Harder v Worksafe New Zealand

[2024] NZHC 1364

INTERIM ORDER PROHIBITING PUBLICATION OF ANY INFORMATION IDENTIFYING THE PERSONS REFERRED TO AT [10] OF HARDER V WORKSAFE NEW ZEALAND [2024] NZHC 940 AND ELSEWHERE IN THE JUDGMENT, BEING IN-HOUSE LEGAL ADVISORS AT WORKSAFE AND MR WHITTALL’S LIABILITY INSURERS AT THE TIME OF

PROSECUTION. THEY ARE NOT NAMED IN THE JUDGMENT. THEY SHOULD NOT BE IDENTIFIED IN ANY PUBLICATION BEYOND THE INFORMATION IN THE JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2014-485-11211

[2024] NZHC 1364

IN THE MATTER

Of an application to access court documents under the Senior Courts (Access to Court documents) Rules 2017 in relation to the Court’s file in Osborne v Ministry of Business, Innovation and Employment

BETWEEN

CHRISTOPHER HARDER

Applicant

AND

WORKSAFE NEW ZEALAND

Respondent

On the papers:	28 May 2024
Appearances:	C Harder self-represented for Applicant A L Martin for Respondent
Judgment:	28 May 2024

JUDGMENT OF GRICE J

(Costs)

Introduction

[1]                  The respondent seeks costs following my judgment of 26 April 2024, in which I dismissed Mr Harder’s application seeking discovery against WorkSafe New Zealand (WorkSafe) for documents in respect of a voluntary reparation payment made in

HARDER v WORKSAFE NEW ZEALAND (COSTS) [2024] NZHC 1364 [28 May 2024]

connection with the prosecution of charges against Mr Peter Whittall, a director and chief executive of Pike River Coal Ltd.1

[2]                  Mr Harder had indicated that he intended to use the documents sought to prepare an application to recall a judgment of Mallon J delivered on 24 March 2023,2 in which Mr Harder was granted access to the court file regarding the judicial review of WorkSafe’s decision not to provide evidence against Mr Whittall in respect of a prosecution resulting from the 2010 Pike River coal mine tragedy.3 That prosecution decision led to the Supreme Court declaring in 2017 that an arrangement reached by WorkSafe to offer no evidence on charges against Mr Whittall was unlawful.4

[3]                  The issues for the hearing before me had been earlier identified by Cull J in a minute dated 16 February 2024.5 On those issues I found that:

(a)The High Court Rules 2016 (HCR) did not confer jurisdiction to hear the application, and the issue had already been finally determined by Mallon J in her judgment.

(b)Mr Harder had standing to bring the application, as Mallon J had granted him standing to access the court documents. However, he had no standing in relation to the judicial review proceeding that was the subject of those court documents.

(c)The discovery application was procedurally improper and amounted to an abuse of process.

[4]                  At the end of the discovery judgment I reserved costs, as Mr Harder had indicated he would oppose costs. I recorded:

1      Harder v WorkSafe New Zealand [2024] NZHC 940.

2      Re Harder (No 2) [2023] NZHC 620. An earlier decision dated 22 December 2022 was issued by Mallon J seeking clarification of the application; see Re Harder [2022] NZHC 3615.

3      The judicial review to which the application related was in respect of the Ministry of Business, Innovation and Employment (MBIE).

4      Osborne v WorkSafe New Zealand [2017] NZSC 175, [2018] 1 NZLR 447.

5      Harder v WorkSafe New Zealand HC Wellington CIV-2014-485-11211, 16 February 2024 (Minute of Cull J) at [13].

[70]      WorkSafe indicated it sought costs if it were successful in this application on a schedule 2 category B basis under the HCR. Mr Harder responded that his fares and accommodation had been paid for by Mr Monk and Ms Rose or third parties and he had donated his  time  free  of charge. Mr Harder indicated that Ms Rose had been assisting in preparation for the hearing.

[71]      WorkSafe has successfully defended the applications and in the usual course would be  entitled to  costs.    However  I  consider  I  should allow Mr Harder a further five days from the date of this judgment to file submissions elaborating on the basis of his opposition to costs. WorkSafe then have a further five days to file a response. I make those directions accordingly.

Submissions

[5]                  In his written submissions, Mr Harder notes that Crown Law wrote to him saying that WorkSafe considered it was entitled to costs of $6,214, being calculated on a 2B basis, and set out the steps for which the claim had been made. Mr Harder notes that at the hearing he sought that costs lie where they fall. He submits that although “WorkSafe made their point”, it is appropriate that costs lie where they fall given that there were “no clear winners”. Mr Harder says he won on the standing point. In addition, he says an award of costs could be seen as a vicarious award against the families of the Pike River mine victims in their efforts to seek justice.

[6]                  Mr Martin, for WorkSafe, in his submissions confirms the application for costs and notes that costs should follow the event unless there are exceptional reasons. The submissions note that while Mr Harder may submit that his case was extraordinary, this does not amount to an exceptional reason for the purposes of costs. Furthermore, it is highlighted that the Court found it had no jurisdiction to make the orders sought and that the application was an abuse of process.

[7]                  Mr Martin notes that WorkSafe did not challenge Mr Harder’s standing to bring the application, but only his standing in relation to the judicial review proceedings, which he had no standing to reopen. The submissions attach the schedule of costs sought, totalling $6,214.

Analysis

[8]                  While the court retains a discretion in relation to an award of costs, that discretion must be exercised in a principled way.6 The principles are set out in the HCR. These provide that costs should be awarded at the time and usually follow the event.7 The categories of costs and band time estimates for steps are set out in the HCR.8 No issue has been taken here that 2B is the appropriate category and band of costs for this matter.

[9]                  The issue of Mr Harder’s standing in relation to the application under consideration was not contested. WorkSafe succeeded in relation to the issues contested and the application was found to be an abuse of process. Mr Harder is the only person against whom costs should be awarded as a party to the proceedings.

[10]              In those circumstances, costs are awarded against Mr Harder on a 2B basis as claimed.

Grice J

Solicitors:

Crown Law, Wellington

6      High Court Rules 2016, r 14.1. See also Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [HHR14.1.02].

7      Rules 14.8 and 14.2(1)(a) and (g).

8      Schedule 3.