Wilson v Commissioner of Police

[2013] NZHC 819

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-250 [2013] NZHC 819

BETWEEN  STEPHEN BARRY WILSON Applicant

ANDCOMMISSIONER OF POLICE First Respondent

ANDTAURANGA DISTRICT COURT Second Respondent

Hearing:         (On the papers) Counsel:          E Orlov for Applicant

SE McKenzie for First Respondent

Judgment:      19 April 2013

JUDGMENT OF BREWER J (Costs)

This judgment was delivered by me on 19 April 2013 at 10:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Stewart & Associates (Alexandra) for Applicant

Crown Law (Wellington) for First Respondent

COUNSEL Evgeny Orlov

WILSON V COMMISSIONER OF POLICE HC TAU CIV-2012-470-250 [19 April 2013]

Introduction

[1]      In my judgment of 14 September 2012, I held that the first respondent is entitled to costs.  He claimed them in a memorandum dated 24 September 2012.

[2]      The applicant has responded by filing memoranda disputing the costs claimed by the first respondent.

[3]      This judgment determines the extent of the applicant’s liability to pay costs.

For the reasons given below:

(a)      The  first  respondent  is  not  entitled  to  costs  on  that  part  of  the application for judicial review discontinued by the applicant before the hearing.  Costs on that part will lie where they fall.

(b)The first respondent is entitled to costs for the remainder of the application  for  judicial  review  on  a  2B  basis.    He  may  ask  the Registrar to fix the quantum accordingly.

Reasons

[4]      The  discontinued  part  of  the  application  for  judicial  review  relates  to allegations that the Police had wrongly failed or refused to investigate complaints made by the applicant against the complainant.   Subsequent to the filing of the application for judicial review, the Police carried out investigations and laid charges against the complainant.   This part of the application for judicial review was thus moot and it was discontinued accordingly.

[5]      Rule  15.2(3)  of  the  High  Court  Rules  provides  as  a  general  rule  that  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. However,  that  general  rule  may  be  displaced  if  the  Court  finds  there  are

circumstances which make it just and equitable that it should not apply.[1]

[1] Kroma Colour Prints Ltd v Tridonicatco NZ Ltd (2008) 18 PRNZ 973 (CA).

[6]      The merits of the respective cases do not normally feature in the decision of the Court.[2]     The reasonableness of the positions of both parties will be relevant, however.   The question is whether it was reasonable for the plaintiff to bring the proceeding and for the defendant to oppose it up to the point of discontinuance.  It follows that the conduct of the parties prior to the commencement of the proceeding may be relevant as may be the reason for discontinuing.

[2] Oggi Advertising Ltd v McKenzie (1998) 12 PRNZ 535.

[7]      An example of the operation of the Court’s discretion can be found in Olive Francis Retirement Home Ltd v Director-General of Health.[3]   In that case the Court declined to award costs to either party in a discontinued application for judicial review.   This was because prior to the application being heard, the defendant’s actions made the claim nugatory. The Court ordered costs to lie where they fall.

[3] Olive Francis Retirement Home Ltd v Director-General of Health HC Auckland CIV-2005-404-

1367, 13 July 2005.

[8]      In this case the applicant was charged by the Police with offences of physical and sexual violence against the complainant.  In turn, the applicant alleged that the complainant had committed crimes of fraud and intimidation.  His view was that the Police were acting against him but not against the complainant.  A significant period of  time  went  by  before  the  judicial  review  application  was  made.    The  first respondent in his statement of defence denied the allegation of failure to investigate and pleaded that the matters remained open, with the alleged perverting the course of justice incident being under active investigation and the fraud matter being an open file but not under active investigation.  The delays in progress reflected the Police assessment of the appropriate priority to be given to the matters.

[9]      I do not make any assessment of the merits of the respective contentions. Nor am I in a position to determine the reasonableness of the parties’ positions. However, the fact remains that between the date of filing of the statement of defence and the hearing of the application for judicial review the Police took the actions for which the applicant contended.  That rendered that part of the application for judicial

review moot.

[10]     I  acknowledge  that  actual  costs  were  incurred  by  the  first  respondent. However, actual costs would also have been incurred by the applicant.   I have decided to exercise my overall discretion in the matter of costs to rule that costs in this area will lie where they fall.

[11]     The question of costs for the remainder of the application for judicial review is straightforward.  Costs generally follow result.  The applicant failed to make out his case.  The fact that it was a civil action brought in respect of a decision made in the criminal jurisdiction of the District Court does not matter.  The High Court Rules apply and it would be wrong for me, having regard to my overall discretion, to create an exception, partial or otherwise, for cases brought with this sort of background.

[12]     I have therefore decided that the first respondent is entitled to costs on this part of the judicial review application on a 2B basis.

Brewer J