McDonald v District Court at Christchurch
[2021] NZHC 1289
•2 June 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-000240
[2021] NZHC 1289
BETWEEN CRAIG LEE MCDONALD
Applicant
AND
THE DISTRICT COURT AT CHRISTCHURCH
Respondent
Hearing: On the papers Appearances:
A J Bailey for Applicant
D L Harris for Respondent
Judgment:
2 June 2021
JUDGMENT OF DUNNINGHAM J RE: COSTS DECISION
This judgment was delivered by me on 2 June 2021 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
[1] On 9 March 2021 I gave a decision declaring directions made by the District Court requiring all unopposed bail applications on family violence charges to be decided by judicial officers only, were unlawful. I reserved the issue of costs. I am now in receipt of costs memoranda, with the applicant seeking 2B costs, and the respondent opposing any award of costs.
MCDONALD v THE DISTRICT COURT AT CHRISTCHURCH [2021] NZHC 1289 [2 June 2021]
The applicant’s submissions
[2] The primary reason the applicant considers costs are appropriate is because the respondent took what Mr Bailey describes as “an active and substantive adversarial role in attempting to oppose the applicant’s review”. In support of that submission Mr Bailey says:
(a)the respondent never filed a notice saying it would abide the decision of the Court;
(b)the respondent sought, and was given, leave to provide the Court “with context and background to the directives and general principles of the District Court’s jurisdiction and process”;
(c)at its own initiative, the respondent filed 12 pages of submissions in strong opposition to the applicant’s claims;
(d)the respondent advanced affirmative defences to the applicant’s claim being:
(i)that the Chief District Court Judge had powers to curtail the powers of Registrars in respect of family violence bail proceedings; and
(ii)the Chief District Court Judge, at the relevant time, did exercise such powers.
In Mr Bailey’s submissions these were unmeritorious defences.
[3] Mr Bailey also says that the respondent chose not to provide an affidavit from the purported decision maker, the then Chief District Court Judge, which prevented the Court from being provided the best evidence. As a result, the applicant says the respondent “entered into the fray” rather than, as is the usual case, allowing the
decision to “speak for itself”.1 In support of this submission Mr Bailey refers to the Supreme Court in Environmental Defence Society Inc v New Zealand King Salmon Co Ltd, where the Supreme Court said:2
[13] In rare cases a decision maker may be of assistance, for example, where there is a need for a contradictor or where it is important that the Court have a wider perspective than the parties may be able to provide. If a decision maker does appear, it should as far as possible act in a non-partisan fashion.
In this case, Mr Bailey notes the Court never appointed a contradictor, nor did it request that the respondent take such a role, and in his submission, the respondent did not act in an appropriately non-partisan fashion.
[4] As a further ground for costs, Mr Bailey says it appears that Crown Law was primarily instructed by the Ministry of Justice rather than the District Court. For example, when proposed hearing dates were being discussed, Crown Law indicated “the proposed date is not convenient for the Ministry”. Furthermore, one of the Ministry’s Registrars filed a detailed affidavit on behalf of the respondent. Mr Bailey says the Ministry could, without difficulty, have been a second respondent in this judicial review, noting it played a role in the decision by instructing its Registrars not to deal with family violence bail matters, and this showed a lack of understanding of the separation between the Court itself and the Ministry.
[5] Finally, in his reply memorandum, Mr Bailey notes that the filing of an appeal by the respondent reinforces his submission that it has taken an adversarial and partisan position, which has now forced the applicant to defend proceedings in the Court of Appeal.
[6] In addition, he says the appeal indicates a further ground for seeking costs. This is because the respondent has sought that a full Court hear its appeal on the grounds it raises issues of constitutional importance, including as to the independence of the judiciary, and the relationship between Judges and Registrars.
1 Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27].
2 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 41, [2014] 1 NZLR 717 (footnote omitted).
[7] In summary, given the respondent’s active opposition to the applicant’s claim, this is a case where it is appropriate to make an award of costs against the District Court, as the unsuccessful party.
The respondent’s submissions
[8] The respondent opposes an award of costs. It points out that it offered to file submissions and evidence to provide background to the Family Violence Bail Report Pilot and to the District Court’s jurisdiction and process, and to file a statement of defence to clarify the factual basis giving rise to the proceedings as it did in Owen v District Court at Invercargill.3 It is clear the High Court accepted these proposals would be useful and specifically asked that the respondent address the following three matters:4
(a)Does the respondent accept that the first and second directives (as defined in the statement of claim) were issued?
(b)If so, does the respondent accept that it issued these directives?
(c)Was there jurisdiction for the first and second directives to have been made?
[9] The respondent’s submissions go on to note that while I held the District Court acted unlawfully in directing that Registrars were not to determine bail on unopposed family violence charges, I did not consider the directions met the threshold for being struck down as unreasonable. Instead, I said that, but for the illegality identified, “they are manifestly reasonable for the reasons set out in Judge Walker’s affidavit”.5
[10] Ms Harris submits that there is no basis, as the applicant suggests, for criticising the steps taken by the District Court in this proceeding. It sought the prior approval of the Court for its participation in the proceedings. It did no more than what was contemplated in advance by filing submissions and affidavits to explain the genesis of the directions and the administrative arrangements which effected the
3 Owen v District Court at Invercargill [2017] NZHC 1105, [2018] NZAR 525.
4 McDonald v District Court at Christchurch HC Christchurch CIV-2020-409-240, 27 July 2020 at [4].
5 McDonald v District Court at Christchurch [2021] NZHC 446 at [48].
directions. Counsel only spoke to the relevant jurisdictional points. The applicant’s personal circumstances were never put in issue.
[11] Ms Harris rejects the suggestion that the District Court advanced unmeritorious defences and notes that the decision has been appealed to the Court of Appeal. She also rejects the criticism for failing to present an affidavit from the then Chief District Court Judge. She submits the evidence from Judge John Walker stating that he was tasked with the introduction of a pilot by the then Chief District Court Judge, was sufficient, and my findings regarding the delegation have been appealed.
[12] Ms Harris points out the fact counsel was instructed to represent the District Court through the Ministry of Justice was not inappropriate as suggested by the applicant. That submission misunderstands the role the Ministry of Justice plays in providing support to the judiciary. In short, the respondent rejects any criticism of the role it played in opposing the application.
[13] In any event, Ms Harris submits that where an application is brought against a judicial officer or judicial body, there is normally a requirement to show that the relevant judge acted perversely, oppressively or in bad faith before costs will be awarded. For example, in the Court of Appeal’s decision in Coroner’s Court v Newton, that Court held that costs will only be awarded (even in judicial review proceedings) against a judicial officer or body:6
… in the rarest of circumstances when such a judicial officer has done something which calls for strong disapproval. It is certainly not the practice to grant costs against Justices … merely because that person has made a mistake in law. It must be shown that the judicial officer concerned has acted perversely, oppressively or in bad faith.
[14] In the respondent’s submission, the question is not whether the applicant is deserving of costs, but whether an order for costs is necessary to express disapproval of the conduct of the judicial officer, saying the Newton decision sets “a high bar”. In this case, Ms Harris submits that any errors by the District Court do not fall into the rare category which calls for disapproval by this Court in the form of an order for
6 Coroner’s Court v Newton [2006] NZAR 312 (CA) at [44].
costs. The errors identified in my decision were those of law and process only, and there were no findings of perverse or oppressive conduct or bad faith.
[15] In the alternative, if an award of costs is warranted, then it should be referenced to the amount considered required to express disapproval of the judicial officer’s conduct, rather than to ensure the successful party receives “a reasonable contribution to costs actually and reasonably incurred”.7
Discussion
[16] This case has clear parallels with the decision in N v District Court of New Zealand sitting at Gisborne.8 In that case, a District Court Judge became concerned that a lawyer had misled him about the status of a bail application. Because of those concerns he initiated what he termed an abuse of process and contempt inquiry in relation to the lawyer’s conduct. However, in the course of the judicial review proceedings, the lawyer was successful in obtaining orders setting aside the Judge’s directions and ending the proposed inquiry. The lawyer sought costs on a 2B basis against the District Court on grounds similar to those raised in the present case, being that the respondent took an adversarial approach, but was ultimately unsuccessful. The respondent opposed the grant of costs relying, as here, on the principles in the Newton decision.9
[17] In N v District Court, Mallon J accepted that aspects of the respondent’s submissions engaged directly with the issues on review and supported the Judge having the jurisdiction he purported to exercise, rather than adopting a neutral stance. Nevertheless, she reached the following conclusion:
[9] Looked at overall, however, the sole purpose of the submissions was to assist the Court in a difficult case where there was no contradictor. The case called into question aspects of the District Court’s jurisdiction procedure, including the limits of the Court’s implied powers to uphold the administration of justice. I was assisted by Crown Law’s submissions, both those that addressed the general principles without reference to the particular conduct at issue, and those that presented arguments for why the Court might find the Judge had the power to proceed as he did.
7 Green v Police [2019] NZHC 1019 at [12].
8 N v District Court of New Zealand sitting at Gisborne [2020] NZHC 252.
9 Coroner’s Court v Newton, above n 6.
[18] Mallon J then considered whether costs should be ordered on some other ground. Mallon J expressed sympathy for the applicant, noting the Judge proceeded on an erroneous factual basis, leaving the applicant with little option but to commence the judicial review proceeding in which she prevailed, and so she was “deserving of an award of costs in this sense”.10 However, Mallon J concluded that being deserving of costs is not enough. In that case, the Judge had “genuine, albeit misguided concerns”11 but Mallon J concluded that “a costs order to express disapproval of the judicial officer’s conduct [was] not required here”.12
[19] Despite the applicant’s submissions in this case, I can find no reason to differ from Mallon J’s conclusions in N v District Court. Here, the respondent only participated with the consent and encouragement of the High Court Judge who case managed the proceedings. Had the District Court not participated in this way, it would have been necessary to appoint a contradictor who would have needed to put the same information before the Court regarding the reasons for making the directions at issue. Thus, while the respondent was actively involved in defending the proceedings that was appropriate in the circumstances of the case.
[20] I accept Mr McDonald did not have any deep personal connection to the outcome of the litigation as was the case for the applicant in N v The District Court. Mr McDonald obtained bail, albeit through a slightly more circuitous process, so he was taking a technical point, although one I accept was of some constitutional importance. This Court does not wish to dissuade people from taking technical points which have constitutional importance. Specific cases serve an important function in monitoring the institutions of the state. However, that consideration does not mean the threshold has been reached which would justify an award of costs against a judicial officer or body.
[21] Having regard to the principles in Coroner’s Court v Newton,13 I am not satisfied that there was judicial misconduct of the kind which warrants a costs order. Indeed, in this case, the behaviour could be considered less blameworthy in that the
10 N v District Court at Gisborne, above n 8, at [12].
11 At [13].
12 At [13].
13 Coroner’s Court v Newton, above n 6.
decisions which were impugned were made for entirely understandable reasons to ensure the safety of complainants in domestic violence cases. I also reject the submission that the defences were without merit.
[22] Accordingly, despite acknowledging that the applicant is deserving of costs, both as the successful party, and because of the importance of the issues he raised, I do not consider a costs award is appropriate as there is no requirement here to express disapproval of a judicial officer’s conduct.
[23]The application for costs is therefore declined.
Solicitors:
Hansen Law, Christchurch Crown Law, Wellington
Copy To:
A J Bailey, Barrister, Christchurch
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