Wright v Attorney-General

[2021] NZHC 2101

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2015-404-2800

[2021] NZHC 2101

BETWEEN

NICHOLAS DAVID WRIGHT

Plaintiff

AND

ATTORNEY-GENERAL as representative of the NEW ZEALAND POLICE

First Defendant

AUCKLAND DISTRICT HEALTH BOARD

Second Defendant

Hearing:

On the papers

Counsel:

Plaintiff in person

W Potter and B Rorrison for the First Defendant
D McLellan QC and H Ifwersen for the Second Defendant

Judgment:

12 August 2021

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 12 August 2021 at 4:00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

WRIGHT v ATTORNEY-GENERAL as representative of the NEW ZEALAND POLICE [2021] NZHC 2101 [12

August 2021]

[1]    In my judgment dated 21 June 2021, I dismissed two interlocutory applications made by Mr Wright. The applications concerned interrogatories. In the first application Mr Wright applied to review a decision of Associate Judge Bell. In the second he applied under r 8.38 for orders requiring certain interrogatories to be answered.

[2]    Having dismissed the applications, I said the defendants were entitled to costs and that if the parties could not agree costs they could file memoranda. Memoranda have been filed.

[3]    The first defendant seeks, on both applications, costs on a 2B basis and disbursements. The second defendant seeks, on the first application, costs on a 2B basis and disbursements. On the second application, the second defendant seeks costs on a 2B basis with an uplift of 50 per cent and disbursements. Both defendants provided schedules that calculated the costs and disbursements claimed.

[4]    Mr Wright resists any award of costs. He says this is one of those rare cases in which costs on the applications should be deferred. He also says that costs are often reduced or refused in cases where claims are made alleging breach of the New Zealand Bill of Rights Act 1990. He urges a compassionate approach to costs. Mr Wright does not dispute any of the particular cost items claimed by the defendant, though it is implicit he does not accept the second defendant’s claim for an uplift.

[5]    Three issues arise. The first is whether costs on the applications should be deferred. If I do not defer costs, the second issue is whether I should refuse or reduce the costs payable to the defendants, and the third issue is whether there should be any uplift on the second application.

Should costs be deferred?

[6]    The first general principle in r 14.2(1) of the High Court Rules 2016 is that the party who fails with respect to “a proceeding or an interlocutory application” should pay costs to the party who succeeds. In other words, the general principle is that costs on an interlocutory application follow the outcome of that application. They do not depend on the outcome of the substantive proceeding. As the Court of Appeal has

said, the merits of a particular application and the merits of the substantive proceeding are different matters.1

[7]    Not only do costs on an interlocutory application follow the outcome of the application, such costs will usually be fixed at the time the application is determined. Rule 14.8 provides in part:

14.8     Costs on interlocutory applications

(1)Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—

(a)must be fixed in accordance with these rules when the application is determined; and

(b)become payable when they are fixed.

…

[8]    There are rare cases where it is necessary to await the determination of the substantive issues in order to fix costs on an interlocutory application. This may occur, for example, where it is contended that costs should be reduced because the interests at stake were of exceptionally low value, and that contention can only be evaluated at trial.2 But even in such cases, it is merely the quantification of costs (not the question of which party should pay costs) that is deferred.

[9]    Mr Wright submits costs should be deferred because the trial will vindicate him and will place the defendants’ conduct in resisting proper disclosure in a poor light. He then expresses and explains his sincere belief that my judgment was wrong in several material respects.

[10]   I do not accept Mr Wright’s submission. The outcome of the two applications is clear: Mr Wright failed. The trial will be concerned with the merits of Mr Wright’s substantive claims. It will not address nor somehow alter the merits of these interlocutory applications. Quantification of costs on the applications does not depend on the outcome of the substantive proceeding. As to Mr Wright’s concerns with the

1      Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].

2      Craig v Social Media Consultants Ltd [2017] NZHC 1613 at [20].

correctness of my judgment, those were matters for him to pursue on an appeal. He has not applied for leave to appeal.

Should I refuse or reduce the costs payable to the defendants?

[11]   Mr Wright submitted that costs are often reduced or refused in Bill of Rights cases. He did not refer me to any authority to support his submission.

[12]   Costs in proceedings alleging breach of the Bill of Rights Act are subject to some special general principles.3 The leading authority on the point is the Court of Appeal decision in Attorney General v Udompun.4 This was a case where the plaintiff was largely successful on her substantive claim and the question of indemnity costs arose. The majority said:5

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 bringing BORA claims. This would clearly have the result of weakening BORA protections.

[13]   Those remarks were directed at a plaintiff who had established a breach of the Bill of Rights Act. They do not support Mr Wright’s proposition that where a plaintiff fails in a Bill of Rights proceeding, or fails on an application in such a proceeding, costs in favour of the successful party should be reduced or refused.

[14]   The incidence of costs for an unsuccessful plaintiff in a Bill of Rights claim was considered by Lang J in Blair v Attorney General.6 The appellant had brought an unsuccessful appeal against a decision of the District Court at Rotorua dismissing his claim for compensation under the Bill of Rights Act. The appellant contended the ordinary rules in relation to costs did not apply to claims under the Act. Lang J rejected this contention.

3      Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HRPt14.17(3)].

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

5 At [186].

6      Blair v Attorney General HC Rotorua CIV-2005-463-308, 16 February 2006.

[15]   Referring to Udompun, Lang J noted that the Court of Appeal was unanimous in finding the plaintiff entitled to indemnity costs but did not establish a general principle that unsuccessful parties would be exempted from paying costs. The Judge remarked that “each case will need to be considered on its facts … the successful party should still be entitled to expect an award of costs”, though in some circumstances that may not be the case.7

[16]   I agree. Whatever the merits of Mr Wright’s substantive claim, he failed on these two applications. The defendants’ success was emphatic. There is no basis for departing from the general principle that costs follow the event or for reducing those costs.

Should there be any uplift on the second application?

[17]   The second defendant seeks an uplift of 50 per cent on the second application. It says this uplift is warranted because of Mr Wright’s “duplicative and meritless application”. It relies on r 14.6(3)(b)(ii), which allows the Court to order increased costs if the unsuccessful party has contributed unnecessarily to the time or expense of the proceeding by “taking or pursuing an unnecessary step or an argument that lacks merit”.

[18]   I accept the second defendant’s claim for a 50 per cent uplift. I rejected Mr Wright’s r 8.38 application for multiple reasons. It lacked any merit whatsoever, and in large part Mr Wright was seeking to relitigate matters that had already been determined against him. Moreover, by bringing this meritless application Mr Wright contributed unnecessarily to the time and expense of the proceeding. This is because Mr Wright could have ventilated the same concerns through his first application.

Result

[19]   As noted, Mr Wright has not contested any of the individual cost items or disbursements. I find that all are appropriate.

7      At [14] and [15]. To the same effect is Neville v Attorney General of New Zealand [2016] NZHC 2797 at [5].

[20]Accordingly, Mr Wright is ordered to pay costs and disbursements totalling

$14,082 to the first defendant, and costs and disbursements totalling $17,956 to the second defendant.

Campbell J