Nottingham v Attorney-General - [2022] NZHC 1060

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1793

[2022] NZHC 1060

UNDER Judicial Review Procedure Act 2016, Habeas Corpus Act 2001 and Declaratory Judgments Act 1908

BETWEEN

DERMOT GREGORY NOTTINGHAM and ROBERT EARLE MCKINNEY

Applicants

AND

ATTORNEY-GENERAL

Respondent

Hearing: On the papers

Counsel:

Applicants in person

S Kinsler and M Clarke-Parker for Respondent

Judgment:

16 May 2022

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 16 May 2022 at 12:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Meredith Connell (Office of the Crown Solicitor) Copy to: Applicants

NOTTINGHAM v ATTORNEY-GENERAL [2022] NZHC 1060 [16 May 2022]

[1] On 9 March 2022 I gave judgment striking out three proceedings brought by the plaintiffs.1 The Attorney-General now applies for costs.

Background facts

[2] The plaintiffs applied for judicial review, declaratory orders, and a writ of habeas corpus. Each proceeding was a challenge to the Government’s actions taken in response to the COVID-19 pandemic. They were case managed together.

[3] The judicial review proceeding sought orders striking down the COVID-19 (Public Health Response) Act 2020 and related legislation, as well as orders that the Government repay loans, compensate those impacted by lockdowns and vaccination, and that the Prime Minister apologise. I found the Court had no jurisdiction to grant these orders.2

[4] The declaratory orders sought were a declaration that s 10 of the New Zealand Bill of Rights Act 1990 is a non-derogable right, and other orders necessary to enforce this. I found the terms of the orders sought were too broad and vague, and s 10, which relates to medical experimentation, was not engaged.3

[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 2001.4 I found I was bound by that decision.5 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

Defendant’s submissions

[6] The Attorney-General submits 2B costs are appropriate, under r 14.8(1)(a) of the High Court Rules 2016 (Rules), which provides that costs on opposed interlocutory

1      Nottingham v Attorney-General [2022] NZHC 405.
2 At [28].
3      At [34]–[35].
4      Nottingham v Ardern [2020] NZCA 144, [2020] 2 NZLR 207 at [25].
5      Nottingham v Attorney-General, above n 1, at [37].
6 At [37].

applications must be fixed in accordance with the Rules when the application is determined. The Attorney-General applies for costs as follows:

Costs on a 2B basis (per day)

$2,390.00

1

Commencement of defence by defendant (judicial review proceeding)

$4,780.00

1

Commencement of defence by defendant (declaratory orders proceeding)

$4,780.00

1

Commencement of defence by defendant (habeas corpus proceeding)

$4,780.00

11

Filing memorandum for first or subsequent case management conference or mentions hearing (memo of 2 November 2021)

$956.00

11

Filing memorandum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nottingham v Attorney-General

Details

AGLC: Nottingham v Attorney-General [2022] NZHC 1060
Case: [2022] NZHC 1060
Decision Date: 16 May 2022

CaseChat Overview and Summary

This case involved an application for costs brought by the Attorney-General against the applicants, Dermot Gregory Nottingham and Robert Earle McKinney, who had previously brought unsuccessful proceedings against the Government in relation to the COVID-19 pandemic. The Court was required to determine whether the Attorney-General's application for costs was appropriate, and if so, the amount of those costs. The applicants argued that the costs should not be awarded because the substantive judgment was wrongly decided, among other reasons.

The Court found that while the applicants' arguments about the merits of the substantive judgment could not be addressed on the application for costs, it was not precluded from making a costs order. The Court noted that the public interest in the proceedings was minimal and that the applicants did not act reasonably by seeking remedies outside the Court's jurisdiction and attempting to relitigate an issue already determined by the Court of Appeal. The Court also held that the general rule on costs in habeas corpus applications did not apply, and that financial hardship was no barrier to an award of costs. The Court accepted the Crown's responsible position in relation to recovery, mindful of the context in which the costs application was made.

The Court granted the Attorney-General's application for costs, ordering the applicants to pay the total costs and disbursements of $30,150.

Orders