Lincoln v Attorney-General - [2024] NZHC 326

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not to seek costs, when the two formal warnings issued by the Police (which are at issue in the proceeding) were withdrawn, following commencement of this litigation, consideration of relevant Police policy and the decision of this Court in S v Commissioner of Police.4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…

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.

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Details

Case: [2024] NZHC 326
Decision Date: 27 February 2024

CaseChat Overview and Summary

In the case of Lincoln v Attorney-General, the applicant, Richard Lincoln, sought judicial review of decisions made by the New Zealand Police concerning Geoffrey Barclay Cavell. The primary focus of the review was two formal warnings issued by the police to Mr. Cavell. The Attorney-General was the first respondent in this case, representing the interests of the New Zealand Police. The court was tasked with determining the legality of the police's actions and whether they adhered to the principles of natural justice and procedural fairness. Additionally, the court had to decide whether the formal warnings violated any legal rights of Mr. Lincoln, who had obtained a civil restraining order against Mr. Cavell.

The legal issues before the court involved the assessment of whether the police decisions were lawful and whether they breached any rights protected under the law, specifically focusing on natural justice and prosecutorial discretion. Furthermore, the court needed to address the question of costs, as the Attorney-General sought to recover costs from Mr. Lincoln on a standard basis, arguing that costs follow the event and should be awarded to the successful party. Mr. Lincoln, on the other hand, opposed any costs order, arguing that the court did not adjudicate the central issues and that the imposition of costs would result in significant financial hardship for him.

The court, in its judgment, dismissed Mr. Lincoln's application for judicial review, finding that the police decisions were lawful and did not breach any legal rights. It was determined that the formal warnings were not unlawful, and the decision not to prosecute Mr. Cavell was a justifiable exercise of prosecutorial discretion. Regarding the costs, the court held that financial hardship alone was not a sufficient ground to avoid a costs order. The court found that there were no exceptional circumstances justifying a departure from the usual approach to awarding costs, and it accepted the Attorney-General's submission that costs should be awarded on a standard basis. The court ordered that Mr. Lincoln pay the Attorney-General's costs and disbursements amounting to $20,745.30.

Orders