McVicar v New Zealand Parole Board

[2015] NZHC 2627

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-692 [2015] NZHC 2627

UNDER

the Judicature Amendment Act 1972

IN THE MATTER

of a decision made pursuant to the Parole
Act 2002

BETWEEN

GARTH MCVICAR, PETER JENKINS AND GIL ELIOT

Plaintiffs

AND

THE NEW ZEALAND PAROLE BOARD First Defendant

RODNEY MICHAEL PETRICEVIC Second Defendant

Hearing:	On the papers
Counsel:	D A Garrett for Plaintiffs F M Cooke QC and V Owen for First Defendant No appearance for Second Defendant
Judgment:	27 October 2015

JUDGMENT OF ELLIS J (Costs)

I direct that the delivery time of this judgment is

2 pm on the 27th day of October 2015

MCVICAR v THE NEW ZEALAND PAROLE BOARD [2015] NZHC 2627 [27 October 2015]

[1]      This judgment deals with costs, further to my decision of 4 September 2015 in which I declined the interim orders sought by the plaintiffs.1   Although not made explicit  in  my  judgment  the  parties  recognise  that  the  necessary  effect  of  that decision (in which I held that the plaintiffs had no standing judicially to review the impugned decision) is that their claim as a whole cannot succeed. As I understand it, the plaintiffs will discontinue their claim once the issues of costs have been resolved.

[2]      The parties’ position on costs can simply be stated.

[3]      The Board says that costs should follow the event in the usual way.   But Mr Cooke QC also submitted that the speed with which the hearing was brought on, and the consequent conditions of urgency under which its submissions had to be prepared,  together  with  the  significant  issues  of  principle  at  stake  warrants  a category 3 classification.

[4]      For their part, the plaintiffs say that their charitable status and the public interest in the issue raised by the application favours permitting costs to lie where they fall.

Discussion

[5]      In the course of my substantive judgment in this matter I said:2

As Mr Cooke submitted, the authorities indicate that questions of standing are intimately related to the type of challenge in question.   If a challenge raises some very clear questions of legality of potentially wide public relevance, then the Courts will be little concerned with the identity of the person bringing the issue to Court.  As Lord Diplock said, that is reflection of the operation of the rule of law.  The high watermark of the operation of that principle was, perhaps, the Court of Appeal’s decision in the Finnigan v New Zealand Rugby Football Union Inc.

I also agree that the present is not a challenge of that character. Notwithstanding Mr Garrett’s eloquent submissions to the contrary, the Trust’s application for judicial review does not raise any question of law of that broad or publicly relevant kind.   Rather, it invites the High Court to reconsider the Parole Board’s decision on the evidential merits and, in particular, its view of the weight that could be placed on the psychological

1      McVicar v New Zealand Parole Board [2015] NZHC 2153.

2      At [46] – [50], citations omitted.

report obtained by Mr Petricevic and the correctness of the necessarily predictive assessment of risk that the Board then made.

I am fortified in my view that this is one of those rare cases where an applicant for review does not have standing by my brief analysis of the statutory position regarding the participation by victims in the parole process outlined above.  There is real force in Mr Cooke’s submission that to permit judicial review of the process by the Trust (or by a member of the public) would cut across a sophisticated and carefully thought out statutory scheme.

Even if the Trust had had some involvement in the statutory process (which it did not) it could only have been on behalf of particular Bridgecorp investors.  In the absence of some official status or mandate it is difficult to see why the Trust has any more interest (in the relevant, narrow, sense) in the grant of parole to Mr Petricevic than any other member of the public.

Conversely, there is, I think, a distinction to be drawn between the present case and those cases involving applications for review by "public interest" bodies, where standing exists, notwithstanding the absence of any direct or personal connection with the matter at issue.  That is not because the Trust does not have the support of or, in a broad sense represent, one sector of the general  public.     Rather,  it  is  because  parole  decisions  about  specific prisoners do not engage the public interest in a relevant and meaningful sense.   That point is neatly demonstrated by the point just made above, namely  that,  in  each  case,  there  will  be  individuals  with  a  much  more specific and direct interest in a particular parole decision who are able to participate in the process (and potentially to bring review proceedings) if they wish to.  There is no gap to be filled in the public interest here.

[6]      It seems to me that these findings really put paid to the plaintiffs’ contention that some departure from the usual costs’ principles is warranted by the public interest aspect of their claim. And while (as I also recorded in my judgment) I accept that the Trust has charitable status I also observed that its works and aims have a

political aspect that differentiate it from (some) other charities.3

[7]      Accordingly  I  am  unable  to  conclude  that  there  is  anything  sufficiently special about either the Trust or the present claim that would warrant an exemption from the usual costs’ burden.

[8]      Equally however, I am not prepared to make a category 3 classification for costs  purpose,  either.    While  I was,  and  remain,  most  grateful  for  the  careful, thorough and measured submissions made by the Board at very short notice, this is not the first time in recent history that the arguments advanced before me have been

made on its behalf.   I refer in particular to  Whanganui District Council v New

3 At [30].

Zealand Parole Board where the Board was also represented by Mr Cooke although, on that occasion, he did not prevail on the standing issue.4   So in my view category 2 is appropriate here.

[9]      Accordingly I direct that the plaintiffs are to pay the first defendant’s costs in relation to the interim orders application on a 2B basis.  I make no order in relation to the second defendant.

“Rebecca Ellis J”

Solicitors:         Rainey Law, Auckland, for Plaintiffs

F M Cooke QC and V Owen, Wellington for First Defendant

P J Davison QC, Auckland, for Second Defendant

4      Whanganui District Council v New Zealand Parole Board [2012] NZHC 2248.