Whichman v Auckland District Court

[2025] NZHC 2093

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2556

[2025] NZHC 2093

UNDER

s 27 of the New Zealand Bill of Rights Act 1990

IN THE MATTER

of a judicial review

BETWEEN

GEORGE WHICHMAN

Plaintiff

AND

THE AUCKLAND DISTRICT COURT

Respondent

Hearing:

On the papers

Appearances:

Plaintiff in person

D Jones and S R Hiha for respondent

Date of judgment:

30 July 2025

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 30 July 2025 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Crown Law, Wellington

Copy to:

Plaintiff

WHICHMAN v AUCKLAND DISTRICT COURT - Costs [2025] NZHC 2093 [30 July 2025]

[1]                 Mr Whichman discontinued this application for judicial review on the basis all issues had been rectified in a subsequent decision of the District Court but contended “Crown have agreed to pay [costs]”, as which he claimed to have incurred expenses, time and energy “valued over $4,000”.

[2]                 The District Court’s counsel disputed any such agreement, observing the District Court abided this Court’s decision. Mr Whichman replied “[t]he respondents did agree to pay costs”. My 23 June 2025 minute thus directed Mr Whichman “file and serve an affidavit stipulating who said what to whom when … . Otherwise I will order no costs are payable”.

[3]                 Mr Whichman instead filed a memorandum more generally seeking costs and disbursements, now amounting to $4,500, by reference to rr 5.50 and 5.52 of the High Court Rules 2016. Mr Whichman asserts the District Court’s previously impugned actions lacked integrity, and were done in bad faith and “ill-conduct”, but contends his discontinuance of the proceeding was “doing the ‘honourable’ thing” to avoid public scrutiny of the justice system. Hence he is “dishonoured” by the District Court’s refusal to pay costs.

[4]                 The rules Mr Whichman cites relate to defendants’ entitlements to file appearances. Mr Whichman is not a defendant but the plaintiff in a subsequently discontinued proceeding. Made prior to the giving of judgment, and therefore without determination of his allegations, Mr Whichman had a general right to discontinue the proceeding.1 There was nothing requiring him first to obtain leave.2 The effect of such discontinuance ends the proceeding against a defendant, but does not affect the determination of costs.3 As to those costs:4

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.

1      High Court Rules 2016, r 15.19.

2      Rule 15.20.

3      Rule 15.21.

4      Rule 15.23.

[5]                 There  accordingly  is  no  basis  for  the  District  Court  to  pay  costs  on  Mr Whichman’s discontinuance of the proceeding. Mr Whichman has not established any basis for such liability on the part of the District Court. I therefore will order as  I said I would.

[6]                 I order no costs are payable on Mr Whichman’s discontinuance of the proceeding.

—Jagose J