Lincoln v Attorney-General
[2024] NZHC 326
•27 February 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-121
[2024] NZHC 326
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for review of an administrative procedure and official decision
BETWEEN
RICHARD LINCOLN
Applicant
AND
THE ATTORNEY-GENERAL
First Respondent
GEOFFREY BARCLAY CAVELL
Second Respondent
Hearing: On the papers Counsel:
R Lincoln self-represented Applicant
Z R Hamill & O Kiel for First Respondent No appearance for Second Respondent
Judgment:
27 February 2024
JUDGMENT OF McQUEEN J
[Costs]
[1] In a judgment dated 20 December 2023, I dismissed Mr Lincoln’s application for judicial review of two decisions made by the New Zealand Police in respect of Mr Cavell (the second respondent), a person against whom Mr Lincoln obtained a civil restraining order (the substantive judgment).1
1 Lincoln v Attorney-General [2023] NZHC 3822.
LINCOLN v THE ATTORNEY-GENERAL [2024] NZHC 326 [27 February 2024]
[2] I recorded that the Attorney-General was entitled to costs, noting that if agreement was not possible between the parties, memoranda may be filed in the usual way and that I would decide costs on the papers. The parties have each filed a memorandum accordingly. I record that the Attorney-General did not file a memorandum in reply, although that was permitted.
Parties’ positions
[3] The Attorney-General seeks costs on a 2B basis. Counsel for the Attorney- General, Ms Hamill, submits that while the award of costs is ultimately discretionary, the fundamental principle applying to the determination of costs is that costs follow the event.2 Ms Hamill says that it is well-settled that the same general starting point applies in public law cases as in other civil litigation and that it applies where the Crown is the successful party.3
[4] Ms Hamill also says that Mr Lincoln did not take an opportunity to discontinue the proceeding with the Attorney-General agreeing not to seek costs, when the two formal warnings issued by the Police (which are at issue in the proceeding) were withdrawn, following commencement of this litigation, consideration of relevant Police policy and the decision of this Court in S v Commissioner of Police.4
[5] Mr Lincoln opposes any order for costs being made. He submits that I did not adjudicate the central issues in the case and therefore did not determine the proceeding that was brought before me. Mr Lincoln further submits that, this Court having “cherry picked” the issues it determined, neither party has failed or succeeded.
[6] Mr Lincoln also contends that this proceeding was continued solely in the public interest and that this Court should not discourage concerned citizens from the civic duty of bringing illegal executive action before it. He says that costs in this case are de minimis to the Crown but would result in insolvency for him. He suggests that the Attorney-General would not be paying costs if the Attorney-General had lost and
2 High Court Rules 2016, r 14.2(1)(a); and Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].
3 Prebble v Awatere Huata (No 2) [2005] NZSC 18, [2005] 2 NZLR 467 at [5]. See also Auckland Gas Co Ltd v Commissioner of Inland Revenue [1999] 2 NZLR 409 (CA).
4 S v Commissioner of Police [2021] NZHC 743, [2021] 3 NZLR 392.
therefore was not exposed to the same litigation risk as Mr Lincoln. Mr Lincoln goes on to say that he was “cancelled for life by the judiciary in 2019”.5 Mr Lincoln says that he is impecunious and destitute; that he is 63 years old and “invalided with PTSD”. Mr Lincoln says that he lives on welfare, has no substantial assets and no prospect of ever being employed again. He says that, as a result, he cannot afford to pay any costs order and the Attorney-General will not be able to recover costs from him so such an order would have no utility.
Discussion
[7] In the substantive judgment, I concluded that the formal warnings given to Mr Cavell by the Police were unlawful, for the reasons advanced by the Attorney- General. I did not accept Mr Lincoln’s argument that in deciding not to prosecute Mr Cavell, the Police acted in a manner not prescribed by law. I concluded that the decision not to prosecute Mr Cavell appeared to be a justifiable exercise of prosecutorial discretion, a matter in respect of which the courts do not lightly interfere. I was satisfied that it would not be appropriate to intervene in the present circumstances, as there was no evidence to establish that the Police acted unlawfully. I also concluded that the two formal warnings issued were not in breach of Mr Lincoln’s right to natural justice. Accordingly, Mr Lincoln was wholly unsuccessful in his claims.
[8] Mr Lincoln has appealed the substantive judgment. As anticipated by Mr Lincoln in his memorandum on costs, I am not going to recall the substantive judgment on the basis of Mr Lincoln’s allegation that I did not determine the matters in issue (and indeed Mr Lincoln has not made an application for that outcome other than mentioning the point in his costs memorandum).6 In my view, it is appropriate for Mr Lincoln’s concerns about the substantive judgment to be addressed on appeal.
[9]In Foni v Foliaki, Muir J emphasised that:7
5 Although not explained in his submissions, it may be that this refers to the Court of Appeal’s decision in 2019 concluding that Mr Lincoln was not a fit and proper person to be admitted as a barrister and solicitor of the High Court: Lincoln v New Zealand Law Society [2019] NZCA 442.
6 I do not consider that exceptional circumstances exist to recall the judgment: Horowhenua County v Nash (No 2) [1968] NZLR 632 as applied in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76.
7 Foni v Foliaki [2018] NZHC 3126 at [5]. See also Smith v Attorney-General [2023] NZHC 3702.
(a)financial hardship is not an answer to a claim for costs;
(b)costs awards must be at a meaningful level, even against an impecunious party, particularly where the case is found to have lacked merit; and
(c)a sworn affidavit of limited financial means is ordinarily required (unless established through evidence in the substantive proceeding).
[10] Muir J also said that abatement of costs awards because of personal circumstances are not typically justified, having regard to the other more specific provisions of the relevant rules, and that the discretion should be reserved for exceptional cases.8
[11] There is no sworn evidence before me of Mr Lincoln’s financial position. The assertions in his memorandum on costs do not provide me with a proper basis to assess it. In any event, and consistent with the approach taken by Muir J, I do not consider this to be an exceptional case in which I should exercise the discretion in r 14.7(g) of the High Court Rules 2016.
[12] I do not consider that there are public interest or other considerations that weigh against an award of costs being made in favour of the Attorney-General. Nor do I accept Mr Lincoln’s suggestion that determination of costs is best left to the Court of Appeal, given his appeal against the substantive judgment.9
[13] Accordingly, I am satisfied that there is no reason for me to depart from the usual approach to costs, particularly taking account of the principles that costs should follow the event and be determined in a predictable and expeditious manner.10 I accept Ms Hamill’s submission that costs on a 2B basis is appropriate. No issue was taken by Mr Lincoln as to the category proposed by or calculations made for the Attorney- General.
8 At [11].
9 Strathboss Kiwifruit Ltd v Attorney-General [2019] NZHC 62 at [5]–[9].
10 High Court Rules 2016, rr 14.2(1)(a) and (g).
[14] I therefore order that Mr Lincoln is to pay the Attorney-General’s costs and disbursements in the sum of $20,745.30, in accordance with the schedule to Ms Hamill’s memorandum seeking costs dated 24 January 2024.
McQueen J
Solicitors:
Crown Law office, Wellington for First Respondent
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