Reekie v Attorney-General

[2019] NZHC 2578

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1196

[2019] NZHC 2578

BETWEEN

NICHOLAS PAUL ALFRED REEKIE

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing:

On the papers

Appearances:

Plaintiff in person

S K Shaw and S M Kinsler for Defendant

Judgment:

10 October 2019

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 10 October 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

REEKIE v ATTORNEY-GENERAL [2019] NZHC 2578 [10 October 2019]

[1]    On 19 July 2019 I issued a judgment dismissing claims by Mr Reekie in negligence and for alleged breaches of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA).1 Mr Reekie has been unable to reach agreement with the defendant regarding costs. I am therefore required to determine that issue on the basis of the memoranda both parties have filed.

Mr Reekie’s claims

[2]    Mr Reekie is serving a sentence of preventive detention. On or about 30 June 2011 the prison authorities decided he would be transferred from Auckland Prison to the Northern Region Correctional Facility (NRCF) in Northland. The transfer took place on 5 July 2011. Mr Reekie alleged that, in transferring him to NRCF, the prison authorities breached several of his NZBORA rights and also breached a duty of care that they owed to him at common law.

[3]    I held that the decision to transfer to NRCF Mr Reekie was made lawfully and for genuine reasons,2 and that the transfer was implemented in a lawful manner.3 Furthermore, I was satisfied that the transfer and any failure by the Prison Inspectorate to properly investigate Mr Reekie’s complaints did not breach Mr Reekie’s NZBORA rights.4 I also held that the prison authorities did not owe any duty of care at common law to Mr Reekie.5 Mr Reekie therefore failed on the facts in relation to his NZBORA claims and in law on the claim brought in negligence.

The arguments on costs

[4]    Counsel for the defendant seeks an award of costs on a Category 2B basis together with disbursements as fixed by the Registrar. The defendant seeks costs on the basis that it was the successful party in the proceeding and in accordance with the principle that costs ordinarily follow the event. It accepts that the proceeding raised issues of complexity compatible with a Category 2 proceeding and that Band B is the appropriate costing band for each step in the process. The defendant calculates that

1      Reekie v Attorney-General [2019] NZHC 1679.

2      At [26] and [43]-[46].

3      At [47]-[61].

4      At [62]-[80].

5      At [81]-[89].

costs on this basis would amount to $42,593 together with disbursements of $220. Counsel for the defendant confirms that the costs sought do not exceed the defendant’s actual costs incurred.

[5]    Mr Reekie raises a large number of arguments in opposition to the claim for costs. He contends the defendant acted inappropriately and in a manner calculated to prejudice his rights throughout the proceeding. He says his claim was well founded, principled and that it raised valid complaints that had already received favourable consideration from the Ombudsman. He also contends the witnesses who gave evidence at the trial conceded that many of the complaints he has made to the prison authorities have had merit. He says that costs, if awarded, would be “grotesque, demonstrably unjust and manifestly unreasonable in all the circumstances”.

Decision

[6]    It is not necessary to deal with the issues raised by Mr Reekie because in large part they are an attempt to re-litigate issues he raised unsuccessfully during the trial. Instead, I propose to determine the issue of costs in the manner prescribed by the High Court Rules 2016. These require that, so far as possible, the determination of costs should be both predictable and expeditious.6

[7]    All matters as to costs are at the discretion of the Court.7 In exercising the discretion, however, the Court is required to have regard to the  principles set out in  r 14.2. To the forefront of these is the principle that the party who fails with respect to a proceeding should pay costs to the successful party.8

[8]    In the present case there can be no doubt that the defendant was the successful party because it successfully defended all of Mr Reekie’s  claims.  I do not accept  Mr Reekie’s submission that the manner in which the defendant conducted its defence should reflect in any way on the issue of costs. Furthermore, all of the steps for which the defendant seeks costs were steps taken in the proceeding. I therefore see no principled basis for any reduction of the costs to be awarded to the defendant.

6      High Court Rules 2016, r 14.2(1)(g).

7 R 14.1(1).

8 R 14.2(1)(a).

[9]    The defendant is accordingly awarded costs as sought on a category 2 Band B for all steps taken in the proceeding.

Lang J

Solicitors:

Meredith Connell, Wellington

K Gibbons, Department of Corrections, Auckland Prison Copy to:

Plaintiff