O'Neill v Accident Compensation Corporation

[2017] NZHC 2713

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2477 [2017] NZHC 2713

BETWEEN

CHRISTOPHER JOSEPH OʼNEILL

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

First Respondent

FAIRWAY RESOLUTION LIMITED Second Respondent

DALE TODD Third Respondent

LINDY ALICE CLARK Fourth Respondent

Hearing:	On the papers
Counsel:	Applicant in person D Tuiqereqere for First Respondent J B Opie for Second to Fourth Respondents
Judgment:	7 November 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 7 November 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Medico Law Limited, Auckland

Buddle Findlay, Wellington

OʼNEILL v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 2713 [7 November 2017]

[1]      I have before me memoranda as to costs on behalf of the first and second respondents. I declined Mr O’Neill’s judicial review application.1 The first respondent, the Accident Compensation Corporation (ACC), seeks costs in the order of $7,000 as being appropriate and reasonable, having regard to all the circumstances, including the fact the applicant is a layperson.  While the first respondent’s submissions were filed out of time, there was no prejudice to Mr O’Neill. Leave is therefore granted to file out of time. The second respondent, FairWay Resolution Ltd (FairWay), seeks costs on a 2B basis in the sum of $26,091 plus disbursements of $330.2

[2]      Mr O’Neill opposes the application for costs on the basis that:

(a)       the Court accepted his case in the knowledge that he is on a fixed income (a pension);

(b)      all fees had previously been waived;

(c)       an award of costs would be a form of entrapment and would deter the poor from the pursuit of justice;

(d)      the legislation affords him a right to seek justice;

(e)       the Court had a duty to settle the issue of costs from the outset, including by way of security for costs;

(f)       the respondents knew his circumstances; (g)    he has no money to pay costs;

(h)      I am a “pervert”; and

(i)       costs will be awarded because the government will tell me to do so.

1      O’Neill v Accident Compensation Corporation [2017] NZHC 2373.

2      Strictly costs on a 2B basis would be $29,436, but FairWay only sought 0.5 allocated days for step

32 in sch 3 of the High Court Rules 2016. This was on the basis ACC took primary responsibility for preparation of the common bundle and chronology. Ordinarily two days would be allocated for step 32.

Assessment

[3]      Ordinarily, costs will be awarded to the successful party in cases like this on a

2B basis.3   There must be good reason to depart from this basic starting point.  Those reasons are set out at r 14.7 of the High Court Rules 2016.

[4]      Of those reasons, only two might apply here:

(a)      The proceeding concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding.4

(b)Some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.5

[5]      In relation to the first reason, there were meritorious public interest elements to Mr O’Neill’s proceeding, in particular, relating to:

(a)       the privacy rights and interests of ACC applicants;

(b)      the process to be followed by reviewers under Part 5 of the Accident

Compensation Act 2001; and

(c)       the legality of the executive reviewer process employed by FairWay.

[6]      Balanced against this, aspects of Mr O’Neill’s claims were meritless, including the allegations the reviewers and the first respondent conspired against him.   Mr O’Neill was also prone to scandalous and outrageous claims, including that FairWay employees, counsel and now the Court, are “perverts”. I assume Mr O’Neill refers to perverting the course of justice.

[7]      In relation to the second reason, only one of the factors identified by Mr

O’Neill warrants serious consideration. In litigation of this type, involving ACC

3      High Court Rules 2016, rr 14.2(1)(a), 14.3 and 14.4.

4      Rule 14.7(e).

5      Rule 14.7(g).

claimants of limited means, this Court is mindful that meritorious applicants should not be unfairly discouraged by an award of costs.   Problematically, however, the scandalous nature of some of Mr O’Neill’s allegations would ordinarily be reflected in an increased award.6

[8]      One further aspect needs to be considered. ACC and FairWay shared the same interest in the proceeding. FairWay was engaged by ACC to perform the review function, in terms of s 137 of the Accident Compensation Act. While I found the work of both counsel to be of considerable assistance, having regard to the nature of the proceedings, only one counsel was needed to defend the review decisions.

[9]      Overall,  having  regard  to  the  legitimate  public  interest  elements  of  the litigation, I make a single order of costs of $19,624, being two thirds of what would be available on a 2B basis,7  plus disbursements for $110 in respect of the first respondent, and $330 in respect of the second respondent.

Order

[10]     Accordingly, there shall be an order of costs, as noted, of $19,624, to be shared between the first and second respondents. Disbursements shall also be awarded as set

out at [9].

6      In terms of rule 14.6(3)(b)(ii).

7      Allocating a full two days for step 32, given the costs award is to be shared between the first and second respondents.