Reid v Attorney-General

[2023] NZHC 3441

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2022-485-000369

[2023] NZHC 3441

IN THE MATTER

of the New Zealand Bill of Rights Act 1990 and the Judicial Review Procedure Act 2016

BETWEEN

ALISTER REID

Applicant

AND

THE ATTORNEY-GENERAL (on behalf of The Department of Corrections) Respondent

on the papers

Appearances:

G E Minchin for the Applicant

F F Nizam and A W M Britton for the Respondent Applicant in person (via VMR)

Judgment:

29 November 2023

JUDGMENT OF TAHANA J

(Costs)

This judgment was delivered by me on 29 November 2023 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Exco Legal, Wellington

Luke Cunningham Clere, Wellington

REID v THE ATTORNEY-GENERAL (on behalf of The Department of Corrections) (Costs) [2023] NZHC 3441 [29 November 2023]

Costs application

[1]        I previously held that Mr Reid was successful on one ground of review and indicated my preliminary view that he is entitled to costs on a 2B basis, but that if this was not accepted, the parties could file costs memoranda.1

[2]        Mr Reid now seeks costs of $21,032.00 on a category 2B basis and disbursements. The Department of Corrections (Corrections) says costs should lie where they fall because Corrections was successful in defending three of the four grounds of review. I therefore need to determine whether costs should be awarded on a 2B basis or lie where they fall.

Relevant law

[3]        Costs are at the discretion of the Court.2 The general principles that apply when determining costs include that the party who fails should pay costs to the party who succeeds.3 The Court may reduce or refuse costs if, although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs or some other reason exists which justifies refusing or reducing costs.4

Should costs lie where they fall?

[4]        Corrections rely on Middeldorp v Avondale Jockey Club Inc.5 In that case the applicant was successful on one ground of review and failed on two other grounds of review. The Court of Appeal upheld the High Court’s decision to award costs to the respondent (reduced by 25 per cent) finding that it was open to the High Court to view the respondent as the successful party because the Avondale Jockey Club successfully resisted two grounds of review and the applicant had only been successful on one ground.

1      Reid v Attorney-General [2023] NZHC 2271 at [85] and [87].

2      High Court Rules 2016, r 14.1.

3      High Court Rules 2016, r 14.2(1)(a).

4      High Court Rules 2016, r 14.7(d) and (g).

5      Middeldorp v Avondale Jockey Club Inc v Avondale Jockey Club Inc [2021] NZCA 238.

[5]        Corrections notes that Mr Reid is legally aided, and Corrections does not seek costs.

[6]        Corrections further refers to cases where the Court has held that costs should lie where they fall because the respondent has been successful in defending grounds of review and the applicant has had partial success.6

[7]        Mr Reid pleaded four grounds of review but was only successful on one ground relating to Corrections’ non-compliance with its COVID-19 procedures. Corrections was successful in defending the other three grounds of review regarding breach of the Corrections Act 2004.

[8]        In these circumstances, I accept that Corrections’ costs in defending the causes of action regarding breach of the Corrections Act would have been significantly increased and accordingly costs should be refused under r 14.7(d).7

Result

[9]Costs should lie where they fall. I make no order as to costs.

Tahana J

6      Deep v Auckland Gold Line Co-operative Taxi Society Ltd [2019] NZHC 217 at [146]; and Deliu v Auckland District Court [2023] NZHC 164 at [155]–[158].

7      High Court Rules 2016.