S v Police

[2017] NZHC 1804

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002150 [2017] NZHC 1804

UNDER

the Judicature Amendment Act 1972

IN THE MATTER

of an application for judicial review

BETWEEN

S
First Plaintiff

CQ
Second Plaintiff

D
Third Plaintiff

AND

NEW ZEALAND POLICE First Defendant

DISTRICT COURT AT AUCKLAND Second Defendant

Hearing:	On the papers
Judgment:	1 August 2017

COSTS JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 1 August 2017 at 3 pm. pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland.

Copies to: Plaintiffs

S v POLICE [2017] NZHC 1804 [1 August 2017]

[1]      The background is set out in my earlier judgment.1

[2]      In brief, Police brought a strike out application against claims brought by S and D with some factual connection but little else in common.   The application succeeded in relation to S, but failed by a fine margin in relation to D.  Police seek (2B) increased costs against both.   D resists costs on the basis the strike out application  failed  against  him.    Counsel  for  S  has  since  changed.    Through Ms Cooper,  S  now  acknowledges  her  claim  “should  never  have  been  brought”. However, S submits costs should not be awarded against her as the proceedings were

“driven” by D.2

[3]      Key costs principles are helpfully contained within rr 14.1 and 14.2 of the

High Court Rules 2016. These provide:

14.1  Costs at discretion of court

(1)   All matters are at the discretion of the court if they relate to costs—

(a)   of a proceeding; or

(b)   incidental to a proceeding; or

(c)   of a step in a proceeding.

(2)   Rules 14.2 to 14.10 are subject to subclause (1).

(3)   The provisions of any Act override subclauses (1) and (2).

14.2 Principles applying to determination of costs

The following general principles apply to the determination of costs:

(a)   the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

(b)   an award of costs should reflect the complexity and significance of the proceeding:

(c)   costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:

(d)   an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:

1      S v Police [2017] NZHC 1060 at [3]–[12].

2      CQ took no active role in the proceeding. Its inclusion as a plaintiff remains a mystery.

(e)   what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs:

(f)   an award of costs should not exceed the costs incurred by the party claiming costs:

(g)   so far as possible the determination of costs should be predictable and expeditious.

[4]      It appears to be common ground 2B categorisation is correct.   It is in any event.

[5]      Now D.   I concluded D’s claim for arbitrary detention against Police was “bald, poorly pleaded and partially buried by scattergun pleading”.3   However, I also concluded D’s claim was not so clearly untenable it should be struck out.  So, the Police application in relation to D failed.  Given this, I decline to award costs against D.

[6]      S was unsuccessful.  As she now recognises, her claim should not have been brought.   It was unsustainable.   And, an abuse of process.   Increased costs are necessary.4

[7]      Police     seek     an     uplift     of     100     percent     with     reference     to Gill v Attorney General.5    The  case  has  some  similarity.     It  too  involved  an application for judicial review in the context of a search warrant.  However, there is one distinguishing feature.   The 100 percent uplift in part reflected the plaintiff’s conduct on appeal, which appears to have been “even more egregious” than his conduct at first instance.6

[8]      An uplift  of 50  percent  is  appropriate in  relation  to  S.   To  recapitulate, S brought a claim that could not succeed and which was also an abuse of process.

3      S v Police, above n 1, at [47].

4      High Court Rules, r 14.6(3)(b)(ii). See also r 14.6(4)(a).

5      Gill v Attorney General [2010] NZCA 468, [2011] 1 NZLR 433.

6 At [119].

[9]      In  reaching  this  conclusion,  I  reject  as  irrelevant  S’s  submission  the proceedings  were  driven  by  D.     Even  if  correct  (which  I  have  no  way  of determining), S was a plaintiff in a claim in which she sought judicial review of the execution of a search warrant in relation to her legal practice.  S had a direct interest in the proceeding as it constituted a collateral attack on criminal proceedings against her involving allegations of fraud.

[10]     Some downward adjustment must also be made in relation to S, for, not all of the time spent in connection with the proceeding is exclusively attributable to her. For example, while the strike out hearing was brief, D appeared and presented brief oral submissions in support of his position too.  However, S’s claim was the primary one; D’s was not. A reduction of 25 percent is appropriate.

[11]     Consequently, S is liable for 75 percent of Police’s 2B costs as uplifted by

50 percent.

……………………………..

Downs J