Nesbitt v Chief Executive of Ministry of Business, Innovation and Employment

[2022] NZHC 249

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2109

[2022] NZHC 249

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review of decisions made pursuant to Section 15L COVID-19 Public Health Response (Isolation and Quarantine) Order 2020

BETWEEN

JESSICA NESBITT

Applicant

AND

CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT

Respondent

CIV-2021-404-2110

BETWEEN

ANNA CLARK and ADAM JOSEPH CLARK
Applicants

Continued overleaf

Hearing:

On the papers

Appearances:

T D Clee for applicants

P H Courtney and S M Perera for respondent

Date of judgment:

23 February 2022

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 23 February 2022 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

NESBITT v CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT –

Costs [2022] NZHC 249 [23 February 2022]

ANDCHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT
Respondent

CIV-2021-404-2121

BETWEENEMMA LOUISE WATERS and JOSEF MOU MOU WATERS

Applicants

ANDCHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT
Respondent

CIV-2021-404-2122

BETWEENMELE FALAHOLA ELONE and SHANE POTTS

Applicants

ANDCHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT
Respondent

CIV-2021-404-2123

BETWEEN  IOANNA PETRAKIS

Applicant

ANDCHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT
Respondent

[1]                 In these five proceedings — for judicial review of the respondent’s decisions refusing the applicants managed isolation allocation,1 all reconsidered to variable ends and agreed moot and dismissed accordingly2 — the applicants each seek 2B costs from

1      COVID-19 Public Health Response (Isolation and Quarantine) Order 2020, cl 15I(2) (now COVID-19 Public Health Response Act 2020, s 32K

2      Nesbitt v MBIE HC Auckland CIV-2021-404-2109, 17 and 24 November, and 1 December, 2021.

the respondent for their step of commencing the proceeding ($7,170) and an “instructing solicitor fee” ($200). The applicants’ counsel, Tudor Clee, is express he acted “pro bono”, without charging the applicants any fee.

[2]                 The respondent came to no different conclusion on reconsideration of the Nesbitt, Petrakis and Waters’ decisions, each of whom subsequently obtained access to managed isolation through the online allocation system. The respondent’s reconsideration of the Clarks’ and Elone and Potts’ decisions granted them offline allocations, on grounds of their changed circumstances (including more imminent due birth dates) identified for reconsideration. Given those reconsiderations and their consequences, I disregard the applicants’ contentions as to the merits of their claims, especially as primarily articulated by reference to other proceedings.

[3]                 It should be unnecessary to recount the general principles applying to determination of costs, prime among them being the party who fails with respect to   a proceeding should pay costs to the party who succeeds;3 costs are payable according to scale applied by reference to “each step reasonably required in relation to the proceeding”;4 and “so far as possible the determination of costs should be predictable and expeditious”.5

[4]                 On none of the proceedings can the respondent be said to have failed or the applicants be said to have succeeded. I am not prepared to assume the respondent would not have granted the allocations but for the proceedings’ issue. No orthodox ‘letter before proceedings’ is brought to my attention.6 Instead the applicants have occupied scarce Court time and resources to achieve their ends without the Court’s intercession. The issue of proceedings cannot be said “reasonably required”.

[5]                 While the principle “an award of costs should not exceed the costs incurred by the party claiming costs”7 is subject to my discretion to award costs,8 the fact of

3      High Court Rules 2016, r 14.2(1)(a).

4      Rule 14.2(a)(c).

5      Rule 14.2(1)(g).

6      Matthew Smith NZ Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington, 2016) at 1.1.

7      High Court Rules, r 14.2(1)(f).

8      Rule 14.1.

counsel acting ‘pro bono’9 may not be a material consideration.10 In any event, I am not satisfied any of the present applications, brought without prior notice to the respondent, may be characterised then brought “for the public good or in the public interest”, but only in each applicants’ private interest.

[6]                 Last, nothing in costs’ principle or practice warrants an award of an “instructing solicitor fee”: scale costs are a contribution to, not indemnity of, a successful party’s legal expenses. The statutory threshold for indemnity costs11 requires “distinctly bad behaviour”,12 of “flagrant” or “very unreasonable” misconduct.13 Nothing of that nature is established here. And no instructing solicitor is identified on the filed documents.

[7]It is predictable and expeditious no costs be payable in such circumstances.

[8]The applicants’ applications for costs are dismissed. Costs lie where they fell.

—Jagose J

Counsel/Solicitors:

T D Clee, Barrister, Auckland Crown Law, Wellington

9      Peter Spiller New Zealand Law Dictionary (9th ed, LexisNexis, Wellington, 2019): definition of “pro bono publico”:

(Latin, for the public good) Legal work performed free or at a reduced fee, for the public good or in the public interest. Work is often performed pro bono on issues of broad community concern or with significant impact on disadvantaged or marginalised groups. See Re Fidow (a debtor) [1989] 2 NZLR 431, 444–5 (“the role of protectors of the public interest”).

10 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167, (2014) 25 PRNZ 637 at [22]. Compare Marino v Chief Executive of the Department of Corrections [2017] NZCA 2 at [3].

11     High Court Rules, r 14.6(4).

12     Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [26].

13     Prebble v Huata (No 2) [2005] NZSC 18, [2005] 2 NZLR 467 at [6]; and Flujo Holdings Pty Ltd v Merisant Co Inc [2018] NZCA 226 at [34].