Tuatau v District Court at Christchurch

[2015] NZHC 197

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000620 [2015] NZHC 197

BETWEEN

ROBERT SEKO TUATAU

Applicant

AND

DISTRICT COURT AT CHRISTCHURCH

First Respondent

THE SOLICITOR-GENERAL Second Respondent

Submissions:	11 and 19 December 2014
Counsel:	A Bailey for Applicant K Laurenson for Respondent
Judgment:	17 February 2015

JUDGMENT OF GENDALL J (As to Costs)

[1]      This is an application for costs by the Solicitor-General seeking costs on a 2A basis upon a discontinued judicial review application brought by Mr Robert Tuatau. The circumstances of this discontinuance stemmed essentially from the decision of the Ministry of Justice to decline Mr Tuatau legal aid for his application.  The total

costs  sum  sought  is  $2,502.66,  comprised  of  $2,388  in  costs1   and  $114.66  in

disbursements.

Background

[2]      Mr Tuatau was arrested and charged with seven offences on 23 December

2013.   These were three arson offences, two theft offences and two  charges of

1      The second respondent claimed items 2 and 12 of the High Court Rules, sch 3 at the daily recovery rate of $1,990 stipulated in sch 2.

unlawfully interfering with a motor vehicle.  Mr Tuatau denied the alleged offending prior to his arrest.

[3]      At the time Mr Tuatau was arrested, the Police made no request for him to provide a DNA sample.  A series of procedural steps took place, culminating on 4

August 2014 in Mr Tuatau filing an application for all seven charges to be dismissed pursuant to s 147 of the Criminal Procedure Act 2011 on the basis that no properly directed jury could return a conviction.

[4]      This application seemed to spur the Police to action.  On 7 August 2014 the Police filed an application for a suspect compulsion order pursuant to the provisions of the Criminal Investigations (Bodily Samples) Act 1995.  In essence, this was to compel the production of a DNA sample.

[5]      On 8 August 2014, Mr Tuatau again appeared before the Court requesting that his application for the s 147 dismissal of charges be determined as soon as possible.  The District Court refused to do so until the suspect compulsion order had been determined.  It was this decision of the District Court that Mr Tuatau sought to

review,2   on the basis that:

The decision was, in all the circumstances, irrational and/or unreasonable in the sense it was a decision that no reasonable Court in the position of the first respondent would make and is thereby flawed.

Submissions

[6]      The Crown’s position is that this is a simple case where costs ought to follow the event in favour of the successful party, in this case the Crown, unless Mr Tuatau can point to some sufficient basis for displacing the presumption.

[7]      Mr Tuatau  responds  by  stating  that  the  only  reason  the  proceeding  was discontinued was that legal aid was declined, which is reflective of a Government policy to cut costs.  Further, in these circumstances it was not possible for Mr Tuatau

to defer filing the proceeding, as otherwise he would have run the real risk that the

2      I note that pursuant to s 65 there is no right of appeal against orders under the Criminal

Investigations (Bodily Samples) Act 1995.

review proceedings would become moot.   Indeed, counsel for Mr Tuatau submits that the review proceeding did have some merit.  Finally, counsel observes that, had Mr Tuatau been granted legal aid, then he would have been shielded from an adverse costs award absent exceptional circumstances.

Resolution

[8]      While costs are at the discretion of the Court,3 like all discretions it has never been unfettered and must be exercised judicially.4    This means that the discretion must not be exercised arbitrarily or capriciously, with there being “a strong implication that a Court is to apply the regime in the absence of some reason to the contrary”.5

[9]      The starting point relied on by the Crown is that the party who fails with respect to a proceeding should pay costs to the party who succeeds.6   However, in a discontinuance there is no real victor in the true sense of the term.   Rule 15.23 therefore provides for the specific situation as follows:

15.23   Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[10]     There is therefore a presumption in favour of the Crown that Mr Tuatau will pay its costs.   There is also, however, provision for reduced costs where the proceeding concerned a matter of public interest.7

[11]     I consider this a case where in the circumstances there is some public interest in Mr Tuatau as a participant in the machinations of the criminal law being able to

test adherence to proper criminal procedure.  This is what Mr Tuatau sought to do.

3      High Court Rules, r 14.1.

4      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305, citing

Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) and Cates v Glass [1920] NZLR

37 (CA).

5      Mansfield Drycleaners Ltd  v  Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd

(2002) 16 PRNZ 662 (CA) at [27].

6      High Court Rules, r 14.2(a).

7      Rule 14.7(e).

In my view the proceeding was also brought generally in good faith and discontinued as soon as legal aid was declined.  This stance was as reasonable as possible in the circumstances of an impending criminal trial.8

[12]     The question then comes to quantum.   In the circumstances here, I must determine whether Mr Tuatau should contribute to the Crown’s costs or whether he should be entirely immune.  I consider a contribution would be appropriate.  While there are public interest overtones, the Crown cannot be expected to bear the substantial costs of collateral attacks on criminal process in circumstances where a cause is claimed as just and righteous, but not pursued, and where a defendant says he/she would only pursue such cause with the financial backing of the State.

[13]     I therefore order that Mr Tuatau pays the Crown $614.66, consisting of $500 in costs and disbursements of $114.66.

...................................................

Gendall J

Solicitors:

Patient & Williams, Christchurch

Crown Law, Wellington

8      See Kroma Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973;

FM Custodians Ltd v Pati [2012] NZHC 1902 at [10]–[12].