Wilson v Wellington District Court
[2023] NZHC 1398
•7 June 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-450
[2023] NZHC 1398
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for judicial review
BETWEEN
DAVID NOEL WILSON
Applicant
AND
WELLINGTON DISTRICT COURT
First Respondent
GARY DOUGLAS MANN
Second Respondent
On the Papers Counsel:
G H Allan and H Worth for the Applicant
P J Gunn for the First Respondent (abiding, appearance excused) No appearance for the Second Respondent
A Markham, Counsel Assisting
Judgment:
7 June 2023
COSTS JUDGMENT OF GWYN J
Solicitors:
WCM Legal, Wellington Crown Law, Wellington
Copy to:
Ms Markham, Wellington
WILSON v WELLINGTON DISTRICT COURT [2023] NZHC 1398 [7 June 2023]
[1] On 31 January 2023 I gave judgment in favour of the applicant, Mr Wilson, in his application for judicial review.1 I invited counsel to file any submissions as to costs, to be determined on the papers.
[2] Counsel for Mr Wilson has filed a memorandum dated 15 February 2023 and a further memorandum dated 16 March 2023. The second memorandum responds to the memorandum of counsel assisting, dated 15 February 2023.
Background
[3] Mr Wilson was charged in the Wellington District Court with an offence of theft by a person in a special relationship, contrary to s 220 of the Crimes Act 1961 (the charge). The charge against Mr Wilson was filed by David Hayes, barrister. The second respondent, Gary Mann, was the complainant.
[4] Mr Wilson applied to this Court for judicial review of the District Court’s decision under s 26 of the Criminal Procedure Act 2011 (CPA) to accept the charge for filing.
[5] The Wellington District Court, the first respondent, abided the application, as is usual practice. Mr Mann, the second respondent, also abided the application. For that reason, Ms Markham was appointed as counsel assisting the Court and to act as a contradictor.
[6] In the judgment I found that the decision of the District Court to accept the charge for filing under s 26 of the CPA was amenable to judicial review.2
[7] I concluded that, on a prima facie basis, the evidence advanced was not sufficient to prove the elements of the s 220 charge to the required standard.3
1 Wilson v Wellington District Court [2023] NZHC 44 [judgment].
2 At [49].
3 At [120].
[8] I also found that for Mr Mann to proceed with the prosecution of the charge, in the absence of advice to the District Court about the fact and result of an earlier interim injunction application heard in the High Court, was an abuse of process.4
[9] Accordingly, I granted Mr Wilson’s application for judicial review and directed that:5
(a)The District Court’s decision to accept the charge for filing be set aside.
(b)The Registrar of the District Court is not to accept the charging document for filing.
Submissions as to costs
Applicant
[10] The applicant seeks costs against the second respondent, Mr Mann. He does not seek costs against the Wellington District Court.
[11] Mr Allan, for the applicant, submits that the second respondent was directly and exclusively responsible for these proceedings, including through conduct that led directly to the subject decision of Judge Sainsbury in the District Court. Counsel submits that Mr Mann’s responsibility is not diminished by his decision to abide this Court’s decision.
[12] The applicant seeks an order for indemnity costs (or, in the alternative, increased costs), pursuant to r 14.6 of the High Court Rules 2016 (Rules).
[13] The applicant says Mr Mann’s conduct surrounding the proposed prosecution falls under “some other conduct” in para (f) of subs (4), which justifies the Court ordering indemnity costs totalling $102,116.53. This rule provides:
14.6 Increased costs and indemnity costs
…
4 At [147].
5 At [148].
(4) The court may order a party to pay indemnity costs if—
…
(f) some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.
…
[14] The applicant notes that this Court in Tamihere v Mediaworks Radio Ltd found indemnity costs awards under r 14.6(4)(f) are “reserved for specific circumstances occurring in the particular proceedings.”6
[15] The applicant submits that although it is a usual principle of costs law that parties who abide the Court are not susceptible to costs, the circumstances of this case justify indemnity costs because the applicant ought to have never been subject to criminal charges, and he would not have been, but for the wrongful conduct of the second respondent. The applicant should not have to shoulder the costs for securing judgment to that effect.
[16] The applicant notes that because the second respondent’s conduct has been improper and vexatious, in any other circumstance he would be liable for costs under r 14.6(4)(a). Interpreting that rule, the Court of Appeal in Bradbury v Westpac Banking Corp outlined five categories of circumstances where it can be appropriate for the Court to order indemnity costs: knowingly making false or irrelevant allegations of fraud; misconduct causing the court or other parties to lose time; commencing or continuing proceedings for an ulterior motive; commencing or continuing proceedings in wilful disregard of known facts or established law; and making allegations which ought to have never been made or unduly prolonging a case by groundless contentions.7 The misconduct of the second respondent by way of withholding information had the direct result of costing the Court and other parties time. In turn, this withholding amounted to wilful disregard of established facts and law. These two circumstances align with the Bradbury categories of cases where it is appropriate to
6 Tamihere v Mediaworks Radio Ltd [2015] NZHC 268 at [6].
7 Bradbury v Westpac Banking Corp [2009] 3 NZLR 400 (CA) at [29], citing Hedley v Kiwi Co-operative Dairies Ltd (2002) 16 PRNZ 694 (HC) at [11] and Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, 46 FCR 225 (FCA) at 232–234.
award indemnity costs. In the applicant’s view, the Court ought to discourage conduct of this nature by awarding indemnity costs.
[17] In the alternative, the applicant seeks costs on a 3B basis given the complexity, urgency and skill of counsel required, plus increased costs of 50 per cent, totalling
$65,453.75 (including disbursements). The applicant notes the test for increased costs is similar to that for indemnity costs under r 14.6(4)(f). Subsection (3) provides:
…
(3) The court may order a party to pay increased costs if—
…
(d) some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.
…
Counsel assisting
[18] Ms Markham, counsel assisting, has referred the Court to previous authorities which considered an application for costs against an abiding party. In Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council,8 the High Court referred to a decision of Chambers J in Beach Road Preservation Society Inc v Whangarei District Council,9 which said the Court is concerned with the parties’ conduct in the litigation at hand, not with how the original decision under attack came to be made. In particular, counsel assisting cites: “parties pay costs because they have elected to bring or defend proceedings and have adopted a stance in those proceedings which a Court has found to be unjustified.”10
[19] The Court in Kawarau noted that did not mean there was an absolute rule that parties who abide the decision of the Court can never be liable for costs, the Court must make an overall assessment of justice as between the parties.
8 Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council HC Invercargill CIV- 2008-425-518, 19 May 2009, applied in Sutton v Canterbury Regional Council [2015] NZHC 1000.
9 Beach Road Preservation Society Inc v Whangarei District Council (2001) 16 PRNZ 13 (HC) at [21].
10 At [21].
[20] Counsel assisting says that in this case the issues pursued by the applicant in the judicial review were capable of being fully ventilated in the District Court by the applicant bringing an application under s 147 of the CPA for dismissal of the charge against him. In light of that, counsel says that this proceeding was not strictly “necessary” in terms of Kawarau.
[21] In counsel’s submissions to award costs in this case would be, in effect, to order civil costs in relation to earlier criminal litigation.
[22] Ms Markham also notes that the charging document names the “prosecutor” as New Zealand Law Corp Ltd (a company of David Hayes, barrister). There is no indication that Mr Hayes was signing the charging document as counsel for, or otherwise on behalf of, Mr Mann. The documents submitted to the District Court described Mr Mann as “the complainant”, not “the prosecutor”.
[23] However, as counsel assisting notes, Mr Mann is named in the charging document as the person “with good cause to suspect” who, in terms of s 16(2)(c) of the CPA is the person “commencing the proceeding”.
[24] The overall submission for counsel assisting is that relevant factors for the Court in considering costs include that:
(a)Mr Mann did not contest the judicial review. The primary focus of any costs award should be his role in the present litigation, not what led to that litigation.11
(b)The litigation was not “necessary” in the sense of being the only available or reasonable legal remedy.
(c)Mr Mann is not named as the prosecutor.
11 Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council, above n 8; and Beach Road Preservation Society Inc v Whangarei District Council, above n 9.
(d)There is some evidence of Mr Mann’s impecuniosity (at the time of the events that are the subject of the prosecution).
[25] As to the finding of abuse of process, Ms Markham says that but for the non- disclosure to Judge Sainsbury of Cooke J’s decision, the Court would not have found that the prosecution was an abuse of process or was otherwise brought in bad faith. Further, although the Court found the non-disclosure was deliberate, there is no evidence that Mr Mann was personally involved in compiling the disclosure bundle or the submissions in the District Court. Counsel suggests it is unlikely there was an intention to conceal Cooke J’s judgment from the Court altogether given the judgment is in the public domain. Ms Markham notes it was not possible for the Court to conclusively decide on each element of the s 220 charge and instead the cumulative effect of several difficulties meant Mr Wilson’s obligations were not made clear enough to him to found criminal liability. This decision is quite different than a “hopeless case” or vexatious prosecution.
[26] In response, Mr Allan submits that it would be perverse for a defect in the charging document (arising from the mismatch between the required attestation and the ultimate sign-off by Mr Hayes as the purported prosecutor) to now provide a procedural hurdle to an award of costs.
Role of counsel assisting
[27]Section 178 of the Senior Courts Act 2016 provides:
178 Costs where intervener or counsel assisting court appears
(1)This section applies to proceedings in any senior court or other court.
(2)If the Attorney-General or the Solicitor-General or any other person appears as an intervener or counsel to assist the court in any civil proceedings or in any proceedings on any appeal and argues any question of law or of fact arising in the proceedings, the court may, subject to the provisions of any other Act, make any order it thinks just—
(a)as to the payment by any party to the proceedings of the costs incurred by the Attorney-General or the Solicitor-General in so doing; or
(b)as to the payment by any party to the proceedings or out of public funds of the costs incurred by any other person in so doing; or
(c)as to the payment by the Attorney-General or the Solicitor- General or that other person of any costs incurred by any of those parties by reason of his or her so doing.
(3)If the court makes an order under subsection (2)(b), the Registrar of the court must forward a copy of the order to the chief executive of the Ministry of Justice who must make the payment out of money appropriated by Parliament for the purpose.
[28] As I have noted, counsel’s appointment was to act as “contradictor”, given there were no active respondents. Counsel submits that it is important the role does not become a de facto legal aid system.12
[29] Counsel submits that in the circumstances of Mr Mann’s role, the Court may consider it appropriate to make an order that the costs are met by public funds.
[30] There is no ability under s 178 to order a non-party to meet the costs of counsel assisting. Counsel assisting’s fee has been paid by the Ministry of Justice.
Discussion
Counsel assisting
[31] I consider first the position of counsel assisting. On 14 September 2022 Ms Markham was appointed as contradictor, to assist the court, in the absence of the Wellington District Court and the second respondent taking an active part in the proceeding.13 Counsel assisting should not be liable for costs and nor have costs been sought by the applicant.
12 Erwood v Holmes [2017] NZHC 1278, [2017] NZAR 971.
13 For Mallon J’s direction that a contradictor be appointed, see Wilson v Wellington District Court [2022] NZHC 2082 at [8]; and for the appointment of counsel assisting, see Wilson v Wellington District Court HC Wellington CIV-2022-485-450, 14 September 2022 (Minute of Gwyn J).
Costs against a party who abides
[32] Costs can be awarded against a party who abides the decision of the Court.14 In Royal Forest and Bird Protection Society of New Zealand v Northland Regional Council, the High Court said:15
It cannot be said that a party abiding the decision of the Court can never be liable for any costs; ultimately, the task of the Court is to make an assessment of overall justice as between the particular parties. …
[33] If the abiding party adopts a reasonable position, they will not necessarily be liable for the whole cost of the proceeding.16 On a similar theme, in Hong v Deliu, the Court of Appeal said “[a] defendant abiding the outcome may indeed be liable for costs where it is just that it bear some share of the plaintiff’s costs.”17 In response to a submission that a party should be entitled to costs because he abided the decision of the Court and had not committed offences regarding perversion of justice, the Court said the threshold for awarding costs to a party who abides the Court has never been this high.18 Instead, in assessing whether to award costs to an abiding party, the court considers the overall assessment of justice.19
[34] Most of the authorities relating to costs against an abiding party concern a decision-maker who abides. In this case, that is the District Court. Mr Mann is in a different position and the statement from the Beach Road Preservation Society case relied on by counsel assisting, has little application. There the original decision was a decision of the District Court in its role as a statutory decision-maker. Here, the original decision was Mr Mann’s decision to bring the charge against Mr Wilson.
[35] It cannot be said that this proceeding is unrelated to the earlier prosecution. As counsel for the applicant observes, the proceedings originated from the second
14 Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council, above n 8, at [18].
15 Royal Forest and Bird Protection Society of New Zealand v Northland Regional Council [2019] NZHC 449, [2019] NZAR 587 at [41], citing Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council, above n 8.
16 Wang v North Shore District Court (No 3) [2015] NZHC 1611, [2015] NZAR 1678.
17 Hong v Deliu [2016] NZCA 75, [2016] NZAR 667 at [26].
18 At [16].19 Royal Forest and Bird Protection Society of New Zealand v Northland Regional Council, above n 8; Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council, above n 8; and Hong v Deliu, above n 17.
respondent’s decision to initiate a prosecution. I do not think anything turns on the fact that the prosecution was effectively filed on his behalf.
[36] Nor do I accept counsel assisting’s submission that, because Mr Wilson could have proceeded under s 147 of the CPA, instead of bringing this judicial review application, this proceeding was not “necessary”. As I concluded in the judgment,20 accessing s 147 requires that the individual become a defendant in a criminal proceeding — a decision which can invite potentially profound consequences for that person. The circumstances of the case merited consideration of the application for judicial review.
[37] I accept that Mr Mann should not be able to totally abdicate responsibility for this proceeding, simply by electing to abide. On an overall assessment of the justice of the case, it is appropriate that the second respondent bear some of the applicant’s costs.
Indemnity or increased costs
[38] The Court of Appeal in Bradbury explained the distinction between indemnity costs and increased costs.21 Indemnity costs are appropriate where the paying party has behaved badly or very unreasonably. Increased costs are appropriate where the paying party fails to act reasonably. In Patel v Patel, the High Court observed that it is not the purpose of a costs award to punish behaviour that was the subject matter of the substantive claim.22 Further, in declining an application for increased costs, the Court observed in Re the Estate of Keast that although r 14.6(3)(d) is expressed in broad terms, it does not “encompass using costs awards to effect a compensatory regime for actions which are unrelated to the reasonableness of the legal costs incurred in the litigation.”23
20 Judgment, above n 1, at [48]–[49].
21 Bradbury v Westpac Banking Corp, above n 7, at [27].
22 Patel v Patel [2020] NZHC 875 at [12].
23 Re the Estate of Keast [2015] NZHC 1505 at [8].
[39] I agree with Ms Markham that an award of increased or indemnity costs would be in the nature of a punishment for Mr Mann filing the earlier criminal prosecution and is therefore not appropriate.
Result
[40] I conclude that the applicant is entitled to costs against the second respondent on a 2B basis.
Gwyn J
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