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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wright v Attorney-General

Details

AGLC: Wright v Attorney-General [2021] NZHC 2101
Case: [2021] NZHC 2101
Decision Date: 12 August 2021

CaseChat Overview and Summary

In Wright v Attorney-General, the plaintiff sought to challenge the refusal of interrogatories by the defendants. The court dismissed the plaintiff's applications, and the defendants sought costs against the plaintiff. The court considered whether costs should be deferred, whether they should be reduced or refused, and whether there should be an uplift on the second application. The court found that costs should not be deferred, as the outcome of the interlocutory applications was clear and did not depend on the outcome of the substantive proceeding. The court also found that costs should not be reduced or refused, as the general principle is that costs follow the event, and the plaintiff had failed on both applications. Finally, the court found that there should be a 50 per cent uplift on the second application, as the plaintiff had taken an unnecessary step and pursued an argument that lacked merit.

The court's reasoning was grounded in the principles of costs in interlocutory applications and the exceptional circumstances required to defer costs. The court noted that costs on interlocutory applications usually follow the outcome of the application and are fixed at the time the application is determined. The court found that there were no exceptional circumstances in this case that warranted deferring costs. The court also noted that the plaintiff's concerns with the correctness of the court's judgment were matters for him to pursue on an appeal, and he had not applied for leave to appeal.

The court further found that the general principle that costs follow the event should not be departed from, even in cases where the plaintiff alleges a breach of the New Zealand Bill of Rights Act 1990. The court noted that the Court of Appeal had considered the incidence of costs for an unsuccessful plaintiff in a Bill of Rights claim and found that the successful party should still be entitled to expect an award of costs, though in some circumstances that may not be the case.

Finally, the court found that there should be a 50 per cent uplift on the second application, as the plaintiff had taken an unnecessary step and pursued an argument that lacked merit. The court noted that the second defendant's application was duplicative and meritless, and the plaintiff had contributed unnecessarily to the time and expense of the proceeding.

In conclusion, the court ordered the plaintiff to pay costs and disbursements totalling $14,082 to the first defendant, and costs and disbursements totalling $17,956 to the second defendant, with a 50 per cent uplift on the second application. The court found that the defendants' success was emphatic, and there was no basis for departing from the general principle that costs follow the event or for reducing those costs. The court also found that the plaintiff had not contested any of the individual cost items or disbursements, and all were appropriate.

Orders