O'Neill v Attorney-General

[2018] NZHC 1917

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2475

[2018] NZHC 1917

BETWEEN

CHRISTOPHER JOSEPH O’NEILL

Applicant

AND

ATTORNEY-GENERAL OF NEW ZEALAND

First Respondent

THE DEPARTMENT OF CORRECTIONS
Second Respondent

SERCO NEW ZEALAND

Third Respondent

Hearing:

On the papers

Appearances:

C J O’Neill, Applicant in person

S M Earl for First and Second Respondents
H J P Wilson and L Clark for Third Respondent

Judgment:

31 July 2018

JUDGMENT NO 2 OF PALMER J

(Costs)

This judgment is delivered by me on 31 July 2018 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Counsel/Solicitors:

Meredith Connell, Auckland (First and Second Respondents) Kensington Swan, Wellington (Third Respondent)

And to:

Applicant

O’NEILL v ATTORNEY-GENERAL OF NEW ZEALAND [2018] NZHC 1917 [31 July 2018]

Context

[1]                 In a judgment of 16 May 2018, I declined Mr O’Neill’s application to review a decision striking out proceedings.1 I awarded costs to the defendants on a 2B basis.2

Law

[2]                 Rule 14.15 of the High Court Rules 2016 (the Rules) provides that, if it appears to a court several defendants who defended a proceeding separately “could have joined in their defence” the court must not allow more than one set of costs, “unless it appears to the court that there is good reason to do so”.

Submissions

[3]                 The Attorney-General does not seek costs. The Department of Corrections seeks costs and disbursements of $7,275.13. It submits this is not a case where the Department and Serco New Zealand Ltd (Serco) could have joined in their defence because only one allegation in the pleadings was relevant to Serco, which did not make any identifiable decision in respect of Mr O’Neill. Alternatively, the Department submits the award should be allocated between it and Serco two-thirds to one-third.

[4]                 Serco agrees this is not a case where it and the Department could have responded with a single joint defence because Mr O’Neill made different and separate claims against them and sought different relief from each of them. Alternatively, Serco submits a 50:50 split would be appropriate. Serco claims the same costs and disbursements as does the Department (though it expresses the total differently because it includes GST on disbursements).

[5]                 It was not clear to me the defendants’ submissions had been served upon Mr O’Neill. I therefore took steps to ensure they were and gave him an opportunity to respond to them. Unfortunately, he abused that opportunity:

1      O’Neill v Attorney-General [2018] NZHC 1073.

2 At [34].

(a)He suggested I released a “second judgment” on 8 June 2018 which he characterised as “criminal and abusive” and stated most of it was “down right lies and an attack” on him. There was no second judgment. On that date, I issued a three-paragraph minute responding to a letter Mr O’Neill had sent me. The minute explained the communication was not appropriate and noted the judgment did not accept Mr O’Neill’s claims.

(b)He suggested, using terms of personal abuse, that I, another judge and Registry staff had somehow “interfered” with his appeal. On that basis, he submitted no costs can be awarded as my judgment “is not proven”. But, again using terms of personal abuse, he suggested this would make no difference to my decision and suggested I am a “bought judge”.

Decision

[6]                 I consider it was reasonable for the Department and Serco to conduct their cases separately. They were facing different claims, with different implications for each. Mr O’Neill’s application for review required responses from each of them. Their oral and written submissions were helpful. On the other hand, there was some overlap in the claims against them, the responses and the submissions.

[7]                 Accordingly, I award two thirds of the costs, and the full amount of disbursements (including GST, or not, as relevant to the party), sought by each of the Department of Corrections and Serco against Mr O’Neill on a 2B basis.

[8]                 Mr O’Neill’s personal abuse of me and another judge may constitute contempt of court for which a fine or even imprisonment could be imposed.3 I do not pursue that on this occasion. But I will revisit that if any further such abuse occurs.

Palmer J

3      See Solicitor-General of New Zealand v Van der Kaap HC Hamilton, M155/97, 30 May 1997 (where a litigant was imprisoned for six weeks and fined $1,000 for making an improper imputation to judges of the basest of motives).