N v District Court of New Zealand, sitting at Gisborne

[2020] NZHC 252

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2019-404-1076

[2020] NZHC 252

UNDER

the Judicial Review Procedure Act 2016, the District Court Act 2016 and the New
Zealand Bill of Rights Act 1990

IN THE MATTER OF

Directions made by the first respondent that the applicant appear and answer questions in an investigation

BETWEEN

N

Applicant

AND

DISTRICT COURT OF NEW ZEALAND, SITTING AT GISBORNE

First Respondent

NEW ZEALAND POLICE
Second Respondent

NEW ZEALAND LAW SOCIETY

Proposed Intervener

On the papers

Counsel:

B V Hunt and P S Davidson for Applicant D J Perkins for First Respondent

No appearance for Second Respondent Proposed Intervener abides

Judgment:

24 February 2020

JUDGMENT OF MALLON J

(Costs)

[1]                 This proceeding arose when a District Court Judge became concerned that a lawyer had misled him about the status of a bail application. He instituted what he

N v DISTRICT COURT OF NEW ZEALAND, SITTING AT GISBORNE [2020] NZHC 252 [24 February 2020]

termed an abuse of process and contempt inquiry in relation to the lawyer’s conduct because of his concerns.

[2]                 The lawyer was successful in obtaining urgent interim relief which stayed the Judge’s direction that the lawyer attend the District Court for the purposes of the inquiry. On the substantive judicial review the lawyer successfully obtained orders setting aside the Judge’s directions and ending the abuse of process and possible contempt inquiry.1

[3]                 The lawyer (the applicant) seeks costs on a 2B basis against the District Court (the first respondent). This is opposed.

[4]                 Both parties referred to the High Court Rules 2016 in support of their respective positions. As it is put in McGechan on Procedure, decisions on costs in judicial review proceedings by and large follow those principles.2 Of present relevance are two principles:

(a)First, the principle that “all matters are at the discretion of the court if they relate to costs … of a proceeding.”3

(b)Secondly, the general principle is that “the party who fails with respect to a proceeding … should pay costs to the party who succeeds”.4

[5]                 A costs order under the High Court Rules relates to steps taken in a proceeding, not conduct before a proceeding commences. Where the proceeding is an application for judicial review of powers exercised by a judicial officer, the judicial officer’s decision-making is the subject of the proceeding. The application is brought against the court or tribunal of which the person is an officer. 5 The court or tribunal will usually abide the application. In that case, the court or tribunal has not failed in the

1      N v District Court of New Zealand, sitting at Gisborne [2019] NZHC 2744.

2      Andrew Beck and Others McGechan on Procedure (looseleaf ed, Brookers, updated to 10 July 2009) at [HR Pt 14.11].

3      High Court Rules 2016, r 14.1(1)(a).

4      Rule 14.2(1)(a).

5      Judicial Review Procedure Act 2016, r 9(3).

proceeding when the judicial review application succeeds and ordinarily a costs order against the court or tribunal is not made.

[6]                 A judicial review application commonly arises in proceedings where there are opposing parties before a court or tribunal. In such a case, there usually will be an opposing party to the judicial review when the court or tribunal abides. Sometimes there is not. There was no opposing party in this case because the powers were exercised against the lawyer in a criminal proceeding, but the powers related to the lawyer’s obligations to the Court. The prosecution and the defendant had no direct interest in this.

[7]                 Crown Law counsel appeared for the District Court. It did so seeking to assist the Court with reference to general principles rather than to support the challenged inquiry and directions directly. The Court does not normally order costs against a party who appears to assist the Court and who does in fact assist.

[8]                 The applicant refers to passages from Crown Law’s submissions, seeking to demonstrate that the approach taken was in fact adversarial. I accept that aspects of the submissions directly engaged with the circumstances under review and supported the Judge having the jurisdiction he purported to exercise.

[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 and 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.

[10]              That leaves for consideration whether I should exercise my discretion to order costs against the first respondent on some other ground. The first respondent submits that costs orders are generally not made against Judges or courts except in the rarest of circumstances which call for strong disapproval and this is not one of those cases.

The applicant submits the Judge’s conduct in this case was oppressive and the Court should express its disapproval of the conduct with an order for costs.

[11]The leading case in New Zealand on this point is Coroner’s Court v Newton.6

[44]      In this subject area it is important to keep first principle squarely in mind. Costs will only be awarded (even in judicial review proceedings) against judicial officers such as Justices or Coroners 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 or a Coroner 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.

[45]      Two reported examples will suffice. In Magistrates Court of Victoria at Heidelberg v Robinson … Mr Robinson had pleaded guilty to a charge of intentionally damaging property. The record showed that not only had the Magistrate been brusque and offensive but when counsel (properly, in the view of the Victoria Court of Appeal) requested that on that account the Magistrate disqualify himself, his conduct descended to another level altogether. As the Court of Appeal characterised it, “The Magistrate [then] behaved like a bully and worst of all threatened the solicitor with instant committal for contempt if he persisted in his application”. The immensity of the power to commit for contempt was abused in a way which that Court found to be “deplorable”. Brooking JA referred to the need to show “a clear case of serious misconduct

– misconduct of such a nature as to justify an award of costs”, and  Buchanan JA used the terminology, “serious misconduct or serious impropriety … [constituting] a flagrant breach of elementary principles of justice”. On the other hand, in Regina v Bristol Justice ex parte Hodge ([43] above]), following a divorce a father was ordered to make periodic payments relating to two children of the marriage. Arrears accrued. The mother applied for enforcement, but the Justices remitted arrears of several hundred pounds without hearing from the mother. The Justices were distinctly in error, for the reasons given in that judgment, in not first hearing from the mother. In the result, the High Court Judge (on a judicial review application) quashed the remission decisions and directed that the enforcement application be reheard by a fresh panel of Justices. Significantly, counsel for the successful applicant is recorded as having felt unable to press an application for costs by virtue of the principle to which we have already referred, and abandoned that application.

[46]      In short, errors of law will not by themselves support an award of costs; errors of process will normally not support an award of costs; and judicial misconduct in the way in which the hearing is conducted will normally have to be of a particularly egregious kind for costs to be awarded. The question is not whether the applicant is in some sense “deserving” of costs – in a large sense, such a person often will be. The critical point is that the order for costs is an expression of disapproval of the conduct of the judicial officer in character. There must be a clear basis for such an order.

…

6      Coroner’s Court v Newton [2006] NZAR 312.

[49] As to wasted costs, we have said enough to indicate that wasted costs alone could not support an order where, as in this case, the judicial officer has not taken part in the judicial review proceedings and unreasonably created unnecessary costs. If a judicial officer inappropriately participates in judicial review proceedings, then the high threshold referred to at [46] above may not apply. But we do not need to decide the point in this case.

[12]              I have some sympathy for the applicant in this case. Her ethical obligations to the Court were under challenge by the Judge. He proceeded on an erroneous factual basis when the correct factual basis was available through the Court recording system. Moreover, the discrepancy between what the applicant conveyed to the Court and the correct position was minor and it was immaterial to both the criminal proceeding in which the applicant was instructed and to the running of the Court more generally. The applicant had little option but to commence the judicial review proceeding in which she prevailed. She is deserving of an award of costs in this sense.

[13]              However, as Coroner’s Court v Newton makes clear, being deserving of costs is not enough. Judicial misconduct in the way in which a hearing is conducted will normally have to be of a particularly egregious kind for costs to be awarded. I consider the situation did not meet this standard.7 The Judge had genuine, albeit misguided, concerns. He was overly persistent in his pursuit of those concerns but in this persistence he was endeavouring to discharge his judicial functions properly. Once the judicial review application was brought, he did not try to persevere with his inquiry (in any event, interim orders prevented that) or to support his position in this Court. I consider a costs order to express disapproval of the judicial officer’s conduct is not required here.

[14]The application for costs is therefore declined.

Mallon J

7      Compare with Magistrates’ Court of Victoria at Heidelberg v Robinson (2000) 2 VR 233.