Wallace v Chief Executive of the Department of Corrections

[2023] NZHC 2830

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-579

[2023] NZHC 2830

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

ELETISE NATASHA WALLACE, RACHEL VINCENT, DOMINIQUE CARROLL, MIHI ISABELLA BASSETT, TIPARE ROPITINI, TARIANA JONES AND LARA ATKINS

Applicants

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

On the papers

Appearances:

V E Casey KC and A L Hill for the Applicants

S M Kinsler and M J Mortimer-Wang for the Respondent

Judgment:

10 October 2023

JUDGMENT OF COOKE J

(Costs)

[1]                 By judgment dated 18 August I upheld the applicants’ judicial review claims on a series of grounds.1 The challenged decisions involved the transfer of sentenced women prisoners out of Arohata Prison to prisons in Auckland and Christchurch, and the effective closure of Arohata for most sentenced women prisoners. I indicated that the applicants would be entitled to costs and that if costs could not be agreed memoranda could be filed.2 Costs have not been able to be agreed and memoranda have been filed.

1      Wallace v Chief Executive of the Department Corrections [2023] NZHC 2248.

2 At [122].

WALLACE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2830

[10 October 2023]

[2]                 The respondent agrees to an award of costs in favour of the applicants, that the proceeding should be categorised as category 3, and with the time band C assessments for a number of steps claimed. But there are differences between the parties that fall into two general categories:

(a)the respondent disagrees with some of the steps claimed by the applicants; and

(b)the applicants seek indemnity costs, or an uplift of costs for reasons which are largely disputed by the respondent.

Disputed steps

[3]                 The respondent disputes some of the steps in the applicants’ claim. I address each of the matters in turn.

[4]                 The applicants make claims under steps 16, 22 and 24 under time band B for a notice to answer interrogatories, filing an interlocutory application for discovery and preparing written submissions (totalling 3.1 days). The respondent points out that what was actually filed of counsel was a memorandum that encompassed those three matters and proposes an allowance of 1.5 days. I agree with the respondent’s submission. Costs should not be calculated on the basis of steps that a party could have taken. I also agree that treating the memorandum as equivalent to preparing written submissions for an interlocutory application on a band B basis, involving 1.5 days, is appropriate.

[5]                 The applicants’ claim on the time band C basis for steps 22 (filing interlocutory application), 24 (preparing written submissions) and under 26 and 27 (appearance for counsel) for the cross-examination application (totalling 5.75 days). The respondent says that these steps should be allowed under time band B which would involve a total of 2.85 days. I agree with the respondent. There is no reason why this interlocutory application should be treated as a particularly onerous one in terms of the time required. Cross-examination in judicial review is unusual, but the time band assessment is not the place to address that issue.

[6]                 The applicants’ claim under steps 22 (filing an interlocutory application) and 36 (steps not provided for) involving 1.6 days in relation to an application for interim relief concerning one of the applicants. The respondent says that this was incorrectly filed as an interlocutory application in this proceeding, and a number of procedural/jurisdictional points are raised. I do not accept them. The application sought to stop a prisoner being moved from Arohata to Auckland Regional Women’s Corrections Facility. The Chief Executive then transferred her back to Arohata. As explained in the substantive judgment, at the time of the interim relief application the Court was advised that this prisoner would not be transferred from Arohata.3 Her transfer after interim relief was decided then gave rise to this further application. The fact that such a further application was made was hardly surprising in those circumstances. There is also no substance to the respondent’s argument that the application was made in a personal rather than the representative capacity advanced by the applicants in this judicial review claim — the application was advanced by one of the applicants to this proceeding. I see the application as appropriate, and that the cost of it should be allowed as claimed.

Claim for uplift

[7]                 The applicants seek either the award of indemnity costs, or an uplift of costs under r 14.6 for a series of reasons contemplated by that rule. The respondent accepts the general importance and Bill of Rights significance of the case, but says that this does not justify an award of indemnity costs but only a percentage uplift.

[8]                 I accept that there are two factors that justify an increase to the costs award under r 14.6.

[9]                 First, the Court did not accept the affidavit evidence filed by the respondent in relation to a factual matter that was decisive for one of the grounds of review. In particular the Court did not accept the respondent’s affidavit evidence that the individual circumstances of each of the women prisoners were considered when the transfer decisions were made for each of them. I accept the respondent’s point that this did not go as far as a credibility finding, and that the Court routinely makes

3 At [32].

decisions on what evidence it accepts or rejects in civil proceedings. But in judicial review proceedings such findings should not be necessary. The evidential dispute increased the costs of the proceeding because of the need for the cross-examination application (which was opposed) and it also lengthened the substantive hearing. There is also significance in the fact that had the true factual position been known at the interim relief hearing it is possible that the outcome of that hearing would have been different, and accordingly the costs of the proceedings overall were increased because of this evidence. The respondent’s evidence may also not have been consistent with the duty of candour which the Court expects of the Crown. These circumstances fall within r 14.6(3)(b)(iii) as the factual dispute caused an unnecessary increase to the time and expense of the proceeding.

[10]              Secondly, the applicants seek higher costs because the proceedings were of general importance for persons other than the parties and involved a vindication of rights under the New Zealand Bill of Rights Act 1990. This can warrant an uplift under r 14.6(3)(c) and (d) or the award of indemnity costs as the Court of Appeal recognised in Attorney-General v Udompun.4 I accept that these principles are engaged here. The applicants brought the proceeding on behalf of all of the women prisoners who had been transferred out of Arohata Prison, and more generally. The Court found that the statute had not been complied with and that there had been a breach of non-discrimination rights under the Bill of Rights. In that context it is significant that the applicant group is a significantly disadvantaged group. It is important that disadvantaged groups have access to the courts to vindicate rights, and that there should not be financial barriers in that respect. This is part of the justification for an uplift.

[11]              I consider that the above two factors warrant an uplift of the costs award by 25 per cent. But I do not award indemnity costs as I am not satisfied that the standards set by r 14.6(4) arise. Moreover the award of costs should not be regarded as the remedy for the breach of the Bill of Rights. That remedy remains to be addressed as part of this judicial review proceeding.

4      Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186]–[187].

[12]              The applicants brought these proceedings under a grant of legal aid. Counsel for the applicants advise that quantum of costs representing indemnity costs “is expected to be close to the scale costs calculated in accordance with the attached schedule”. That means that the principles set out in r 14.2(1)(f) will be relevant — the award of costs should not exceed the actual legal expenditure of the applicants to date. The actual legal aid payments for the proceedings to date will accordingly operate as a ceiling on the amounts that may be recovered under this costs award.

[13]              The uplifted costs so awarded may be close to, or actually involve an award of the applicants’ actual legal expenditure notwithstanding that they have not persuaded the Court to award them indemnity costs. But that does not meant that their award should be reduced. The fact that a particular litigant has lower legal expenditure than expected by the Rules, in this case because the expenditure has arisen through a grant of legal aid, does not mean that a appropriate uplift of costs under r 14.6 should be reduced. If a party has incurred legal expenditure more efficiently they should not be penalised for having done so.

[14]              The applicants are accordingly awarded costs on the basis set out above, including a 25 per cent uplift.

Cooke J

Solicitors:

Amanda Hill, Barrister and Solicitor, Lower Hutt for the Applicants MC, Wellington for the Respondent