Prescott v Thompson

[2019] NZHC 3028

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1972

[2019] NZHC 3028

BETWEEN

PETER RICHARD PRESCOTT

Applicant

AND

VIOLET GEORGINA THOMPSON

First respondent

AND

DISTRICT COURT AT AUCKLAND

Second respondent

Hearing:

31 October 2019, written submissions 12 and 15 November 2019

Appearances:

The applicant in person

W D Woodd for the first respondent
No appearance for the second respondent

Judgment:

20 November 2019

JUDGMENT OF PALMER J

The judgment was delivered by me on 20 November 2019 at 2.00pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Party/Solicitors:

The Applicant in person Boyle Mathieson, Auckland

PRESCOTT v THOMPSON [2019] NZHC 3028 [20 November 2019]

Context

[1]                  Mr Peter Prescott challenges, by way of judicial review, a District Court decision declining his contractual claim against his former de facto partner.1 He submits the Court was biased against him and did not give due consideration to his claim that he was medically unfit to attend court.

[2]                  Mr Prescott had previously appealed the decision to the High Court. However, he was ordered to pay security for costs and did not, so was deemed to have abandoned the appeal under s 126(3) of the District Court Act 2016 (confirmed by r 20.13(5) of the High Court Rules 2016).

[3]                  In a minute of 1 November 2019, after the first call of this proceeding in the Judicial Review List, I made timetabling orders for the proceeding. But Ms Thompson seeks security for costs. I granted leave to the parties to file submissions on that.

Submissions

[4]                  Mr Woodd, for Ms Thompson, submits there is reason to believe Mr Prescott will be unable to pay Ms Thompson’s costs if Mr Prescott is unsuccessful and it is just in all the circumstances that he provide security. He points to Mr Prescott’s advice at the call of this matter that he would be unable to pay the costs in a lump-sum, he failed to pay costs for his appeal and he has failed fully to pay another costs award in favour of the Police. He also submits Mr Prescott’s proceeding lacks any discernible merit.

[5]                  Mr Prescott submits he should not have to pay security for costs in one lump sum but is able to make regular payments of costs if he loses the case. He submits he is a genuine plaintiff with an excellent chance of success based on his right to a fair hearing. He submits the respondent is unreasonably using security for costs for the improper purpose of halting a legitimate judicial review and would deny him access to justice. He also submits the rule prohibiting self-represented litigants from recovering costs is wrong, unjust, promotes discrimination and removes any incentive for represented parties to settle.

1      Prescott v Thompson [2019] NZDC 4646.

Should Mr Prescott have to pay security for costs?

[6]                  Rule 5.45 of the High Court Rules 2016 empowers me to order the giving of security for costs if I consider it “just in all the circumstances”. Here, this requires me to balance the interests of the plaintiff in pursuing justice with the interests of the defendant in being able to claim costs for being exposed to an unmeritorious claim. An important feature of the context is the right to justice guaranteed by s 27 of the New Zealand Bill of Rights Act 1990. That includes the right to the observance of the principles of natural justice and the right to apply, in accordance with law, for judicial review.

[7]                  Mr Prescott’s key claim is that, as a self-represented litigant, he was forced to go ahead with a court hearing while suffering from a debilitating illness, in serious pain and discomfort and “drugged up to the eye balls on pain killers and suffering from severe sleep deprivation”. I put aside his claim of actual bias on the part of the District Court judge as I can see no evidential foundation supporting that.

[8]                  I decline the application that Mr Prescott pay security for costs. I do not say Mr Prescott’s case will necessarily succeed. That will depend on what evidence he can provide. But his case about access to justice is arguable and, given the importance of that right, I consider he should be allowed to have his day in court.

[9]                  Because the date of this decision is later than I was expecting, I vary the timetable in Minute No 1, of 1 November 2019, to require Mr Prescott to file and serve his affidavits by 4 pm Friday 29 November 2019. Otherwise, the timetabling steps and hearing set down in that minute stand.

Palmer J