Slavich v Wellington District Court

[2023] NZHC 472

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-593

[2023] NZHC 472

UNDER

Section 8 of the Judicature Review Procedures Act 2016

IN THE MATTER

of an application for Judicial Review

BETWEEN

JOHN KENNETH SLAVICH

Plaintiff

AND

WELLINGTON DISTRICT COURT

First Respondent

ATTORNEY-GENERAL

Second Respondent

Hearing:

On the Papers

Counsel:

Plaintiff in Person

P J Gunn and I M McGlone for Respondents

Judgment:

10 March 2023

JUDGMENT OF McQUEEN J [COSTS]

[1]                 On 21 February 2023, I issued a judgment striking out Mr Slavich’s statement of claim in this proceeding.1 I then directed the parties to file memoranda on costs.2 They have now done so. I now address the remaining issue of costs.

1      Slavich v Wellington District Court [2023] NZHC 251.

2 At [66].

SLAVICH v WELLINGTON DISTRICT COURT [2023] NZHC 472 [10 March 2023]

The Attorney-General

[2]                 The Attorney-General seeks costs on the basis that he was successful in his strike-out application on a 1A basis, in the sum of $5,247 plus disbursements of

$530.43. The Attorney-General submits that costs on interlocutory applications are awarded in the usual fashion, and that therefore Mr Slavich should pay costs.3 He says that there is no reason to depart from the principle that costs follow the event. The Attorney-General does not address why he says that 1A is the appropriate categorisation for costs in this proceeding.

Mr Slavich

[3]                 Mr Slavich opposes the Attorney-General’s position on costs, saying that there is good reason to depart from the principle that costs follow the event. He says that:

(a)the Attorney-General’s strike out application was a re-litigation of matters which have previously been determined;

(b)the Court of Appeal never determined particular issues in his appeal against conviction in 2009, and this was admitted by the Attorney- General;

(c)it is improper for the Attorney-General to file a costs claim;

(d)the Attorney-General has misled the Court with conscious and deliberate dishonesty;

(e)my judgment of 17 February 2023 is subject to a recall application (which I note has not to date been accepted for filing by the Registry); and

(f)by reference to a number of matters discussed  in  my  judgment  of  17 February 2023, essentially, that the judgment is wrong.

3      High Court Rules 2016, r 14.8.

[4]                 Mr Slavich  filed  a  further  memorandum  and  accompanying  material  on 9 March 2023, which he says is evidence of the Attorney-General’s “conscious and deliberate dishonesty”, which he submits is “a significant consideration in relation to costs”. The extra material filed is correspondence between Mr Slavich and the Crown Law Office.

Discussion

[5]                 The costs regime created by the High Court Rules 2016 is intended to be predictable and expeditious.4 The party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.5 That is the principle that costs follow the event. The same is true in respect of costs on opposed interlocutory applications.6 There are limited exceptions to that rule, as contained in  r 14.7.

[6]                 Mr Slavich has not raised any issues that come within the usual reasons justifying a refusal or reduction in costs. Nor has he raised any special matters which would justify this Court refusing or reducing costs.

[7]                 As such, in accordance with the principles that costs should be predicable, expeditious, and follow the event, I am satisfied that it is appropriate to award costs to the Attorney-General.

[8]                 Generally, proceedings of average complexity requiring counsel of skill and experience considered average in the High Court are categorised as 2B for costs purposes.7 I note that this proceeding has not yet been categorised for costs purposes. Mr Slavich did state in a case management memorandum dated 26 October 2022 that “the proceedings would be best considered Category 1 proceedings”. There does not appear to have been any comment from the Attorney-General on the categorisation of the proceedings in any manner until now.

4      High Court Rules 2016, r 14.2(1)(g).

5      Rule 14.2(1)(a).

6      Rule 14.8(1).

7      Rule 14.3.

[9]                 Had the issue been raised directly with me, I may have formed the view that the present proceedings are proceedings of average complexity requiring counsel of skill and experience considered average in the High Court, and that the reasonable time for the steps in this proceeding is a normal time.8 However, given that it is the Attorney-General seeking costs and that they relate to a successful strike-out application, I consider it appropriate to order costs on the scale 1A basis sought.

Result

[10]             I order that Mr Slavich pay costs to the Attorney-General of $5,247.00, plus disbursements of $530.43.

McQueen J

Solicitors:
Crown Law, Wellington for First and Second Respondent

8      High Court Rules 2016, rr 14.3 and 14.5.