KELVYN ALP AND ATTORNEY-GENERAL

[2024] NZHC 2901

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-000400

[2024] NZHC 2901

UNDER

High Court Rules 2016

BETWEEN

KELVYN ALP

Appellant

AND

ATTORNEY-GENERAL

Respondent

Hearing:

(On the papers)

Counsel:

T J Leighton for Appellant

S J Leslie and K Budgen for Respondent

Judgment:

7 October 2024

JUDGMENT OF BOLDT J

(costs)

[1]                 On 29 May 2024, Judge K D Kelly dismissed a civil proceeding Mr Alp brought against the Attorney-General.1

[2]                 Mr Alp applied for leave to appeal out of time against Judge Kelly’s decision. He also asked the Court to dispense with the usual payment of security for costs on appeal. In a judgment dated 29 August 2024, McQueen J set out her reasons for declining Mr Alp’s application.2

[3]                 In her decision, McQueen J concluded there was no basis to dispense with security. Moreover, she held the apparent lack of merit in Mr Alp’s appeal meant

1      Alp v The Attorney-General [2024] NZDC 11935.

2      Alp v Attorney-General [2024] NZHC 2442.

ALP v ATTORNEY-GENERAL [2024] NZHC 2901 [7 October 2024]

increased security would be appropriate.3 Justice McQueen directed Mr Alp to lodge security in the sum of $5,000.

[4]                 Mr Alp discontinued his appeal. He now seeks an order that no costs should be payable on the discontinued appeal. His primary submission is that he is impecunious, and therefore not in a position to pay costs. Alternatively, Mr Alp asks the Court to decrease any award. The respondent seeks costs on a 2B basis, which, in accordance with its calculation, amount to $4,780.

[5]                 It is common ground that costs are ordinarily payable upon a discontinuance. Rule 15.23 of the High Court Rules 2016 provides:

15.23   Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[6]                 Impecuniosity is not ordinarily regarded as a ground for dispensing with an otherwise appropriate award. As the Court of Appeal observed in Genge v Visiting Justice at Christchurch Men’s Prison, “[t]he normal rule is that costs follow the event. The fact an unsuccessful plaintiff may not be able to meet these costs is not generally relevant.”4

[7]                 The fact Mr Alp says he is impecunious may affect the Crown’s ability to enforce a costs award, but it is not,  in  itself,  a basis  for refusing  costs.  Both  Judge Kelly and McQueen J reached a clear view Mr Alp’s case lacked merit. It was irresponsible of Mr Alp to put the respondent in a position where it would incur expense defending a meritless claim, especially if he was unable to meet an award. I can see no basis to depart from the normal rule that costs should follow the event.

[8]                 The respondent seeks costs on a 2B basis. The case is appropriately placed in category 2, and I also agree that most of the steps referred to in the respondent’s costs memorandum — including the preparation of memoranda seeking increased security

3      At [22]–[25].

4      Genge v Visiting Justice at Christchurch Men’s Prison [2018] NZCA 121.

and answering to Mr Alp’s submission that security should not be directed — were properly in band B.

[9]                 Pre-hearing steps usually fall, by default, into band B. There is a presumption a step will take a “normal amount of time”. In this case, however, there is one step in the respondent’s schedule where I do not consider band B to be appropriate.

[10]              The respondent sought half a day for the commencement of its response to the appeal, noting the notice raised, as its first ground, an issue not canvassed in the District Court. Mr Alp asserted Judge Kelly should have recused himself because of a prior association with the Police before appointment to the Bench.

[11]              I do not consider the actual merits of the appeal required much engagement at such an early stage. The new allegation of perceived bias against Judge Kelly was transparently hopeless. The proceeding did not reach a stage where the Crown had to deal with that ground, or the ground asserting the Judge misapplied s 315 of the Crimes Act 1961, in any detail.

[12]              It follows I consider the step described in line 53 of Schedule 3 — commencement of the response to the appeal — is more appropriately placed in  band A, reducing the allocation from 0.5 days to 0.3. That slight amendment reduces the overall award from $4,780 to $4,302.

[13]With that minor variation, I award costs to the respondent.

Boldt J

Solicitors:

Frontline Law, Wellington for Appellant

Luke Cunningham Clere, Wellington for Respondent