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 2017 costs orders. Associate Judge Smith made a halt order for the application for adjudication, pending the hearing and determination of Mr Prescott's appeal and judicial review application.6

[6]        On 18 December 2019, Gault J dismissed the appeal and judicial review application on the grounds the arrest was lawful.7 He stated:8

“Costs ordinarily follow the result. The respondents have succeeded but, at least in relation to the arrest appeal, on grounds not raised in the District Court. Also, the Courts have acknowledged that it may not always be appropriate to allow costs to follow the event in cases involving the application of NZBORA because the normal costs rules may discourage litigants from bringing NZBORA claims. It is unlikely that costs will be awarded against an unsuccessful plaintiff if a NZBORA claim is bona fide and is found to have had some merit even though unsuccessful, especially if the plaintiff sought no more than a vindication of rights, and the conduct of the case did not warrant an adverse costs order. I record my view that the lawfulness of the arrest issue did have merit.”

[7]        The parties agreed the costs of the High Court proceedings (appeal and judicial review) were to lie where they fell, and Gault J later also ordered that costs from the 2016 order should lie where they fell.9

[8]        On 5 May 2020, the Police sought to discontinue their application for adjudication in the bankruptcy proceeding. Mr Prescott opposed the discontinuance and submitted he was entitled to a refund of the amounts he had paid in respect of the May and November 2017 costs orders. Associate Judge Bell found there was no basis for a refund and gave leave for the Police to withdraw their application.10

[9]Mr Prescott now applies to reverse my May 2017 costs order.

6      Police v Prescott [2018] NZHC 618.

7      Prescott v Police [2019] NZHC 3376.

8      At [113] (citations omitted).

9      Prescott v Police [2020] NZHC 847.

10     Prescott v Police [2020] NZHC 1727.

Submissions

Mr Prescott

[10]      Mr Prescott submits that as a successful appellant, he should be restored to the position he would have occupied if his outcome had been adopted from the beginning.

Police

[11]      Ms McKee, for the Police, submits that the merits of the stay application before me were different to the merits on the substantive claim. She submits that the principles applying to applications for a stay specifically recognise that the judgment subject to the stay might ultimately be overturned and the successful party is generally allowed to have the benefit of those costs pending appeal.11 Mr Prescott had applied for a stay in circumstances where the established law went against him; it is appropriate that he bears the costs consequences of that decision. Otherwise, appellants would not be disincentivised from making unmeritorious interlocutory applications pending appeal.

[12]      She also notes that r 20.20 is not engaged, as it only applies where a party has made a payment pursuant to a judgment or order that is overturned on appeal.

Principles

[13]Rule 14.8 of the High Court Rules 2016 relevantly provides:

“14.8   Costs on interlocutory applications

(1)Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—

(a)must be fixed in accordance with these rules when the application is determined; and

(b)become payable when they are fixed.

(2)Despite subclause (1), the court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.

…”

11     See Walker v Castlereagh Properties Ltd [2015] NZHC 907, [2015] NZAR 944 at [43]-[45].

[14]      Most cases invoking r 14.8(2) involve a party seeking to reverse an adverse costs order after successfully appealing the interlocutory decision.12 The rationale behind r 14.8 is that the merits of particular applications and those of the substantive proceeding are different matters.13 The issues in the interlocutory application before me were discrete from the larger questions before Gault J about the District Court orders.

[15]      The Police were the successful party and therefore entitled to costs. I am not satisfied the costs order was inappropriate. I will not revisit the order.

Result

[16]The application is dismissed.

Moore J

Solicitors:

Meredith Connell, Auckland

Copy to:
The Applicant

12     Palmerston North City Council v Hardiway Enterprises Ltd (struck off) [2018] NZHC 3005 at [6].

13     Chapman v Badon Limited [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].