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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Attorney-General

Details

AGLC: Smith v Attorney-General [2023] NZHC 3702
Case: [2023] NZHC 3702
Decision Date: 14 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Dennis Arthur Smith versus The Attorney-General was considered. Mr Smith had previously filed an application for judicial review which was struck out by the court. The Attorney-General then sought costs in relation to the proceedings. The primary legal issue was whether the Attorney-General was entitled to costs following the dismissal of Mr Smith's application. The court had to balance the principle that costs ordinarily follow the event with Mr Smith's claim of financial hardship.

The court noted that costs generally follow the event in civil proceedings, meaning the losing party typically pays the winning party’s costs. Given that Mr Smith’s application for judicial review was dismissed, the Attorney-General was the successful party. The court considered whether it should reduce or decline to award costs due to Mr Smith's impecuniosity. The court highlighted that while financial hardship can be a factor, it is not typically sufficient to avoid an award of costs unless in exceptional circumstances. The court also observed that Mr Smith had not provided any evidence of his financial hardship beyond his own statements.

In examining Mr Smith's arguments, the court found that the lack of costs in the Court of Appeal was due to the different nature of that proceeding, which was not subject to the same rules as the present civil case. The court also noted that no endorsement of the proceedings was evident from the District Court transcript, and the court's understanding of the importance of the matters to Mr Smith did not establish a justiciable issue. The court concluded that the Attorney-General was entitled to costs as claimed, noting that additional costs were incurred due to numerous conferences and Mr Smith's insistence on dealing with his interlocutory applications at the substantive hearing. The court determined that awarding scale costs was sufficient recognition of any financial hardship Mr Smith might face.

The court ordered that Mr Smith pay the Attorney-General costs in the sum of $18,881, together with disbursements of $815.28, totaling $19,696.28.

Orders