Vincent v New Zealand Parole Board

[2021] NZHC 977

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2020-485-554

[2021] NZHC 977

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

ALFRED THOMAS VINCENT

Applicant

AND

THE NEW ZEALAND PAROLE BOARD

First Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Second Respondent

THE ATTORNEY-GENERAL

Third Respondent

On the papers
Judgment:	4 May 2021

JUDGMENT OF MALLON J

(Costs)

[1]        I refer to my judgment dated 15 December 2020.1 In that judgment I found that Mr Vincent’s right to be free from arbitrary detention was breached and ordered his release. Pursuant to that judgment Mr Vincent was released from prison into a care facility on 18 February 2021. He died in that care on 7 April 2021.

[2]       My judgment ordered costs in Mr Vincent’s favour. The costs relate to work undertaken for him while he was alive. Costs are sought on a category 3 basis, given

1      Vincent v New Zealand Parole Board [2020] NZHC 3316.

VINCENT v THE NEW ZEALAND PAROLE BOARD [2021] NZHC 977 [4 May 2021]

that its complexity and significance required counsel to have special skill and experience in the High Court. The second respondent accepts category 3 is appropriate. I agree.

[3]The issues concern:

(a)whether a greater time allocation than Band B should be allowed for one of the steps; and

(b)whether an overall uplift of 50 per cent to scale costs is warranted.

Band B or Band C

[4]       Counsel for Mr Vincent claims Band C (that is, a 10 day allocation) for the commencement of the proceeding. Counsel says that this reflects the more than four weeks of work involved for this step, and says the 10 days’ allocation was substantially exceeded on reading the file alone. Counsel refers to 48 Parole Board decisions, supporting papers and other disclosure comprising in excess of 5,000 pages.

[5]       Counsel for the second respondent notes that the judicial review proceeding, which was brought on at urgency as an alternative to habeas corpus, raised a broad spectrum of issues that had to be narrowed for an urgent adjudication on whether the Parole Board had erred in declining Mr Vincent’s release. Counsel says this meant much of the preparation related to matters that were not adjudicated on as the hearing had a more limited compass. Counsel says Band B ought to apply for the time allocation. This would result in the allocation for commencing the proceeding being three days rather than ten.

[6]       I consider Band C is appropriate. The more than four weeks of time is explained because of the 52 years Mr Vincent spent in prison, which meant there was an extensive file to be reviewed. As counsel for Mr Vincent says, it is difficult to know what to plead until the entire file has been read. An allocation of three days for the considerable work that I accept was involved is inadequate.

Uplift

[7]       Counsel for Mr Vincent claims an overall uplift of 50 per cent to scale costs on the basis of the extra time involved, the importance of the case and NZBORA vindication. Counsel relies on r 14.6 of the High Court Rules, which provides that increased costs may be ordered for various reasons, including:

(a)the nature of the proceeding is such that the time required substantially exceeds the time allocated under Band C;

(b)the proceeding is of general importance and reasonably necessary to bring it; or

(c)some other reason justifies an increase, despite the principle that costs determinations should be predictable and expeditious.

[8]       As to whether 50 per cent is the appropriate magnitude of uplift, counsel notes that it would effectively equate to indemnity costs for commencing the proceeding and scale costs (on a 3B and 3A basis depending on the step) for the other steps. This is because with Band C costs for commencement of proceedings at 10 days, and Band B or Band A costs for the other steps, the total claimed 22.175 days. If an allowance of 20 days is made for commencing the proceeding (which is closer to the actual time spent on that step), 10 days would be added to the 22.175 total allowance – that is, roughly a 50 per cent uplift to the total claim of 22.175 days. Counsel submits that indemnity costs in relation to commencing the proceeding is warranted given the nature of the claim and submits it is reasonable especially as indemnity costs have not been sought for any other step.

[9]       I consider  this  was  a  proceeding  of  general  importance.  I  found  that  Mr Vincent was arbitrarily detained (and Mr Vincent had not presented an undue risk to the community for some time) and his continued detention had become wholly disproportionate to his risk of reoffending. Were it not for counsel’s assistance in bringing Mr Vincent’s case to the Court, Mr Vincent may have died in prison.

[10]     When such fundamental rights are breached, full or indemnity costs may be appropriate.2 While indemnity costs are not appropriate as a matter of course,3 in Attorney-General v Udompun it was said:4

[186] In our view, the Judge was not wrong in principle to award indemnity costs, even though not all of Mrs Udompun’s claims succeeded before him. In this area it may not always be appropriate to allow costs to follow the event. It is important to remember that Baigent damages are awarded only where other remedies are not sufficient and awards are, in any event, modest. Applying the normal costs rules in such circumstances may discourage litigants from bring BORA claims. This would clearly have the result of weakening BORA protections. Indemnity costs could also, in suitable cases, be seen as necessary for a proper vindication of the right. This does not mean, however, that indemnity costs are to be awarded as a matter of course in BORA cases.

[11]     I consider that the three factors that counsel for Mr Vincent refers to weigh strongly in favour of a 50 per cent uplift. This was an important case, raising the fundamental rights of a prisoner who had been detained for over 52 years, brought on with urgency and involving substantial work by Mr Vincent’s counsel. A costs order for the amount that is sought serves to emphasise the importance of the right to be free from arbitrary detention and to recognise the work of counsel in bringing the case to the Court’s attention to secure Mr Vincent’s release.

Result

[12]     An order for costs claimed  in  counsel  for  Mr Vincent’s  memorandum  of 19 February 2021 is made, together with the agreed disbursements.

Mallon J

2      Akatere v Attorney-General (No 2) HC Auckland CIV-2004-404-6217, 1 March 2006.

3      Attorney-General v Van Essen [2015] NZCA 22, (2015) 10 HRNZ 155 at [155] and [158].

4      Attorney-General v Udompun [2005] 3 NZLR 204 (CA).