Prescott v Police - [2020] NZHC 2424

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002164

[2020] NZHC 2424

BETWEEN
PETER RICHARD PRESCOTT

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: (On the papers)

Counsel:

Applicant in Person

Hayley McKee and Alexandra Tumahai for the Respondent

Judgment:

17 September 2020

JUDGMENT OF MOORE J

[Application to reserve costs award]

This judgment was delivered by me on 17 September 2020 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

PRESCOTT v NEW ZEALAND POLICE [2020] NZHC 2424 [17 September 2020]

Introduction

[1] Mr Prescott applies to reverse a costs order I made against him in May 2017 (“the May 2017 order”) pursuant to r 14.8(2) of the High Court Rules 2016, and to have that amount repaid to him pursuant to r 20.20.

Procedural background

[2] Mr Prescott was arrested in 2011. In 2016, he issued civil proceedings against the Police alleging they had breached his rights under the New Zealand Bill of Rights Act 1990. On 10 August 2016, Judge P A Cunningham delivered judgment against Mr Prescott.1 She awarded costs in favour of the Police on a 2B basis totalling
$27,111.02 (“the 2016 order”).2 Mr Prescott then filed an application for judicial review and an appeal of Judge Cunningham’s substantive decision. Woodhouse J directed these to be heard together.

[3] Mr Prescott applied for a stay of the enforcement of the 2016 order pending the determination of those matters. I declined his application on 3 April 2017.3 I awarded costs on the stay application on a 2B basis to the Police, totalling $5,686.50 plus disbursements of $132.51. Mr Prescott filed an application for leave to appeal that decision but failed to pay security for costs on the appeal and it was thus deemed abandoned.

[4] On 2 June 2017, the Police issued a bankruptcy notice against Mr Prescott on the basis of non-payment of the May 2017 order. On 25 October 2017, Associate Judge Bell dismissed Mr Prescott’s application to set aside the bankruptcy notice.4 On 15 November 2017, Associate Judge Bell granted the Police costs of $9,923.50 on that application. Mr Prescott then applied to the Court of Appeal for leave to appeal Associate Judge Bell’s substantive judgment out of time. The Registrar of the Court of Appeal declined to waive security for costs. Mr Prescott sought a review of the rRgistrar’s decision, but it was upheld by Brown J on 16 February 2018.5

1      Prescott v Police [2016] NZDC 14357.
2      Prescott v Police [2016] NZDC 20562.
3      Prescott v Police [2017] NZHC 620.
4      Prescott v Police [2017] NZHC 2701.
5      Prescott v Police [2018] NZCA 16.

[5] On 22 January 2018, the Police applied for an order adjudicating Mr Prescott bankrupt for the amount owing under the 2016 order and the May and November 2017 costs orders. As a result, he paid $16,079.39 to the Police in payments of the May and November…

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.

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Details

Case: [2020] NZHC 2424
Decision Date: 17 September 2020

CaseChat Overview and Summary

In Prescott v Police, Mr. Prescott, the applicant, sought to reverse a costs order made against him in May 2017, arguing that he should be restored to the position he would have occupied if his outcome had been adopted from the beginning. The case was heard in the High Court of New Zealand at the Auckland Registry, presided over by Justice Moore. The primary legal issues revolved around whether the applicant could reverse a costs order made on an interlocutory application and whether he was entitled to a refund of the amounts paid towards the costs orders.

The court considered the principles governing interlocutory applications and the specific provisions of Rule 14.8(2) of the High Court Rules 2016, which allows for the reversal of a costs order if the court is satisfied that the original order should not have been made. The court found that the merits of the interlocutory application and the substantive proceeding were different matters, and the issues in the interlocutory application were discrete from the larger questions before Gault J about the District Court orders. The Police were deemed the successful party and, thus, entitled to costs. The court was not satisfied that the costs order was inappropriate and declined to revisit the order.

The court dismissed the application, noting that the rationale behind Rule 14.8 was that the merits of particular applications and those of the substantive proceeding are different matters. The issues in the interlocutory application before the court were distinct from the larger questions before Gault J about the District Court orders. The Police were the successful party and, therefore, entitled to costs. The court held that it was not satisfied the costs order was inappropriate and declined to revisit the order.

The final orders were that the application to reverse the costs order was dismissed, and Mr. Prescott was not entitled to a refund of the amounts paid towards the costs orders. The matter was referred to Meredith Connell, a solicitor from Auckland, and a copy of the judgment was sent to the applicant.

Orders