Thomas v Nelson District Court
[2025] NZHC 2144
•1 August 2025
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2025-442-5/
CIV-2025-442-22 [2025] NZHC 2144
UNDER the Judicial Review Procedure Act 2016 New Zealand Bill of Rights Act 1990 Criminal Procedure Act 2011
Declaratory Judgments Act 1908IN THE MATTER OF
Thomas v Nelson District Court
BETWEEN
THOMAS
Applicant
AND
NELSON DISTRICT COURT
First Respondent
LYNDA HEINE
Second RespondentRAYMA LEE KATU
Third RespondentLISA JENNINGS
Fourth Respondent
On the papers:
Counsel:
Applicant in person
K Whiting and L Sinclair for First Respondent
N S P Laing and Y E Clarisse for Second, Third and Fourth Respondents
Judgment:
1 August 2025
JUDGMENT OF GRAU J [COSTS]
THOMAS v NELSON DISTRICT COURT [COSTS] [2025] NZHC 2144 [1 August 2025]
Introduction
[1] In a judgment dated 4 June 2025, I granted Ms Thomas’ application for judicial review of two decisions of the Nelson District Court declining to accept her charging documents for filing in a private prosecution against the second, third and fourth respondents.1
[2] I noted that, as the successful party, Ms Thomas, who is self-represented, is presumptively entitled to costs at a daily rate of $500.2 I also outlined my provisional view that some of her conduct in the litigation may mean a reduced award of costs is appropriate.3 I encouraged the parties to agree to a reasonable quantum of costs, but evidently no agreement was reached.
[3]While Ms Thomas initially sought costs of $11,750 and disbursements of
$819.30, she has since filed a revised memorandum seeking $8,650 in costs and
$319.30 in disbursements.
[4] The second, third and fourth respondents argue that no costs should be awarded to Ms Thomas, given she did not seek costs on either of her applications, the first respondent made an early indication it would abide, and the second, third and fourth respondents provided submissions only to assist the Court in its decision-making process, as they did not themselves make any decisions reviewable by the Court.
[5] The first respondent contends that it should not be liable for costs, as it abided the decision of the Court, and did not act perversely, oppressively, or in bad faith.
1 [Thomas] v Nelson District Court [2025] NZHC 1440. The applicant’s name has been anonymised to prevent the indentification of a child in a connected Family Court proceeding.
2 New rules providing for costs for litigants in person came into force on 1 September 2024: High Court Amendment Rules 2024, cl 2.
3 At [66].
Submissions
Second, third and fourth respondents’ submissions
[6] Mr Laing for the second, third and fourth respondents submits that Ms Thomas is not entitled to an award of costs, since none of the respondents in the proceeding ‘failed’ pursuant to r 14.2 of the High Court Rules 2016 (HCR). When the first respondent abided the decision of the Court, and the second, third and fourth respondents did not themselves make any decision that was amenable to review, accordingly they cannot be said to have failed.
[7] Mr Laing also submits that, in the event the Court considers that costs should be awarded, costs should be on a reduced basis and should be borne solely by the first respondent as the decision-maker. In addition, while Ms Thomas seeks costs on both of the proceedings she brought (CIV-2025-442-5 and CIV-2025-442-22), costs should only be awarded in relation to one application when Ms Thomas could have amended her statement of claim in the CIV-2025-442-5 proceeding, instead of commencing a second proceeding. He notes the Court’s comment in the substantive decision that the second application was “an unnecessary separate proceeding”.
[8] If the Court does consider both sets of proceedings in the overall calculation of costs, Mr Laing argues Ms Thomas’ costs should be reduced pursuant to r 14.7(f)(ii) of the HCR. He notes a number of steps Ms Thomas sets out in her schedule of costs cannot be claimed, nor can a number of her disbursements, given they do not fit the definition of “disbursement” under r 14.1. He proposes that, for both proceedings including disbursements, the total amount of reasonable costs is $3,131.30 and it should be borne solely by the first respondent as the decision-maker.
First respondent’s submissions
[9] Ms Whiting on behalf of the first respondent, observes that the first respondent abided the decision of the Court and was excused from further attendance, with its involvement being limited to providing a record of the proceeding. Thus, the first respondent cannot be said to have failed for the purpose of r 14.2(1)(a).
[10] Ms Whiting also submits that, although an abiding party can be liable for costs, cost awards are rare in those circumstances. She notes the findings of the Court of Appeal in Coroner’s Court v Newton that costs will only be awarded against judicial officers in the rarest of circumstances when such officers have done something that calls for strong disapproval.4 She says there was nothing to suggest that the threshold described in Coroner’s Court v Newton was reached in this case, with the judgment only finding an error of law by the first respondent. She notes the first respondent had not acted perversely, oppressively, or in bad faith.
[11] For these reasons, Ms Whiting says the first respondent should not be liable for costs.
Who is liable for costs?
[12] The default principle is that the liability of each of two or more parties ordered to pay costs is joint and several, unless the Court directs otherwise.5 However, the Court of Appeal noted in Hong v Deliu that where the case is out of the ordinary in some significant way, consideration must be given to whether to alter that position, including whether a defendant has taken a reduced part in opposing judgment such as abiding the outcome.6
[13] The authorities concerning an award of costs in respect of a judicial review against both a decision-maker and the person or entity that benefited from that decision were helpfully summarised by Thomas J in Rochdale Precinct Society Inc v Christchurch City Council.7 In that decision, her Honour distilled the principles from those authorities as follows:
[22] In summary, unsuccessful parties are prima facie jointly and severally liable. The rule may be varied because the ultimate task of the Court is to make an assessment of overall justice as between the particular parties, in the
4 Coroner’s Court of Newton (2005) 17 PRNZ 907 at [44] and [46].
5 High Court Rules 2016, r 14.14.
6 Hong v Deliu [2016] NZCA 75, [2016] NZAR 667 at [24].
7 Rochdale Precinct Society Inc v Christchurch City Council [2018] NZHC 1708 at [18]–[22] citing
Beach Road Preservation Society Inc v Whangarei District Council (2001) 16 PRNZ 13 (HC) at
[19] and [21]; Kawerau Jet Services Holding Ltd v Queenstown Lakes District Council HC Invercargill CIV-2008-425-518, 19 May 2009 at [18]; Barrett v Wellington City Council HC Wellington CP 31/00, 25 July 2000 at [5] and [9]; and Sutton v Canterbury Regional Council [2015] NZHC 1000 at [41]–[43].
particular circumstances. Relevant considerations include whether and in what manner the parties participated in the proceedings, the extent to which one party was in error, and what measure of reliance was placed on the error by the other party.
[14] Of the cases canvassed in that judgment, the circumstances of this case are most similar to Kawerau Jet Services Holding Ltd v Queenstown Lakes District Council and Sutton v Canterbury Regional Council. The Councils abided the Court’s decision, while the second respondents in each case chose to resist the judicial review application. French and Gendall JJ respectively held that, while it was the Councils’ errors which led to the successful judicial reviews, the fact they did not defend the proceeding meant their liability should be limited to 20 per cent of the costs and disbursements, with the second respondent liable for the remainder.8
[15] Also relevant is the decision of Paul Davison J in Prescott v District Court at North Shore.9 That case concerned a successful judicial review of a decision of the District Court to refuse to accept charging documents for filing. It also predated the amendment to the High Court Rules which allows self-represented litigants to recover costs. However, his Honour nonetheless went on to discuss whether, if costs could have been awarded, they could be awarded against the District Court. His Honour noted that costs will not be awarded against a judicial officer, or the Court of which they are a part, for a mere error of law.10 In that case the District Court “correctly abided the decision of this Court, taking no active part in the proceedings” and therefore the District Court Judge had not acted perversely, oppressively, or in bad faith.11
[16] I consider the circumstances in this case are similar to Prescott. While I found the District Court Judge made an error in refusing to accept Ms Thomas’ charging documents for filing, as Chambers J noted in Beach Road Preservation Society Inc, costs applications are concerned with the litigation itself, not how the original decision
8 Kawerau Jet Services Holding Ltd, above n 7, at [18]; and Sutton v Canterbury Regional Council,
above n 7, at [41]–[43].
9 Prescott v District Court at North Shore [2018] NZHC 485.
10 At [27] citing Coroner’s Court v Newton, above n 4, at [46]; Siemer v District Court at North Shore [2013] NZHC 120, [2013] NZAR 168 at [12]–[15]; and Wang v District Court [2015] NZHC 1611, [2015] NZAR 1678 at [11].
11 Prescott, above n 9, at [28].
under attack came to be made.12 When the District Court correctly abided the Court’s decision, I do not consider it is appropriate to depart from the position that costs should not be awarded against a judicial officer or their Court. There is nothing to indicate the Court, or the District Court Judge, acted perversely, oppressively, or in bad faith.
[17] The cases outlined in Rochdale Precinct Society Inc make it clear that parties who respond to a judicial review proceeding, but did not make the decision under review, are liable to pay costs. Again, it is the conduct of the proceeding, rather than the making of the decision being challenged, that is relevant to determination of costs. Accordingly, I consider that the second, third and fourth respondents are solely liable for the costs incurred in respect of this proceeding.
What quantum of costs should be awarded?
[18] As I noted in the substantive judicial review decision, I considered that some of Ms Thomas’ conduct may warrant a reduction of costs. Rule 14.7 of the High Court Rules provides that the Court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if, among other things, the party claiming costs has contributed unnecessarily to the time or expense of the proceeding, or a step in it by taking or pursuing an unnecessary step or argument that lacks merit.13
[19] I consider that the memorandum seeking “strike out” of the respondents’ submissions and costs for advancing those arguments, and the second statement of claim filed to commence the CIV-2025-442-22 proceeding, are examples of such steps. I observe that in Taueki v Horowhenua District Council, it was found that other proceedings filed to the same end in the Māori Land Court meant that Mr Taueki had put the Council to unnecessary costs in having to oppose the application before the High Court.14 There the Judge noted that concurrent proceedings on the same subject matter, between the same parties, run in the same or different courts are regarded as an abuse of process.15 While I do not consider the filing of the second statement of claim went as far as being an abuse of process, given it did challenge a different
12 Beach Road Preservation Society Inc v Whangarei District Council (2001) 16 PRNZ 13 (HC) at [21].
13 High Court Rules, r 14.7(f)(ii).
14 Taueki v Horowhenua District Council [2017] NZHC 1742 At [18]–[20].
15 At [21].
decision, it is abundantly clear that it was an unnecessary step, as rather than bringing a second proceeding, Ms Thomas could have amended the first statement of claim to include the second decision. Accordingly, she contributed unnecessarily to the time and expense of the proceeding. The application to strike out the respondents’ submissions was entirely unmeritorious, but it did not require any response, other than a brief oral response at the hearing.
[20] As a result, I do not consider Ms Thomas is entitled to costs for commencing the second proceeding, or for the case management conference required for that proceeding, or in relation to her strike out application. Instead, she is entitled to the following costs:
Step
Description
Time
Amount
1
Commencement of proceeding by plaintiff
3
$1,500
10
Preparation for first case management conference
0.4
$200
11
Filing memorandum for first case management conference
0.4
$200
12
Appearance at first case management conference
0.2
$100
24
Preparation of written submissions
1.5
$750
26
Appearance at hearing of defended application
0.5
$250
31
Allowance for common bundle preparation
0.5
$250
$3,250
[21] I note that Ms Thomas has also sought costs for filing her memorandum of costs. Although there are varying views about awards of “costs on costs”,16 I consider that in this case such an award is not warranted, particularly when Ms Thomas filed two memoranda, and I do not consider the costs she sought were realistic.
16 Compare Body Corporate Administration Ltd v Mehta (No 4) [2013] NZHC 213 at [85] with
Jackson v Kerr [2022] NZHC 29 at [28].
[22] With regard to disbursements, some of the expenses sought by Ms Thomas, namely for paper and paper clips, do not fall within the definition of disbursements.17 However, the other sums sought, namely for postage of the documents for the proceeding (which I assume is for effecting service), the sealing fee and for software to prepare the common bundles, are claimable as disbursements. Those amount to
$271.30.
Conclusion
[23] I award Ms Thomas costs of $3,250 and disbursements of $271.30, to be paid by the second, third and fourth respondents.
Grau J
Solicitors:
Crown Law, Wellington for First Respondent
Duncan Cotterill, Nelson for Second, Third and Fourth Respondents cc: Ms Thomas
17 See High Court Rules, r 14.12(1).
0
9
0