Tomar v Attorney-General

[2020] NZHC 3502

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-703

[2020] NZHC 3502

BETWEEN

AKHIL TOMAR

Applicant

AND

ATTORNEY-GENERAL

First Respondent

MASSEY UNIVERSITY

Second Respondent

Hearing:	On the papers
Judgment:	22 December 2020

JUDGMENT OF GRICE J (costs)

[1]    This is an application for costs by the Attorney-General on behalf of the Department for Corrections (the Department). The substantive judgment on this matter was delivered in December 2019.1 The timetable set out in that decision for the filing of submissions on costs has long expired. However, while the Department was able to meet the timetable, Mr Tomar, through no fault of his own, did not receive the relevant documentation and has had various difficulties in filing his submissions and affidavits.   The Department has taken no issue with the substantial delay  in    Mr Tomar filing his material with the Court.

[2]    Mr Tomar is a serving prisoner. The substantive proceedings related to claims that he had been treated unfairly in relation to his access to extramural study. He had been studying through Massey University while in prison with some success. He felt

1 Tomar v Attorney- General [2019] NZHC 3485.

TOMAR v ATTORNEY-GENERAL [2020] NZHC 3502 [22 December 2020]

he was being improperly limited in the courses he was allowed to take by both the Department and Massey University.

[3]    Mr Tomar’s claims were for breaches of statutory obligations, contract, tort and under the New Zealand Bill of Rights Act 1990 (NZBORA). Both the Department and Massey University denied the allegations. I dismissed all the claims, including the allegations of misfeasance in a public office brought against the Department staff.

[4]    I noted that allegations of misfeasance in public office were serious allegations and required a concomitant level of proof. I found that the evidence failed, by a substantial margin, to establish the claims. No intent was proved against any of the named individuals.

[5]    I noted in my judgment dismissing all claims that the usual position was that costs were awarded to the successful parties. I indicated that if costs were sought by either of the respondents, an application and supporting memorandum should be filed on a timetabled basis.

[6]    Massey University, the second respondent, and Mr Tomar filed a joint memorandum dated 27 January 2020 indicating agreement had been reached that no award as to costs would be sought by the University.

[7]    The Attorney-General sought costs following the timetabled directions. The costs sought were on a category two, band B scale basis.2 This appeared appropriate as the proceedings were of average complexity and required counsel of skill and experience considered average in the High Court. A normal amount of time as envisaged on that category/band was appropriate in the circumstances.

[8]    The claims in general faced substantial difficulties in many respects. There was no public interest aspect to them. The first respondent indicated that it had pointed out the defects in the claims to Mr Tomar at an early stage of the proceedings, but he had not been receptive. A copy of the letter from the Department to Mr Tomar dated 11 June 2019 has been produced. It was sent on a without prejudice save as to costs

basis. It explained why Mr Tomar’s claim for damages would not succeed. It also indicated that the Department would take reasonable steps to facilitate Mr Tomar’s study with Massey University within the constraints attendant on his status as a serving prisoner. It invited Mr Tomar to withdraw his claims. Mr Tomar responded by making handwritten notes on the letter of 11 June, but agreement was not reached.

[9]Mr Tomar takes no issue with the calculation of costs based on a 2B basis.

[10]   The basis upon which Mr Tomar opposes costs is that he has insufficient funds to pay costs and that he has no relative, family or trust with sufficient assets or income to financially support him. He noted he had no income and only a few hundred dollars in his accounts. He has fines of some $1,500 he must pay.

[11]   Mr Tomar did not produce any independent evidence of his financial position such as bank statements, but there is no reason not to accept his sworn evidence as to his financial situation.

[12]   In the circumstances, costs would usually follow the event. I do not consider that there is any reason to depart from that position. The first respondent’s claim based on a 2B calculation of costs, together with disbursements according to the schedule, which has been provided to Mr Tomar is reasonable in the circumstances.

[13]   Mr Tomar was not in receipt of legal aid. Therefore the usual provisions in relation  to  costs  against  a  legally-aided  person  do  not  apply.3  The  fact  that   the Department attempted to assist Mr Tomar by pointing out the difficulties with his claim and offering to assist him in his studies, within the constraints it had, in a letter that was clearly headed “without prejudice save as to costs” must be taken into account. In addition the manner in which Mr Tomar conducted the proceedings, including last-minute applications for interrogatories and amendments to pleadings, caused the Department  to  incur  further  costs.  There  is  no  reason  to  penalise  the Department by not awarding it costs. The costs sought are reasonable in the circumstances. There are no additional claims such as for a second counsel which

might have been justified in this case. There appears no reason why costs should not be awarded as claimed.

[14]   Mr Tomar was given the opportunity to withdraw from the proceedings at a time when the Department appeared willing to let any costs incurred to that date lie. Despite that, Mr Tomar continued with the applications. He would have been well-aware of the jeopardy he was putting himself in, in terms of an award of costs if he was unsuccessful in the proceedings.

[15]   In this case Mr Tomar had every opportunity to reconsider his position in view of the difficulties with his claims pointed out by the Department. In those circumstances there is no reason for the order sought for costs not to be made. The costs regime is predicated on the primary principle that the unsuccessful party should pay costs and that costs are predictable, consistent and expeditious in determination.4 The rules are aimed at encouraging the efficient conduct of proceedings. While some allowances must be made for litigants in person who are not familiar with the rules, the opportunity was extended to Mr Tomar to resolve this matter without jeopardy as to costs.

[16]   The Department will be aware of Mr Tomar’s impecunious financial position. It is up to it whether and how it seeks to recover the costs. However, in the circumstances, it is appropriate that an order for costs as sought be made.

[17]   Accordingly, the first respondent is awarded costs on a 2B basis together with disbursements as claimed in the schedule to the first respondent’s memorandum as to costs dated 21 January 2020, a total of $49,554.

Grice J

Solicitors:

Crown Law Office, Wellington for the First Respondent.