Reekie v Attorney-General (sued on behalf of the Department of Corrections)

[2012] NZHC 2786

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-005757 [2012] NZHC 2786

BETWEEN  NICHOLAS REEKIE Plaintiff

ANDATTORNEY-GENERAL (SUED ON BEHALF OF THE DEPARTMENT OF CORRECTIONS)

First Defendant

ANDATTORNEY-GENERAL Second Defendant

ANDTHE DISTRICT COURT AT WAITAKERE

Third Defendant

Hearing:         (On the papers)

Counsel:         N Reekie in Person supported by R Woods as McKenzie Friend

J Foster for the Defendants

Judgment:      24 October 2012

[COSTS] JUDGMENT OF WYLIE

This judgment was delivered by Justice Wylie on 24 October 2012 at 11.00 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

N Reekie:  (via Arul Prakash:  [email protected]) J Foster:  [email protected]

REEKIE V ATTORNEY-GENERAL (SUED ON BEHALF OF THE DEPARTMENT OF CORRECTIONS) & ORS HC AK CIV 2008-404-005757 [24 October 2012]

[1]      I  refer  to  my  substantive  judgment  in  this  matter.[1]      In  that  judgment  I indicated my preliminary view that costs should lie where they fall, but indicated that an application could nonetheless be made by way of written memorandum.[2]

[1] Reekie v Attorney-General [2012] NZHC 1867.

[2] Ibid, at [293].

[2]      Mr Reekie has filed an application seeking costs.  He seeks costs in the sum of $5,762, made up as follows:

(a)       $3,000 for counsel’s costs in preparing the statement of claim;

(b)       Costs of an engineering inspection report, $1,822; (c) A contribution to telephone calls, $200;

(d)      Travel costs for his McKenzie friend, $620; and

(e)       Office sundries, $120.

[3]      Mr Reekie has provided a copy of the barrister’s invoice in relation to the

$3,000 claimed above, copies of various telephone account records, and receipts for office sundries.

[4]      The  defendants  oppose  the  costs  application.     They  submit  that  my preliminary view that costs should lie where they fall should prevail.  They also note that the third defendant, who was successful on all points, is not seeking costs against Mr Reekie.

Relevant law

[5]      The  general  principle  is  that  the  unsuccessful  party  should  pay  costs, although all matters of costs are at the discretion of the Court.[3]

[3] High Court Rules 2008, rr 14.1 and 14.2.

[6]      Costs may be reduced  under r 14.7(d) where a party claiming costs has succeeded overall, but has failed in relation to a cause of action or issue which significantly increased the cost to the opposing party.   They may also be reduced where the party claiming costs has contributed unnecessarily to the time or expense of the proceeding, or a step in it, by taking or pursuing an unnecessary step or an

argument that lacks merit.[4]

[4] Ibid, r 14.7(f)(ii).

[7]      A litigant in person is not normally entitled to costs,[5]  although they can be entitled to recover their disbursements.[6]

[5] Siemer v Heron [2011] NZSC 151 at [5].

[6] Transit New Zealand v Cook HC Greymouth CP6/93, 30 June 1994 at 4.

[8]      In the present case, Mr Reekie was only partially successful against the first and  second  defendants.    The  majority  of  his  claims  about  the  conditions  and treatment he says he received at Auckland Prison or at Auckland Central Remand Prison,  were  not  made  out,  and  in  total  only  two  of  his  ten  causes  of  action succeeded.

[9]      Further,  the  original  hearing  was  set  down  for  five  days.     However, Mr Reekie raised numerous additional grievances during the hearing which had not been pleaded.  As a consequence, an extra three hearing days were required.

[10]     In accordance with settled principle, I am not persuaded that it is appropriate to make a general costs order in favour of Mr Reekie.  There is nothing to depart from the general rule that a litigant in person is not normally entitled to costs. Further, his conduct in the litigation placed significant additional costs on the defendants.

[11]     I do, however, consider it appropriate to allow Mr Reekie a contribution towards the counsel’s fees incurred by him for the preparation and filing of his original statement of claim.  Mr Reekie has provided an invoice from the barrister retained.    It  is  addressed  to  Mr  Reekie,  and  relates  to  the  false  imprisonment

proceedings.

[12]     As I have noted, Mr Reekie’s claim did not succeed in its totality.  Precise quantification is impossible, but in my judgment, and looking at the matter overall, it is appropriate to allow Mr Reekie the sum of $1,000 on account of counsel’s fee for the preparation and filing of the original statement of claim.

[13]     I  am  not  prepared  to  allow  Mr  Reekie  to  recover  for  the  engineering inspection report.  In my reserved judgment, I questioned the utility of that evidence, given  that  eight  years  had  elapsed  between  the  incident  and  the  engineer’s inspection.   Further, I note that the invoice is addressed not to Mr Reekie, but to Ms Woods, Mr Reekie’s McKenzie friend.  There is nothing to suggest that the cost was incurred by Mr Reekie.

[14]     Mr Reekie also seeks $200 for telephone calls.   I have received a large number of invoices for telephone calls, but once again, there is no evidence to suggest that they have been paid by Mr Reekie.  A number of the invoices appear to relate to Ms Woods’ telephone account.  It is not clear who was responsible for the other invoices.  Ms Woods was not only Mr Reekie’s McKenzie friend, but she also has a personal relationship with him.   That was confirmed in the course of the hearing.  It would be inappropriate to allow any contribution to her telephone calls. They do not in any event total $200.

[15]     Despite an assertion by Mr Reekie to the contrary, I have not received any invoices relating to office sundries.  Those costs are not substantiated with receipts, and Mr Reekie’s claim in that regard fails.

[16]     Accordingly, I award costs in favour of Mr Reekie in the sum of $1,000.  The costs are to be met by the first defendant.

Wylie J