Hudson v Attorney-General

[2017] NZHC 2790

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-127 [2017] NZHC 2790

UNDER

the Judicature Amendment Act 1972

IN THE MATTER

of an application for Judicial Review on the grounds of unreasonableness and the Corrections Act 2004

BETWEEN

STEPHEN THOMAS HUDSON Applicant

AND

THE ATTORNEY-GENERAL First Respondent

THE PRISON DIRECTOR OF TONGARIRO PRISON

Second Respondent

Hearing:	On the papers
Counsel:	Applicant in Person M J McKillop for Respondent
Judgment:	14 November 2017

JUDGMENT OF CHURCHMAN J

Introduction

[1]      On 6 October 2017 I gave a judgment declining judicial review of the Prison

Director of Tongariro Prison’s decision not to transfer Mr Hudson to Tongariro

Prison.1   I invited the parties to file costs memoranda.

1      Hudson v Attorney-General [2017] NZHC 2456.

HUDSON v THE ATTORNEY-GENERAL [2017] NZHC 2790 [14 November 2017]

[2]      The  judicial  review  application  having  failed,  the  two  respondents,  the Attorney-General  and  the  Prison  Director  of  Tongariro  Prison  seek  costs  from Mr Hudson in the usual way on a 2A basis.  Mr Hudson opposes the award of costs.

Submissions

[3]      Counsel for the respondent submits:

(a)       Costs ought to follow the event in the usual way under the High Court

Rules 2016.

(b)The   proceeding   was   of   average   complexity   and   ought   to   be categorised as category 2.

(c)       The   pleadings   were   relatively   confined,   therefore   band   A   is appropriate.

(d)Costs   on   a  2A  basis   amount   to   $16,056.00   plus   $117.98   in disbursements.

(e)       The respondent’s actual costs, including disbursements comes to a

total of $13,762.53. The respondent seeks recovery of this amount.

[4]     Mr Hudson is self-represented.   He submitted in response to the costs memorandum above:

(a)       The  respondents  failed  to  file  the  costs  memorandum  in  the  set timeframe.

(b)      The applicant acted in good faith, believing he had a valid claim.

Costs ought to fall where they lie.

(c)       The applicant is unable to meet an award of costs, and was only able to bring the claim due to fee waivers.

(d)The applicant requests the Court exercise its discretion and refuse to make an order of costs pursuant to r 14.7(b), (c) or (g).

Law

[5]      All matters that relate to costs of a proceeding are at the discretion of the Court.2   The Court must apply relevant general principles in determining costs.  The principles in favour of the respondents’ claim are that:

(a)      The party who fails with respect to a proceeding should pay costs to the party who succeeds;

(b)An award of costs should reflect the complexity and significance of the proceeding;

(c)      Costs should be assessed in relation to the appropriate daily recovery rate and a reasonable time for preparing and appearing for the proceeding; and

(d)So far as possible, the determination of costs should be predictable and expeditious.

[6]      The principles in favour of the plaintiff’s opposition to a costs award are that:

(a)      An award of costs should not exceed the costs incurred by the party claiming costs.

(b)The court may order increased costs or indemnity costs (the actual costs, disbursements and witness expenses reasonably incurred by a party),3 the latter being appropriate if the party to pay costs has acted vexatiously, frivolously, improperly or unnecessarily in the proceeding.4

(c)       The court may reduce or refuse to make an order for costs if:5

(i)the nature of the proceeding is such that the time required by the party claiming costs would be substantially less than the

2      High Court Rules 2016, r 14.1.

3      High Court Rules 2016, r 14.6(1).

4      Rule 14.6(4)(a).

5      Rule 14.7.

time allocated under Band A;6

(ii)the proceeding concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding;7

(iii)some  other  reason  exists  which  justifies  the  court  refusing costs   or   reducing   costs   despite   the   principle   that   the

determination of costs should be predictable and expeditious.8

Analysis

[7]      In the present case, the respondents proceeded at all stages as though costs on

2B basis would be appropriate.9     This reflected the usual judicial and academic consensus that in judicial review proceedings 2B costs are normally appropriate.10

[8]      However in the respondents’ application for costs dated 18 October 2017 counsel acknowledged that Mr Hudson’s confined pleadings meant that less time was required than anticipated and costs on a 2A basis were more appropriate, being

$16,056.00.

[9]      The respondents then told the Court in accordance with r 14.2(1)(f) that the total costs and disbursements of defending the proceeding came to $13,762.53 and appropriately sought only recovery of that sum.

[10]     The  award  of  such  a  sum  against  Mr  Hudson  would  be  equivalent  to awarding indemnity costs against him under r 14.6.   Indemnity costs are to be awarded where a party has acted “vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding”.   There has

been no such improper conduct by Mr Hudson.  Indeed, as I noted at [54]–[58] and

6      Rule 14.7(a).

7      Rule 14.7(e).

8      Rule 14.7(g).

9      Counsel for the respondents’ memorandum for first case management conference, 30 March

2017 at [16]; Respondents’ submissions and chronology, 12 September 2017 at [69].

10     Graham Taylor Judicial Review A New Zealand Perspective (3rd ed, LexisNexis, Wellington,

2014) at [8.23].

[61] of my substantive judgment, there were some errors in the decision-making

process which gave rise to “legitimate concerns”.11

[11]     The case in analogous to the costs situation in Smith v Attorney-General.12

There the Court of Appeal reserved costs and upon receipt of memoranda declined to make any orders. The reasons given were to:13

(a)       Reflect Mr Smiths “slight” success in the matter; and

(b)Mr Smith was a long-term serving prisoner.  There was “no practical prospect of securing payment”.

[12]     The present case is analogous.  Mr Hudson is a long-term serving prisoner who will not be eligible for parole until 2026.  His case was neither vexatious, nor meritless.   I decline to exercise my discretion to award the costs sought by the respondents.  Costs in this case ought to lie where they fall.

Conclusion

[13]     In the circumstances, an award of what amounts to indemnity costs against the incarcerated Mr Hudson for a proceeding brought in good faith and with some merit is inappropriate.

[14]     I decline to exercise my discretion to award the costs sought.  Costs are to lie where they fall.

Churchman J

Solicitors:

Crown Law Office, Wellington

11     Hudson v Attorney-General [2017] NZHC 2456 at [61].

12     Smith v Attorney-General [2010] NZCA 336.

13 At [3].