P v District Court at Manukau
[2022] NZHC 2860
•3 November 2022
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF SECOND RESPONDENT PROHIBITED. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-882
[2022] NZHC 2860
BETWEEN P
Applicant
AND
THE DISTRICT COURT AT MANUKAU
First Respondent
AND
S
Second Respondent
AND
ATTORNEY-GENERAL
Third Respondent
Hearing: On the papers Appearances:
R E Harrison KC for Applicant
P L Borich KC for Second Respondent
J E L Carruthers and R E King for the Third RespondentJudgment:
3 November 2022
JUDGMENT OF PAUL DAVISON J
[Re: Costs]
This judgment was delivered by me on 3 November 2022 at 10am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Richard Wood, Auckland Rice Craig, Papakura
Crown Law Office, Wellington
P v THE DISTRICT COURT AT MANUKAU [2022] NZHC 2860 [3 November 2022]
Introduction
[1] Ms P (the applicant) applied for judicial review of Judge R McIlraith’s decision delivered in the District Court at Manukau on10 February 2021 in which he ordered a stay of the criminal prosecution and dismissed seven assault charges brought by the Crown against Mr S. The applicant was the complainant in respect of Mr S’s alleged offending. The District Court at Manukau, (as first respondent) abided the decision of the Court. Mr S (the second respondent) and the Attorney-General (the third respondent) both opposed the application.
[2] On 19 May 2022 I found that the applicant had standing to apply for judicial review of the Judge’s decision.1 I also found that the decision was amenable to review and that the applicant had established both of her grounds for relief.2 I declined to make an order setting aside the Judge’s decision,3 but granted declaratory relief in the following terms:4
(a)A declaration that the decision of District Court Judge McIlraith delivered on 26 January 2021 (with reasons for granting the application delivered on 10 February 2021) in which he made orders staying the criminal prosecution of the second respondent Mr S, and dismissed all of the charges he faced, was erroneous.
(b)A declaration that Judge McIlraith’s references to “false sexual allegations” having been made against the second respondent were also erroneous and made without cogent or sufficient foundation.
[3] I found that the applicant having succeeded is entitled to costs.5 I invited the applicant and the second and third respondents to file costs memoranda. They have done so. I will now determine the appropriate award.
The applicant’s position
[4] The applicant seeks costs calculated on a 2B basis totalling $19,478.50 together with disbursements of $1,820. She submits that having succeeded on her pleaded grounds of judicial review and having obtained declaratory relief. The only
1 P v The District Court at Manukau [2022] NZHC 1102 at [107]–[108].
2 At [108].
3 At [116].
4 At [119].
5 At [120].
part of her claim on which she did not succeed was as to the relief she sought, namely an order setting aside of the District Court judgment and an order for stay. The applicant nevertheless submits that this limited failure should not result in a reduction of the costs that would be otherwise appropriate and payable.
[5] The applicant submits further that the second respondent should bear the full burden of a costs order, jointly with the third respondent. She gives a number of reasons, namely: the second respondent set the entire train of events in motion by applying for a stay of prosecution on grounds that have been held to be without legal merit; the second respondent argued that the applicant had made false sexual allegations; and the second respondent opposed the application for judicial review on all fronts, including some that were misconceived, and unnecessarily prolonged and increased the costs of the proceedings.
[6] The applicant also notes that while the third respondent was not originally a party to the judicial review, the Attorney-General applied to be joined “on behalf of the Crown”, and thereafter participated fully. The applicant submits that an order for costs ought therefore to be awarded against the second and third respondents jointly and severally.
The second respondent’s position
[7] The second respondent submits that he should not be subject to any award of costs. He says that he has acted properly throughout the entire series of events. He pleaded not guilty; defended the first trial, which was aborted on a Police application due to the applicant’s failure to tell the Police about an indecent assault allegation; defended the second trial, which was aborted on a Crown application due to a Police failure to record/disclose parts of the applicant’s account when she was interviewed again; was discharged on the indecent assault charge when the Crown offered no evidence; and then applied for a stay of the prosecution. He says that he was entitled to take all of these steps.
[8] Furthermore, although he applied for a stay, the second respondent says that he had no control over whether it was granted or what the Judge would say about the
applicant or her credibility. He also had no say in the Crown’s decision not to appeal. He has been, and continues to be, a ‘passenger’ in all of this.
[9] The second respondent submits that, although unsuccessful, the stay application was not “without legal merit” as the applicant has suggested. He notes that the stay application was advanced on multiple grounds (including due to the lengthy delay to trial) which were at least arguable. Moreover, the applicant failed in her effort to have the matter brought back for a third trial. Had only that part of the application been resisted, the second respondent submits that the time/cost/argument would have been no different.
[10] The second respondent submits that in general, defendants in criminal matters should not be discouraged from: defending charges; making arguable stay applications; and resisting efforts to have dismissed charges reinstated, for fear of costs awards being made against them. He submits that defendants in criminal cases are not before the courts by choice, and they are entitled to defend them strenuously.
[11] The second respondent also submits that the sexual allegations made against him by the applicant “have proven to be false”. The Crown took the view that some of the applicant’s allegations of sexual offending against her (including an allegation of rape) were not capable of sustaining charges. It also offered no evidence on the indecent assault charge which was subsequently dismissed. The second respondent submits that to that extent, the indecent assault charge can be characterised as a “false allegation”.
[12] In these circumstances, the second respondent submits that no costs award should be made against him.
The third respondent’s position
[13] The third respondent submits that costs against the Attorney-General should be reduced by half for three reasons. First, because the applicant’s proceeding was directed at obtaining both a declaration and an order quashing the stay of proceedings. She succeeded only in obtaining a declaration. The third respondent submits that its costs were significantly increased due to the applicant’s failed attempt to have the
Judge’s stay decision quashed and the charges against the second respondent reinstated.
[14] Secondly, the application plainly involved matters of public interest and it was appropriate for the Attorney-General to take on the role of contravener. This was particularly so given that the decision maker — the District Court —abided the Court’s decision. The third respondent submits that it acted reasonably in doing so, as it did not seek to defend the merits of the impugned decision and made appropriate concessions.6
[15] Thirdly, the third respondent submits that costs should be reduced because it is undesirable to expose the parties to a criminal prosecution to costs liability as a result of collateral civil proceedings taken by a third party. The third respondent submits that it would be anomalous for it and the second respondent to face full civil costs liability in proceedings initiated by neither of them and concerning a decision made by neither of them.
The applicant’s reply submissions
[16]The applicant makes a number of points in reply.
[17] With respect to the second respondent: that none of his submissions are sufficient to rebut the presumption that the party who fails with respect to a proceeding should pay costs to the party that succeeds; it was plainly correct to say that the stay application was without legal merit; the costs award relates to the application for judicial review (which the second respondent chose to oppose), not the stay application outcome, so would not deter others from making stay applications in the future; it is not correct to characterise the applicant as having succeeded in only half of her claim, with the applicant noting that the question of relief occupied only a small portion of both written and oral argument; and it is entirely unacceptable for the second respondent to continue to assert that the sexual allegations “have proven to be false” in the face of this Court’s judgment.
6 The Attorney-General accepted that there had been no basis for the Judge to have found the applicant’s allegations of sexual offending to be false.
[18] As to the third respondent’s position, the applicant submits that it is plainly wrong to suggest that she “only succeeded in part” or that the third respondent’s costs were “significantly increased” by reason of her attempt to have the stay decision quashed and the charges against the second respondent reinstated. Nor is it a sufficient reason to reduce costs because the third respondent acted in the public interest and reasonably in circumstances where the third respondent chose to intervene in the proceedings. The applicant submits that this was not a case where, with the first respondent abiding, there was no existing party available and ready to oppose the judicial review application.
[19] Further, the applicant notes that a significant feature of the third respondent’s submissions involved defending the “less than satisfactory” Crown Law decision not to appeal the Judge’s decision. The applicant also submits the fact that costs are rarely awarded to parties in criminal proceedings is not a reason to deny costs in the circumstances of this case. Given the practical unavailability of an award of costs against the District Court, for legal error on the part of that Court, the applicant submits that it is entirely appropriate for the Crown to face a costs award in circumstances where it joined and actively defended the proceedings.
Discussion
Is the applicant entitled to an award of costs?
[20] The starting point is that costs follow the event. The party who fails with respect to a proceeding should pay costs to the party who succeeds.7 In my judgment on the substantive application, I found that the applicant having succeeded, is entitled to costs.8 While I did not make the order sought by the applicant quashing the Judge’s decision, the applicant was nevertheless the successful party.9 She succeeded in establishing that she had personal standing to apply for judicial review of the Judge’s decision, in establishing that the decision was amenable to review, in establishing both
7 High Court Rules 2016, r 14.2(1)(a).
8 P v The District Court at Manukau, above n 1, at [120].
9 See Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379 at [26]; Water Guard NZ Ltd v Midgen Enterprises Ltd [2017] NZCA 36 at [13]; and Middeldorp v Avondale Jockey Club Inc [2021] NZCA 238 at [22].
her pleaded grounds for relief and in obtaining declaratory relief.10 Accordingly she is entitled to an award of costs.
Against whom?
[21] The applicant contends that the second and third respondents should be jointly and severally liable for costs. However, I consider that the second respondent should not be subject to an award of costs. My reasons may be stated briefly.
[22] The applicant submits that the second respondent “set the entire train of events” in motion by applying for a stay of the prosecution on grounds that were “without legal merit”. But I do not think that is an accurate characterisation of his role. As a defendant in criminal proceedings, he was not before the courts by choice. He was entitled to plead not guilty to the charges he faced. The first trial was aborted following a prosecution application. The second trial was aborted following a Crown application. Neither was a result of any failure or conduct on his part. He was entitled thereafter to apply for a stay of the prosecution against him. He was not responsible for the reasons given by the Judge in his decision granting a stay, nor was he responsible for the Crown’s decision not to appeal the Judge’s ruling.
[23] I also do not think that the first respondent’s application for a stay can be correctly characterised as being entirely “without legal merit”. Two jury trials had been aborted at the request of the prosecution and nearly three years would have passed by the time that a third jury trial was scheduled to commence. It was at least arguable that there had been undue delay to trial. While the Judge’s decision to grant the stay application was ultimately made in error,11 the second respondent was entitled to apply for a stay of the prosecution and that application was not in my view entirely without merit such as it had no prospect of success.12
[24] I also agree with the second respondent’s submission that he was entitled to “strenuously” oppose the application for judicial review. A defendant in criminal
10 P v The District Court at Manukau, above n 1, at [108] and [119].
11 At [80]–[90].
12 It was, however, without merit to describe the applicant’s sexual allegations as false. The Judge was likewise incorrect when he appeared to “give his judicial imprimatur to the proposition that her allegations were false”.
proceedings is entitled to the presumption of innocence and to defend charges brought against them by the state.13 Just as the second respondent was entitled to apply for a stay of the prosecution against him, he was also entitled to resist efforts to have the charges against him reinstated by way of judicial review. It is also relevant to note that at the time when the second respondent initially opposed the application for judicial review, the first respondent was adopting the position of abiding the decision and the third respondent was yet to be joined to the proceedings as a respondent. A defendant facing criminal charges in this position (described at [22] above) principally because of a judge’s error should not be discouraged from opposing such an application due to fear of a costs award being made against them.
[25] For these reasons, I consider that the costs award should only be made against the third respondent.
For how much?
[26] The remaining question is how much the applicant is entitled to recover by way of a costs award against the third respondent. The applicant seeks costs calculated on a 2B basis totalling $19,478.50 together with disbursements of $1,820. The third respondent accepts this calculation of scale costs. It submits however that there should be a 50 per cent reduction in costs to account for the applicant’s limited success, the fact that the proceedings concerned a matter of public interest and the third respondent acted reasonably, and because a full award is otherwise undesirable in the circumstances of the case. I will address each issue in turn.
[27] First, although the applicant is the successful party, that success is qualified to the extent that she was unsuccessful in setting aside the Judge’s decision. A court may reduce the costs otherwise payable if the successful party has failed in relation to an issue which significantly increased the costs of the party opposing costs.14 The third respondent submits that while its position on standing may not have materially changed had only declaratory relief been sought, the proceedings would nevertheless
13 New Zealand Bill of Rights Act 1990, s 25(c) and (e).
14 High Court Rules, r 14.7(d). See also Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZCA 684 at [25].
have “taken a different shape”. It says its costs were significantly increased as a result of the failed attempt to set aside the Judge’s decision.
[28] I do not consider this limited failure is such as to materially reduce the costs to which the applicant is otherwise entitled in the circumstances of this case. A “realistic appraisal” of the end result shows the applicant to have been successful in most respects.15 As noted above, she succeeded in establishing personal standing, that the decision was amenable to review, in establishing both of her grounds for relief and in obtaining declaratory relief.16 The question of what relief the applicant would be entitled to obtain in the event of success occupied only a small portion of the written and oral argument. I do not accept that this prayer for relief changed the shape of the proceedings to such an extent that it significantly increased the third respondent’s costs.17 It does not warrant a reduction of the costs otherwise payable.
[29] Secondly, the third respondent seeks a reduction in costs on the basis that this application involved matters of public interest and because it acted reasonably throughout the proceeding.18 I agree that it was entirely appropriate for the Attorney- General to take on the role of contravener. That is particularly so in circumstances where the decision maker — the District Court — abided this Court’s decision. I also accept that the third respondent acted reasonably, including by making appropriate concessions. The Court derived considerable assistance from the third respondent’s participation in the proceeding. I consider that a reduction of 20 per cent of the costs otherwise payable is warranted to reflect these factors.
[30] Thirdly, a reduction is sought on the basis that it is undesirable to expose the parties to a criminal prosecution to costs liability as a result of collateral civil proceedings taken by a third party. The third respondent submits that it would be
15 Bathurst Resources Ltd v L&M Coal Holdings Ltd, above n 14, at [25].
16 P v The District Court at Manukau, above n 1, at [108] and [119].
17 For example, the third respondent submits that the presence of this prayer for relief was particularly relevant to it making the submission that recognising a right to judicial review would risk creating a parallel appeal pathway that would undermine the regime established by the Criminal Procedure Act 2011. But in my view such a submission, relevant to the issue of standing, would likely have been made even if the applicant only sought declaratory relief.
18 High Court Rules, r 14.7(e).
“anomalous” for the parties to face full civil costs liability in proceedings initiated by neither of them and concerning a decision made by neither of them.
[31] I do not agree. While I do not consider it appropriate to expose the defendant in criminal proceedings to costs liability as a consequence of collateral civil proceedings taken by a third party, I do not think that protection should extend to the Crown, particularly in circumstances where it has chosen (albeit appropriately) to participate by way of outright opposition to the claim and relief sought, where relief is granted on the basis that there has been a legal error on behalf of the District Court, and where an award of costs against that Court is practically unavailable. The cost of vindicating the applicant’s reputation would otherwise be visited entirely on the applicant herself. No reduction in costs is warranted on the basis.
[32]I will therefore reduce the amount of costs otherwise payable by 20 per cent.
Result
[33] I award costs to the applicant on a 2B basis against the third respondent totalling $15,582.80 ($19,478.50 reduced by 20 per cent) together with disbursements of $1,820.
Paul Davison J
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