Kraus v District Court at Queenstown

[2013] NZHC 3490

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2013-425-000314 [2013] NZHC 3490

BETWEEN  PETER FRANZ KRAUS Applicant

ANDTHE DISTRICT COURT AT QUEENSTOWN

First Respondent

THE ATTORNEY-GENERAL OF NEW ZEALAND

Second Respondent

Submissions:            P J Magee for Applicant

No Submissions for First Respondent
S M Kinsler and E J Devine for Second Resondent

Judgment:                19 December 2013

JUDGMENT OF D GENDALL J

Background

[1]      This proceeding involved a judicial review application of a District Court decision  in  a minute dated 14  November 2013, issued in this proceeding,  after receiving a joint consent memorandum from counsel for the applicant and counsel for the second respondent.   I noted that it was agreed the first ground of judicial

review was made out.1   The second respondent did not concede however that any of

the other grounds of review were made out.   By consent, I made several different orders:   quashing the decision of Judge Phillips, directing the District  Court to remake its decision following the hearing of oral argument and vacating the judicial review hearing.  I then directed that the applicant could apply for costs, if he wished

to do so, and that is what has now occurred.

1      Kraus   v   The   District   Court   at   Queenstown   HC   Invercargill   CIV-2013-425-000314,

14 November 2013.

KRAUS v THE DISTRICT COURT AT QUEENSTOWN [2013] NZHC 3490 [19 December 2013]

The applicant’s position on costs

[2]      The applicant seeks costs here from the second respondent on a 2B basis. This is based on the fact that he was successful in his judicial review application without the necessity of considering the merits of the remaining causes of action.

[3]      As the party who effectively succeeded here, the applicant maintains that he is entitled to an award of costs from the second respondent.  It was accepted that if costs were to be paid, they would be reflected by a 2B award.

[4]      Counsel for the applicant provided the following 2B scale costs calculation here:  3 days for the commencement of the proceeding, 0.4 days for the preparation for the first case management conference, 0.2 days for the appearance at the mention hearing or callover, 0.3 days for obtaining judgment without appearance and 0.2 days for sealing order.   The applicant therefore seeks total costs of $8159.00.   The applicant also seeks payment of disbursements of $640 being the filing fee for the proceeding.

The First Respondent’s position on costs

[5]      The first respondent here, the District Court at Queenstown, noted that costs were not being sought against it and therefore the Court did not intend to make a submission on the issue.

The Second Respondent’s position on costs

[6]      The second respondent opposed the applicant’s present costs application.  It was noted that the applicant did not seeks costs against the first respondent, presumably on the principle that costs ought only to be awarded against courts in exceptional circumstances.

[7]      It was submitted that this case did not meet the exceptional circumstances threshold in Coroner’s Court v Newton.2    This was because the review application

was resolved by consent following a straightforward mistake of law by a trial Judge.

2      Coroner’s Court v Newton [2006] NZAR 312 (CA).

The first respondent did not attempt to defend the decision on review (which Newton suggested might justify a costs order).   I agree therefore that there was “no clear basis” for a costs order against the first respondent here.

[8]      As to the second respondent’s position here, it is suggested that in the present circumstances where he has supported the correction of the acknowledged error, there is no “clear basis” for a costs order to be made against him either.

[9]      The second respondent has been named here on behalf of the Police.  They have an interest in the efficient and just disposition of the underlying criminal prosecution.   The  error  here  in  this  case  I am  satisfied  was  not  of  the second respondent’s making.   The nature of the error – resolving an application on the papers in circumstances where the applicant enjoyed a right to an oral hearing – meant that there was no scope to draw the Judge’s  attention to the overlooked requirement before a decision was made.

[10]    The second respondent as I see the position did not oppose the review application and took no steps to defend the Judge’s decision on other grounds.  Once he became aware of the error, he took immediate steps to resolve the application by consent.

[11]     In these circumstances, I am satisfied the second respondent is not properly a party who has “failed” with respect to a proceeding in terms of r 14.2(c).  And, to award costs against the second respondent in this case in my view would possibly make him a surrogate for the first respondent which, but for the Newton principle, would be primarily liable for costs.  Such an approach in my judgment would risk undermining the principle that costs for judicial error ought to be awarded only in exceptional cases.

[12]     Such an approach might possibly create perverse incentives for secondary respondents to be joined to review applications directed against judicial and quasi- judicial decision-makers who customarily abide.   It is true too that secondary respondents  should  not  be  discouraged  from  assisting  the  Court,  by  actively opposing baseless applications or by cooperating with applicants to correct clear

errors in the spirit of securing the “just, speedy and inexpensive” determination of proceedings – a primary purpose under the High Court rules.  In proactively bringing this proceeding to an end here, the second respondent should not as I see it be in a worse position than if he had adopted a detached stance and abided.

[13]     This principle would be the same if the shoe was on the other foot.  If in the context of a criminal trial, the Police applied for review of some judicial error which the defendant agreed was made out, it would not be right for the Police to obtain costs against the defendant in circumstances where the Newton principle prevented recovery against the Court.   Things might be different if a secondary respondent sought to uphold an obviously erroneous decision for some tactical advantage in the underlying proceeding.  But, that is not the situation here.

[14]     In all the circumstances, I find that it would be inappropriate and unjust to award costs against the second respondent in this case and, if necessary, the Court should exercise its discretion against an award of costs in accordance with r 14.7(g).

Orders

[15]     There is to be no order made as to costs here.  Costs are to lie where they fall.

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

D Gendall J

Solicitors:

Thomson Wilson, Whangarei

Crown Law, Wellington