct of the proceeding. Accordingly, an award of costs is prevented by s 45(2) of the Legal Services Act 2011.

Gordon J

5      Wall v Gannon HC Rotorua CIV-2006-463-239, 31 July 2007 at [13].