Roe v University of Otago

[2022] NZHC 292

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-0115

[2022] NZHC 292

UNDER

Judicial Review Procedure Act 2016

IN THE MATTER

of an application for Judicial Review

BETWEEN

KELLY ALEXANDRA ROE

Applicant

AND

UNIVERSITY OF OTAGO

Respondent

Appearances:	Ms K A Rowe (Applicant) in person R J M Sim for Respondent
Judgment:	25 February 2022
(Determined on the papers)

JUDGMENT AS TO COSTS OF GENDALL J

This judgment was delivered by me on 25 February 2022 at 2.30 pm Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date

ROE v UNIVERSITY OF OTAGO [2022] NZHC 292 [25 February 2022]

Introduction

[1]                 In a judgment I issued in this proceeding on 3 November 2021, I dismissed an application by Kelly Alexandra Roe (the applicant) for judicial review which she had brought against the respondent, the University of Otago (the University).1

[2]                 The applicant, Ms Roe, in her judicial review application had challenged the University’s decisions to decline her applications for enrolment at the University in its Bachelor of Medicine and Bachelor of Surgery (MBChB programme) (the programme). In my 3 November 2021 substantive decision, I found the University’s decisions were both lawful and reasonable and I dismissed Ms Roe’s judicial review application.

[3]                 In doing so, however, I reserved costs. At para [34] of that judgment I encouraged the parties to agree costs between themselves, but noted if they were unable to agree memoranda on costs were to be filed and I would make a determination on the papers. In doing so, however, I did note that costs might be sought by the University as the successful party here, given that costs would ordinarily follow the event.

[4]                 It seems unfortunately that attempts between the parties to reach agreement as to costs have failed. The University now seeks a determination as to costs.

[5]                 On 30 November 2021 counsel for the University, Mr Sim, filed his memorandum seeking costs on behalf of the University. On 21 January 2021, Ms Roe the applicant, filed her memorandum on costs in response. At this point I leave on one side any issues over delay on the part of Ms Roe in filing her costs memorandum, given that it was over one month late in terms of the directions I gave at para [34] of my substantive judgment.

1      Roe v University of Otago [2021] NZHC 2952.

[6]                 The University, as the party who succeeded in opposing Ms Roe’s initial judicial review application, does seek an award of costs and disbursements here totalling $27,776, as set out in some detail in a schedule to counsel’s 30 November 2021 submissions. The costs claimed, calculated on a standard category 2B scale basis, amount to $27,246. Disbursements totalling $530 representing Ministry of Justice Court filing fees make up the balance of the claim. In his submissions, Mr Sim for the University, indicates that an award of costs at this level is generally in accordance with the usual expectation that costs awards will equate to two-thirds of actual solicitor and client costs in accordance with r 14.2(1)(d) of the High Court Rules 2016.

[7]                 As to Ms Roe’s position on costs, in her memorandum she specifically requests that costs should be left to lie where they fall, and therefore no orders as to costs should be made in favour of either party in this case. And, although Ms Roe in her memorandum expressly disavows liability for the University’s costs here and, as I understand it, has indicated an intention to appeal my substantive 3 November 2021 judgment, I accept submissions advanced on behalf of the University that it remains appropriate for costs in the High Court to be fixed at this time. As will appear later I accept too that it is also appropriate for costs to be awarded to the University on this substantive proceeding as the successful party here.

Submissions

[8]                 As I note, the University seeks a costs and disbursements order against Ms Roe here totalling $27,776. The costs component here is calculated on a category 2B scale basis which counsel Mr Sim suggests is appropriate. I agree. Category 2B is appropriate in my view on the basis that the proceedings were of average complexity (thereby justifying category 2) and each of the steps for which costs are claimed took at least a normal amount of time (thereby justifying band B). As to the 2B costs category to be allocated here, this is effectively unchallenged by Ms Roe at this point, and as I understand it, the 2B costs category has never been challenged throughout the proceeding.

[9]                 Further, Ms Roe as applicant makes no challenge to the accuracy of the University’s costs or disbursements calculations. It is somewhat difficult to discern Ms Roe’s clear argument as to the costs questions from the her submissions. Instead, largely Ms Roe appears to replead the substance of her unsuccessful substantive claim. To the extent there is any discernible argument as to costs, it appears to be that the applicant, Ms Roe, regards herself as having performed a significant service to the Courts here. On no fewer than five occasions in her submissions Ms Roe alleges she has been “forced” or “required” to “slave for the Courts”.2 Ms Roe contends that, through bringing these proceedings, she has established a precedent that in her words “the public Universities of New Zealand may arbitrarily throw away any applications to enrol that they had received” and “may enrol or not enrol whenever they want for whatever arbitrary reasons they want (else no reasons at all)”. Ms Roe goes on to assert that the actions of the Courts and the University mean that it would be a “gross injustice” to require her to pay the costs of Mr Sim as the University’s counsel here, as the work that he has done was work that was instructed to be done by either the University or the Courts.

[10]             As will appear later in this judgment, I disagree. There is no merit in these arguments Ms Roe endeavours to raise. The amounts claimed by the University for costs and disbursements here represent work that was necessary for the University to defend a claim against it, a claim that this Court has judged was entirely without merit. And, it was the applicant Ms Roe alone who chose to bring this claim.

Discussion

[11]             In terms of the High Court Rules, generally the party who fails with respect to a proceeding such as the applicant here, should pay costs to the party who succeeds.3 Moreover some justification is required to depart from this general principle so that costs can be both predictable and expeditious.4

2      At paras 7, 8, 9, 10 and 11 of her costs submissions.

3      Rule 14.2(1)(a).

4      Rule 14.2(1)(g) and see Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27].

[12]             Indeed, in my view the work performed by Mr Sim as counsel for the University here has been valuable in clarifying and defining all the issues at hand which the Court was required to determine. Initially, Ms Roe as the applicant, had raised a wide and disparate range of issues in her judicial review claim and pursued a number of remedies later abandoned. These included an unspecified claim for an amount by way of damages and an order removing University personnel from office. Many claims were also not pursued at the hearing before me, this appearing to be a line taken by Ms Roe only at the very last minute. From an early stage, Ms Roe did not identify with any degree of clarity the real matters at issue in this proceeding. Only after a number of case management conferences and a successful strikeout application filed by the University did the ultimate issues become clear and were extraneous matters abandoned. It is appropriate in my view the University is awarded costs for all its work in this regard. I acknowledge as well that (unusually in civil proceedings) it was counsel for the University who prepared the common bundle for the assistance of the Court.

[13]             Neither can it be said in any sense as I see the position that the applicant was not forced to be “a slave for the Courts”. Ms Roe was not forced to bring her claim and at any time during the proceedings she could have abandoned it. As the Court has found (similarly to conclusions reached in other proceedings brought against Universities and related parties by the applicant),5 Ms Roe’s claim here is totally unmerited and based on certain assumptions and interpretations of the relevant statute which are incorrect. While she is free to challenge the University’s decisions by way of judicial review, this must be carried out with an acknowledgement that costs can be awarded against a party who has failed in the event the challenge is unsuccessful.

[14]             The applicant’s argument on this costs question, at best as I see it, might be seen as a request for the Court to exercise its discretion under r 14.7(e), to refuse to make a costs order on the basis the proceedings here concerned matters of public interest. However, in my view, Ms Roe’s application in the present case clearly fails to meet the threshold generally expected to engage this exception. As in her other applications pursued in this Court and elsewhere, the arguments Ms Roe presented

5      See also Roe v New Zealand Vice Chancellors Committee [2021] NZHC 719; Roe v University of Auckland [2021] NZHC 368; Roe v University of Waikato [2021] NZHC 1808.

here lacked merit and did not have “general public importance beyond the interests of her as the unsuccessful litigant”.6

[15]             Turning now to the quantum of costs and disbursements claimed, I repeat I am satisfied the costs claim on a standard category 2B scale basis is an appropriate one. Ms Roe the applicant in her costs memorandum, does not challenge the accuracy of the costs claimed or the amounts. Indeed, at para 1 of her costs memorandum she states:

“Ms Roe agrees that Mr Sim appears to have correctly listed the work that he has completed on these proceedings”.

[16]             Those costs claimed at $27,246 seem to me to be appropriate in all the circumstances here. They are approved.

[17]             As to disbursements, the amounts claimed by the University total $530 and, as I have noted, represent only Ministry of Justice Court filing fees. They are appropriately payable by the applicant here as well.

Result

[18]             In summary, I find the University as the successful party here is entitled to an award of costs and disbursements against the applicant Ms Roe under r 14.1(a) of the High Court Rules. This is on the basis of the primary principle outlined there that unless there are exceptional reasons, costs follow the event. “The loser, and only the loser, pays”.7 There are no exceptional reasons here of any kind to indicate that the primary principle noted above might not apply in this case. And, as to the quantum of those costs and disbursements claimed, these amounts are fully detailed in Mr Sim’s submissions and a schedule for the University submissions which Ms Roe has had since 30 November 2021. She has chosen to raise no specific issues as to this quantum and I am satisfied in all the circumstances here the amounts claimed are appropriate.

6      Taylor v District Court at North Shore (No 2), HC Auckland, CIV-2009-404-2350, 13 October 2010 at [9]; and see Roe v New Zealand Vice Chancellors Committee [2021] NZHC 1293 at [8]-[9] and the cases cited therein.

7      Shirley v Wairarapa District Health Board [2006] NZSC 63.

[19]             Accordingly costs and disbursements are awarded in this proceeding against Ms Roe, the applicant, in favour of the respondent University in the total sum of

$27,776.

Gendall J

Solicitors:
Gallaway Cook Allan, Dunedin

Copy to: Ms Roe