Smith v Prison Director at Rolleston Prison

[2022] NZHC 3367

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000404

[2022] NZHC 3367

BETWEEN

PHILLIP JOHN SMITH

Applicant

AND

THE PRISON DIRECTOR AT ROLLESTON PRISON

Respondent

Hearing:

On the papers

Counsel:

The Applicant in person

P J Gunn & H P Graham for the Respondent

Judgment:

13 December 2022

JUDGMENT OF NATION AS TO COSTS

[1]                  In judicial review proceedings, Mr Smith challenged the lawfulness of a rule made by the Director of Rolleston Prison forbidding any sexual activity between prisoners within the Kia Marama and Totara Special Treatment Units for child sex offenders at Rolleston Prison.

[2]                  In a judgment of 15 September 2022, I declined the application for review.1 I said the Director was entitled to costs but, if there was no agreement over this, memoranda had to be filed for the parties.

[3]                  On 13 October 2022, counsel for the Director filed a memorandum seeking costs on a 1A basis in the sum of $9,435.41. Counsel sought costs on the basis:

1      Smith v The Prison Director at Rolleston Prison [2022] NZHC 2366.

SMITH v THE PRISON DIRECTOR AT ROLLESTON PRISON [2022] NZHC 3367 [13 December 2022]

(a)        the Director was the successful party;

(b)       the parties in a joint memorandum of 26 October 2021 had agreed the proceedings should be categorised as category 1 for costs purposes; and

(c)        the fact Mr Smith was a serving prisoner did not, of itself, constitute special reasons why costs should not follow the event.

[4]                  Mr Smith filed a memorandum on 19 October 2022. He opposed any award of costs, referring to r 14.7 of the High Court Rules 2016. That rule refers to the Court’s discretion to refuse to make an order for costs or to reduce the costs otherwise payable if the proceedings concern a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceedings.

[5]                  Mr Smith submitted his proceedings did concern a matter of public interest because they involved considerations of international human rights law and the New Zealand Bill of Rights Act 1993 as to the lawfulness of a rule that prohibited consensual sexual activity between prisoners. He submitted the rules and the proceedings did concern a question of public importance.

[6]                  I do not accept that the proceedings concerned a matter of public interest or controversy. There was no evidence before me in the proceedings that there was any public interest generally in the lawfulness of the rule. For all the reasons set out in the judgment, I found the rule was reasonable and lawful in the context and for the purposes it was made.

[7]                  Mr Smith explained in his affidavit of 30 November 2021 that he had brought these proceedings because of his views and concerns over issues concerning sexual identity. He said he brought these proceedings because of his personal decision to “stand up to discrimination if I see it”.

[8]                  Mr Smith was entitled to bring the proceedings for that reason. He did so with a comprehensive challenge to the lawfulness of the rule. The Director had to respond through presenting appropriate evidence and legal argument, all of which would have

required a significant use of Corrections’ staff time and resources, and costs through legal representation from Crown Law.

[9]                  The Director was successful in the proceedings. There is no reason to not apply the normal principle that the successful party will be entitled to costs.

[10]              The only item Mr Smith challenged in the schedule was an amount of $2,067 claimed for the filing of interlocutory applications. In reference to that, Crown Law reviewed the schedule it first submitted, and sought costs in the lower sum of

$8,958.41.

[11]              I have reviewed the revised schedule and accept that an order for costs in the sum of $8,958.41 is appropriate.

[12]              In his memorandum, Mr Smith also asked for an order that, if costs were awarded, the Court make an order staying the payment of costs until the final determination of the appeal filed as to this Court’s judgment. Crown Law has indicated it wound have no objection to determination or enforcement of costs being adjourned/stayed pending the outcome of Mr Smith’s appeal.

[13]              The filing of an appeal does not normally stay the judgment being appealed. Court resources will be used more efficiently if I make my determination as to costs now and I am doing so.

[14]              Given counsel’s intimation, I would not expect the order for costs to be enforced pending the determination of the appeal.

Solicitors:
Crown Law, Wellington.

Copy to:
P J Smith, Applicant.