Nottingham v Attorney-General - [2023] NZSC 167

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 84/2023
[2023] NZSC 167

BETWEEN	DERMOT GREGORY NOTTINGHAM First Applicant ROBERT EARLE MCKINNEY Second Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	Applicants in person S L K Shaw and H T Reid for Respondent
Judgment:	18 December 2023

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicants must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

The applicants, Mr Nottingham and Mr McKinney, commenced three proceedings in the High Court (one being an application for habeas corpus) challenging the Government’s response to the COVID-19 pandemic. Woolford J struck these proceedings out.[1] He later awarded costs against the applicants.[2] What follows concerns only the costs judgment.
[1]Nottingham v Attorney-General [2022] NZHC 405.
[2]Nottingham v Attorney-General [2022] NZHC 1060 [HC costs decision].
The applicants filed a notice of appeal in the Court of Appeal against the costs decision. After an unsuccessful application to dispense with security for costs on that appeal, the applicants failed to pay security, apply for a fixture or file the case on appeal. The appeal was accordingly deemed abandoned, pursuant to r 43(1) of the Court of Appeal (Civil) Rules 2005. The applicants then applied for review of the Deputy Registrar’s decision on security for costs, along with a necessary application for extension of time under r 43(2).
Two Judges of the Court of Appeal dismissed this latter application on the papers.[3] The proposed appeal, they said, lacked public interest or merit.[4] The applicants had sufficient time to comply with r 43 or apply for an extension and failed to do so, had not satisfactorily explained why they did not comply with r 43, and were well-familiar with the applicable appellate processes, Mr Nottingham having run a similar argument unsuccessfully before.[5]
[3]Nottingham v Attorney-General [2023] NZCA 122 (Brown and Clifford JJ).
[4]At [15].
[5]At [13]; see Nottingham v Maltese Cat Ltd [2018] NZCA 387.
It is from that judgment that the applicants seek leave to appeal. Their submissions address the alleged merits of their substantive claims, and then pose as a question of law:
When should the discretion to award costs (and significant costs) in a matter that addresses the “great writ” [i.e. habeas corpus] be given, and was this such a case, and should the court go further and address these pertinent interrelated questions due to the possibility that this type of conduct could become prevalent by Governments?

Our assessment

The criteria for leave to appeal are not met.[6] The substantive merits of the underlying proceedings (or the lack thereof) are not in issue: the applicants did not appeal against Woolford J’s substantive judgment. The award of costs following the event was orthodox. While a proportion of those costs is attributable to the habeas corpus proceeding, there is no absolute bar on that course.[7] Relevantly, Woolford J noted:[8]
[5] The plaintiffs had already unsuccessfully applied for habeas corpus. On appeal from that decision the Court of Appeal found they were not detained in the sense intended by the Habeas Corpus Act 2001. I found I was bound by that decision. I also noted it appeared the plaintiffs were using the habeas corpus procedure as a means of obtaining a priority fixture for their other proceedings.
[6]Senior Courts Act 2016, s 74.
[7]See AN v Counties Manukau District Health Board [2016] NZCA 226, [2016] NZFLR 468.
[8]HC costs decision, above n 2 (footnotes omitted), referencing Nottingham v Ardern [2020] NZCA 144, [2020] 2 NZLR 207 at [25].
We do not consider the question of an award of costs against the applicants in these circumstances raises a matter of general or public importance which the interests of justice necessitate be considered by this Court.[9] This is not an appropriate case to revisit generally the approach to be taken to costs on an unsuccessful application for habeas corpus. Nor do we consider a substantial miscarriage of justice is likely if the appeal is not heard.[10]

Result

[9]Senior Courts Act, s 74(2)(a).

[10]Section 74(2)(b); see Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].

The application for leave to appeal is dismissed.
The applicants must pay the respondent costs of $2,500.

Solicitors:
Meredith Connell, Wellington for Respondent

Details

AGLC: Nottingham v Attorney-General [2023] NZSC 167
Case: [2023] NZSC 167
Decision Date: 18 December 2023

CaseChat Overview and Summary

The Supreme Court of New Zealand dismissed an application for leave to appeal brought by Dermot Gregory Nottingham and Robert Earle McKinney against a judgment awarding costs to the Attorney-General. The applicants had previously brought three proceedings in the High Court challenging the government’s response to the COVID-19 pandemic, which were struck out by Woolford J. They later lost an appeal against a costs order made in relation to these proceedings and subsequently applied for leave to appeal to the Supreme Court. The applicants argued that the Court of Appeal had erred in refusing to review the security for costs decision, which led to the abandonment of their appeal, and that the costs awarded in the High Court were unjust and should be revisited. The court held that the application for leave to appeal did not meet the criteria under the Senior Courts Act 2016, as the substantive merits of the underlying proceedings were not in issue and the award of costs was orthodox. The court also found that the question of costs in these circumstances did not raise a matter of general or public importance that required consideration by the Supreme Court. The applicants’ leave to appeal was dismissed, and they were ordered to pay the respondent’s costs of $2,500.

The legal issues in this case centred on the criteria for leave to appeal to the Supreme Court and the appropriate approach to awarding costs in unsuccessful applications for habeas corpus. The applicants argued that the Court of Appeal had erred in refusing to review the security for costs decision, which led to the abandonment of their appeal. They also contended that the costs awarded in the High Court were unjust and should be revisited, particularly in light of the potential for similar conduct by governments in the future. The court needed to determine whether the application for leave to appeal met the criteria under the Senior Courts Act 2016, which requires the Court to consider whether the appeal raises a matter of general or public importance or whether a substantial miscarriage of justice is likely if the appeal is not heard. The court also had to consider the appropriate approach to awarding costs in unsuccessful applications for habeas corpus, particularly in light of the applicants’ arguments that the costs awarded in this case were unjust and should be revisited.

The court dismissed the application for leave to appeal, finding that the applicants had not met the criteria under the Senior Courts Act 2016. The court held that the substantive merits of the underlying proceedings were not in issue, as the applicants had not appealed against the substantive judgment of Woolford J. The court also found that the award of costs following the event was orthodox, and that there was no absolute bar on awarding costs in relation to an unsuccessful application for habeas corpus. The court noted that a proportion of the costs was attributable to the habeas corpus proceeding, but that there was no reason why costs should not be awarded in such cases. The court also found that the question of costs in these circumstances did not raise a matter of general or public importance that required consideration by the Supreme Court, and that a substantial miscarriage of justice was not likely if the appeal was not heard. The court therefore dismissed the application for leave to appeal and ordered the applicants to pay the respondent’s costs of $2,500.

In conclusion, the Supreme Court of New Zealand dismissed an application for leave to appeal brought by Dermot Gregory Nottingham and Robert Earle McKinney against a judgment awarding costs to the Attorney-General. The court found that the application did not meet the criteria for leave to appeal under the Senior Courts Act 2016, as the substantive merits of the underlying proceedings were not in issue and the award of costs was orthodox. The court also found that the question of costs in these circumstances did not raise a matter of general or public importance that required consideration by the Supreme Court, and that a substantial miscarriage of justice was not likely if the appeal was not heard. The applicants’ leave to appeal was dismissed, and they were ordered to pay the respondent’s costs of $2,500.

Orders