S v Attorney-General

[2024] NZHC 258

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000844

[2024] NZHC 258

UNDER

Limitation Act 1950

IN THE MATTER OF

Tort or negligence, exemplary damages, failure to provide adequate medical care resulting in pain and suffering and permanent eye damage

BETWEEN

S

Plaintiff

AND

ATTORNEY-GENERAL

Respondent

Hearing:

On the papers

Counsel:

Plaintiff in Person

M J Mortimer-Wang and C E Sinclair for Respondent

Judgment:

21 February 2024

Reissued:

1 March 2024

COSTS JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew

on 21 February 2024 at 3.30 pm and re-issued on 1 March 2024 pursuant to r 11.5 of the High Court Rules 2016

Registrar / Deputy Registrar Date ………………………..

S v ATTORNEY-GENERAL [2024] NZHC 258 [21 February 2024]

Introduction

[1]                  In my judgment of 15 December 2023,1 I held that Mr S’s application for leave to bring a claim under s 4(7) of the Limitation Act 1950 was declined. I held that Mr S had failed to apply for leave within six years from the date on which the cause of action accrued. His claim was accordingly limitation barred.

[2]The parties have since filed memoranda addressing the issue of costs.

[3]                  I find that costs should be ordered against Mr S and in favour of the Attorney- General and on a 2B basis (plus disbursements) as set out in the Crown’s memorandum of 7 February 2024.

[4]                  Mr S has resisted an award of costs. However, for the most part, he appears to simply re-argue the merits.

[5]                  It may be that Mr S is impecunious. However, impecuniosity is not generally a ground for declining to award costs.2 Costs awards must be at a meaningful level, even against an impecunious party, particularly where the case is found to have lacked merit.3

[6]                  There was no broader public interest element in these proceedings that warrant a reduction of costs.4 Mr S’s private law claim is for financial vindication for allegedly negligent medical care.

[7]                  Furthermore, there is correspondence from 5 October 2022 and 10 October 2022, when the Crown wrote to Mr S setting out the limitation arguments which I ultimately upheld. Mr S declined to discontinue with no issue as to costs at that point.

1      S v Attorney-General [2023] NZHC 3665.

2      Foni v Foliaki [2018] NZHC 3126 at [5](a), cited in Jessica Gorman and others McGechan on Civil Procedure (online looseleaf ed, Thomson Reuters) at [HR 14.7.01(e)(v)].

3      Foni v Foliaki, above n 2, at [5](b).

4      High Court Rules 2016, r 14.7(e).

Anonymisation

[8]                  I agree with the Crown’s memorandum of 20 December 2023 that Mr S’s name should be anonymised in this case. The following paragraph is to be added to the substantive judgment before it is distributed to publishers and media:5

Reference to the plaintiff’s name has been removed throughout this judgment due to the nature of the offending, where s 139 of the Criminal Justice Act 1985 applies, as well as the extent of litigation history where publication of the plaintiff’s name may lead to identification of the victim.

Andrew J

5      S v Attorney-General [2022] NZHC 2992 at 2, n 1.