Prescott v Thompson

[2020] NZHC 1858

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1972

[2020] NZHC 1858

BETWEEN

PETER RICHARD PRESCOTT

Applicant

AND

VIOLET GEORGINA THOMPSON

First respondent

AND

DISTRICT COURT AT AUCKLAND

Second respondent

Hearing:

On the papers

Appearances:

The applicant in person

R E Harrison QC for the first respondent Appearance excused for the second respondent

Judgment:

30 July 2020

JUDGMENT NO 3 OF PALMER J

(Costs)

This judgment was delivered by me on Thursday 30 July 2020 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Party/Counsel/Solicitors:

The applicant

R E Harrison QC, Auckland R S Wood, Auckland Crown Law, Wellington

PRESCOTT v THOMPSON NO 3 [2020] NZHC 1858 [30 July 2020]

What happened?

[1]    On 15 May 2020, I issued judgment in these proceedings.1 In summary, I stated:

[1]   Mr Peter Prescott applies for judicial review of decisions by the District Court not to adjourn his claim against his ex-partner, Ms Violet Thompson. But the District Court’s decisions were entirely reasonable and there is no evidence of bias or apparent bias by the judge. I dismiss the application for judicial review.

[2]       I gave leave for submissions to be filed on costs. Ms Thompson seeks increased costs or, alternatively, costs on the basis of categories three or two, and C or B, under pt 14 of the High Court Rules 2016 (the Rules). Mr Prescott opposes that.

Submissions

[3]Mr Harrison QC, for Ms Thompson, submits:

(a)Ms Thompson’s legal costs exceed $72,000, and categories three and C are more appropriate than categories two and B.

(b)Mr Prescott’s substantive claims were plainly hopeless and his approach was to take numerous technical, completely unnecessary and unmeritorious points and objections throughout the proceedings.

(c)Mr Prescott’s four interlocutory applications and most of his unnecessary memoranda relate to largely unsuccessful attempts to strike out Ms Thompsons affidavits. The applications were not the subject of conventional response but did require to be read and analysed and, in some instances, a response had to be prepared.

(d)Ms Thompson’s costs were substantially increased by the highly discursive, repetitive and often irrelevant content of Mr Prescott’s pleadings and the selective and incomplete documentary material he put before the Court.

1      Prescott v Thompson (No 2) [2020] NZHC 1004 (Substantive decision).

(e)Ms Thompson’s abuse of process defence in the substantive proceeding should be ruled upon and is relevant to costs.

(f)The need for robustness in dealing with unreasonably persistent serial litigants in person who attempt collateral attack on final judgments was affirmed recently in Faloon v Planning Tribunal at Wellington.2

(g)The fact the proceedings invoked the New Zealand Bill of Rights Act 1990 does not mean costs should not awarded.

(h)The claim does not include a claim for costs of Mr Prescott’s successful opposition to Ms Thompson’s application for security for costs.3

[4]       Mr Prescott’s submissions rehearse his substantive claims. He submits his case was a bona fide claim under the Bill of Rights Act that I found was arguable in waiving security for costs. He submits other courts have held costs do not apply for such claims and to decide otherwise would be to conflict with those binding precedents and prevent access to the protections under the Act.4 He submits Faloon is irrelevant. He submits costs should lie where they fall and he seeks a (misconceived) order “for $491.80 in damages and disbursements”.

Relevant law of costs

[5]       It is a fundamental principle that costs follow the event – meaning that a losing party pays to the winning party a contribution towards their legal costs.5     Under      r 14.6(3) of the Rules, the Court has the power to order increased costs if “the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step” by: taking or pursuing an unnecessary step or an argument that lacks merit; failing to admit facts or evidence or accept a legal argument or specified other reasons.

2      Faloon v Planning Tribunal at Wellington [2020] NZCA 170 at [1]-[3] and [17].

3      Prescott v Thompson [2019] NZHC 3028 (Security decision).

4      Dotcom v Twentieth Century Fox Film Corporation [2018] NZHC 299 at [5]; Prescott v Police [2020] NZHC 847 at [6]; Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186] and [224].

5      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

[6]Otherwise, under r 14.2(b), scale costs are determined on the basis of:

(a)the complexity of proceedings, assessed as falling within one of three categories of complexity: “straightforward” (category 1); “average” (category 2); or that “require counsel to have special skill and experience in the High Court” (category 3) under r 14.3; and

(b)the amount of time that would be reasonable for each step to take, objectively assessed as involving a “normal” amount of time (band B) or “comparatively” small or large amounts of time (bands A and C respectively) – rather like Goldilocks’ choices.6

Should costs be awarded and to whom?

[7]       Mr Prescott was entitled to bring the proceedings. I stated in my decision waiving security for costs that whether or not Mr Prescott’s case would succeed would depend on what evidence he could provide.7 Mr Prescott’s proceedings failed, by a fair margin, and costs should be awarded against him. His argument that he was pursuing a case under the Bill of Rights Act would mean that any litigant who brings proceedings invoking that Act, and virtually any judicial review proceedings, would automatically escape costs. Some cases invoking the Bill of Rights Act may be brought sufficiently in the public interest that their failure should not attract costs. This is not one of them.

[8]       I stated in the substantive judgment that “[t]he evidence before me indicates [Mr Prescott] takes technical points, his evidence is unreliable and he uses hyperbolic language to paint himself as a victim and others as oppressors.”8 These characteristics were on display in these proceedings. In particular:

(a)I held there was no evidence that the judge in the decision under challenge was biased or appeared to be biased, as he claimed.9 I had

6      TSB Bank Ltd v Dollimore [2016] NZHC 253.

7      Security decision, above n 3, at [8].

8      Substantive decision, above n 1, at [27].

9      Substantive decision, above n 1, at [26].

said the same in my security for costs decision but the situation did not improve and Mr Prescott persisted.10 The argument lacked any merit.  I consider Mr Prescott’s pursuit of the bias allegations, without evidence, contributed unnecessarily to the time of the proceeding.

(b)Mr Prescott filed and served three applications to strike out affidavits before the proceeding, which were dismissed in the judgment other than three aspects of one affidavit which I ruled inadmissible. After the hearing, Mr Prescott also applied to strike out evidence he said was given by Mr Harrison during the hearing, which I also dismissed. The three applications which failed lacked merit. I consider they also contributed unnecessarily to the time of the proceeding.

[9]       Overall, I consider the costs awarded against Mr Prescott should be increased by 25 per cent. But I do not consider the proceedings were more complex than normal or that the amount of time that would be reasonable for each step to take was either comparatively large or comparatively small. I award costs to Ms Thompson, against Mr Prescott, on a 2B basis uplifted by 25 per cent.

Palmer J

10     Security decision, above n 3, at [7].