Prescott v Police

[2020] NZHC 847

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2164

[2020] NZHC 847

BETWEEN

PETER RICHARD PRESCOTT

Appellant

AND

NEW ZEALAND POLICE

First Respondent

DISTRICT COURT AT AUCKLAND

Second Respondent

CIV-2016-404-2259

IN THE MATTER

of the unlawful arrest and violation of the Applicant’s rights

BETWEEN

PETER RICHARD PRESCOTT

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	On the papers
Appearances:	Appellant/Applicant in person in both proceedings A F Todd for the Respondent(s) in both proceedings
Judgment:	30 April 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 30 April 2020 at 11:30 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

PRESCOTT v NEW ZEALAND POLICE [2020] NZHC 847 [30 April 2020]

[1]    Following my judgment dated 18 December 2019 dismissing Mr Prescott’s appeal and application for judicial review,1 the parties have filed memoranda as to costs. The parties are agreed that the costs of the High Court proceedings (appeal and judicial review) are to lie where they fall. However, the parties disagree as to the costs awarded in the District Court.

[2]    The respondent seeks confirmation that the costs order made in the District Court stands, in the interests of finality. The District Court awarded the respondent costs and disbursements on a 2B basis in the sum of $27,111.02. The respondent seeks my confirmation given familiarity with the matter.

[3]    Mr Prescott submits that costs in the District Court should also lie where they fall on the basis that costs are seldom awarded in genuine Bill of Rights cases.

Discussion

[4]    Ordinarily, an issue as to costs in the Court under appeal would not arise where the appeal has been dismissed. While costs in the Court under appeal are often best left to that Court to revisit in light of the appellate Court’s judgment, I accept in this case the parties seek my determination on the basis that the same issue arises, namely costs in a case involving the application of NZBORA.

[5]In my judgment of 18 December 2019, I said in relation to costs:

[113] 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.2 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.3 I record my view that the lawfulness of the arrest issue did have merit.

1      Prescott v Police [2019] NZHC 3376.

2      Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186] and [224].

3      At [186]; and Dotcom v Twentieth Century Fox Film Corporation [2018] NZHC 299 at [5].

[6]    I accept that in the unusual circumstances of this case my observations as to costs apply equally to costs in the District Court.   Therefore, despite the fact that   Mr Prescott’s civil claim was dismissed, and his appeal and application for judicial review were dismissed, I consider he was pursuing a bona fide NZBORA claim, the issue of the lawfulness of his arrest did have merit and the conduct of his case did not warrant an adverse costs order. The arrest was lawful but on grounds not raised in the District Court.

[7]    The District Court Judge may well have been justified in awarding costs in respect of other parts of Mr Prescott’s claim on the basis that they lacked merit but, as in this Court, I expect they were secondary and took up relatively little time and I am not in a position to split them out.   As the respondent sought finality in this Court,    I consider it appropriate to order that costs in the District Court also lie where they fall rather than refer this secondary issue back to the District Court Judge.

Gault J

Parties / Solicitors:

The Applicant

Ms A F Todd, Crown Law, Wellington