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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hudson v Attorney-General

Details

AGLC: Hudson v Attorney-General [2017] NZHC 2790
Case: [2017] NZHC 2790
Decision Date: 14 November 2017

CaseChat Overview and Summary

In the case of Hudson v Attorney-General, the applicant, Stephen Thomas Hudson, sought judicial review of the Prison Director of Tongariro Prison's decision not to transfer him to that prison. The respondents were the Attorney-General and the Prison Director of Tongariro Prison. The application for judicial review was dismissed by the court, and the respondents sought costs from Mr Hudson.

The primary legal issue before the court was whether the respondents were entitled to costs from Mr Hudson following the unsuccessful judicial review application. The respondents argued that costs should follow the event on a 2A basis, reflecting the average complexity of the proceeding and the relatively confined nature of the pleadings. They sought a total of $16,056.00 in costs plus $117.98 in disbursements. Mr Hudson opposed the award of costs, submitting that the respondents had failed to file the costs memorandum within the required timeframe, and that he had acted in good faith and was unable to meet an award of costs.

The court considered the general principles governing costs in proceedings, including the principle that the party who fails in a proceeding should pay costs to the party who succeeds, and the principle that the award of costs should reflect the complexity and significance of the proceeding. The court also considered the principles in favour of Mr Hudson's opposition to a costs award, including the principle that an award of costs should not exceed the costs incurred by the party claiming costs, and the principle that the court may reduce or refuse to make an order for costs if there is some other reason that justifies such an outcome.

The court ultimately determined that the award of the costs sought by the respondents would be equivalent to awarding indemnity costs against Mr Hudson, which are only appropriate in cases of vexatious, frivolous, improper, or unnecessary conduct. The court found that Mr Hudson had not acted in such a manner and that his case had some merit. The court also noted that Mr Hudson was a long-term serving prisoner with no practical prospect of securing payment of costs.

The court declined to exercise its discretion to award the costs sought by the respondents, determining that costs in this case ought to lie where they fall. The court's final order was that costs were to lie where they fell.

Orders