Smith v Attorney-General

[2023] NZHC 3702

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000022

[2023] NZHC 3702

UNDER THE

Judicial Review Procedure Act 2016

IN THE MATTER OF

An application for judicial review

BETWEEN

DENNIS ARTHUR SMITH

Applicant

AND

THE ATTORNEY-GENERAL

Respondent

Hearing:	On the papers at Auckland
Judgment:	14 December 2023

JUDGMENT (NO.2) OF POWELL J

[Costs]

This judgment was delivered by me on 14 December at 11.00 am pursuant to

r 11.5 of the High Court Rules

…………………..

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Law, Hamilton/B Thompson

DENNIS ARTHUR SMITH v THE ATTORNEY-GENERAL [2023] NZHC 3702 [14 December 2023]

[1]                 By way of judgment dated 1 November 2023 I struck out Mr Smith’s application for judicial review.1 At the conclusion of that decision I indicated that if the Attorney-General sought costs, a memorandum was to be filed within two weeks of the date of the judgment.2 Mr Smith would then have two weeks to reply, following which I would determine the issue on the papers.

[2]                 The Attorney-General now seeks costs in the sum of $18,881 together with disbursements in the sum of $815.28, a total of $19,696.28. These have been calculated based on a mix of category 2A and category 2B basis, a 2A basis for attendances related to callovers/conferences, and 2B with regard to the substantive applications filed by the parties and heard on 16 October 2023, the preparation of written submissions and the preparation of a bundle for that hearing, and for the appearance at the hearing before me.

[3]Mr Smith opposes any award of costs, advising by way of email:

1.I cannot afford costs being a super-annuitant, but any award of costs will return the Crown approx. $5.00pw.

2.The same matter seen before the Court of Appeal did not award costs.

3.I only did what the DCJ suggested to have the seven matters heard.

4.The HC judge said that he understood why these matters were important to a man in my position to have heard.

5.Justice should be for all, not the rich.

Discussion

[4]                 It is well established that costs ordinarily follow the event so that the loser will pay the winning party’s costs.3 In this case, as Mr Smith’s applications for judicial review was struck out, there can be no dispute that the Attorney-General as the respondent was the successful party.

1      Smith v Attorney-General [2023] NZHC 3082.

2 At [15].

3      High Court Rules 2016, r 14.2.

[5]                 It is likewise well established that a Court may decline to award costs where the party liable to pay is impecunious.4 Where impecuniosity is claimed there is a preference that evidence of limited financial means be provided in the form of a sworn affidavit.5

[6]                 Typically, financial hardship will not however be an answer to a claim for costs.6 Only in exceptional circumstances will a party’s financial position animate the Court’s discretion to reduce costs.7 This position is driven by the fact that it is “[un] desirable for this Court to make (what will always be essentially arbitrary) adjustments to costs awards to reflect financial circumstances”.8 This position was emphasised by Muir J in Foni v Foliaki, where his Honour declined to reduce an award of costs on account of impecuniosity, and relevantly stated:9

… I consider that abatement of costs awards because of personal circumstances will not typically be justified, having regard to the other more specific provisions of the relevant rules. I consider the discretion should be reserved for exceptional cases…

…

… although I have considerable sympathy for the circumstances Mr Foni now finds himself in, I do not consider this an appropriate case to reduce costs by some arbitrary amount to reflect his health and finances.

I take into account also the fact that significant breaches by the plaintiff in compliance with court orders are, as the first defendants submit, likely to have justified an application for increased costs. That these have not been sought by the defendants is itself implicit recognition of the plaintiff’s circumstances.

[7]                 Applying these principles, I note Mr Smith has provided no evidence to this Court by way of affidavit or otherwise to show he is currently experiencing or will experience financial hardship. Like Mr Foni, he simply states he is impecunious. As

4      Under r 14.7(g) this Court may reduce costs or decline to award costs for “some other” reason beyond those listed in r 14.7(f)(i)–(v) where that reason is capable of justifying refusal. This catch all ground has been interpreted to include financial hardship or impecuniosity. See Craig v Keith [2017] NZHC 2664, [2017] NZFLR 899 at [23]; Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7]; Simister v Tauranga Cruise Tourism Operators Association Inc [2015] NZHC 2133 at [15]; and Howard v Accident Compensation Corporation [2014] NZHC 3141.

5      Foni v Foliaki [2018] NZHC 3126 at [5].

6 At [5].

7      HA v Refugee and Protection Offer [2018] NZHC 1011 at [14]–[15].

8 At [16].

9      Foni v Foliaki, above n 5, at [11]–[14].

was noted by Muir J, costs against impecunious plaintiffs must nevertheless be set at a meaningful level,10 and an order declining to award costs would be inconsistent with this principle.

[8]Turning to the matters raised by Mr Smith:

(a)He is correct that costs were not payable against him in the Court of Appeal. This is because the Court of Appeal were considering a criminal appeal against the dismissal of the charge against Mr Smith. The High Court Rules 2016 (“HCR”) do not apply to criminal appeals. In contrast, the present proceedings are civil proceedings to which the HCR apply.

(b)It is not apparent from the District Court transcript that any comment that could be construed as an endorsement of these proceedings was given by Judge Marshall.

(c)The fact that I indicated I understood why the matters were important to Mr Smith did not mean there was a justiciable issue. When it was determined there was not, it became necessary to determine if costs should follow the event.

[9]                 Taking these various matters into consideration I am satisfied that the Attorney- General is entitled to costs. Having checked the calculation of the scale costs claimed and noting that Mr Smith has not taken any issue with those calculations, I am satisfied that orders for the costs as claimed should be made in favour of the Attorney-General against Mr Smith. In particular I note that additional costs were incurred as a result of the numerous conferences required, which took  place primarily at the request of   Mr Smith. Likewise, costs were further increased by Mr Smith’s insistence that his own interlocutory applications, filed after the application to strike out, were also dealt with at the substantive hearing. While the hearing itself was dealt with expeditiously, it meant that the Attorney-General was required to file submissions on Mr Smith’s application, as well as the application to strike out. In those circumstances, as it was

10 At [12].

in Foni, the application for scale costs, as opposed to increased costs, may be seen as sufficient recognition of Mr Smith’s financial hardship, if any hardship in fact exists.

Decision

[10]              Mr Smith is to pay costs to the Attorney-General following the strike-out of his application for judicial review in the sum of $18,881, together with disbursements in the sum of $815.28, a total of $19,696.28.

Powell J