Wright v Attorney-General
[2020] NZHC 1166
•29 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2800
[2020] NZHC 1166
UNDER the New Zealand Bill of Rights Act 1990 BETWEEN
NICHOLAS DAVID WRIGHT
Plaintiff
AND
THE ATTORNEY-GENERAL, AS REPRESENTATIVE OF THE NEW ZEALAND POLICE
First Defendant
AUCKLAND DISTRICT HEALTH BOARD
Second Defendant
Hearing: On the papers Appearances:
Plaintiff in person
W R Potter and B Rorrison for the First Defendant
A M Adams and H H Ifwersen for the Second DefendantJudgment:
29 May 2020
JUDGMENT OF GAULT J
(Costs)
This judgment was delivered by me on 29 May 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors:
The Plaintiff
Mr W R Potter and Ms B Rorrison, Meredith Connell, Office of the Crown Solicitor, Auckland Ms A M Adams and Ms H H Ifwersen, Meredith Connell, Office of the Crown Solicitor, Auckland
WRIGHT v THE ATTORNEY-GENERAL [2020] NZHC 1166 [29 May 2020]
[1] In my judgment of 21 November 2019, I dismissed each defendant’s application for review of Associate Judge Bell’s decision in relation to security for costs.1 As I observed, I expected that as the plaintiff (Mr Wright) is self-represented there would be no issue as to costs.
The issues raised
[2] There was a delay before Mr Wright received the judgment, following which he filed a memorandum in relation to costs (and other matters). In essence, he stated that the parties had spent nearly six days of hearing time over a three year period addressing the Court on matters relating to security. He referred again to his submission that the unsuccessful security applications represented an attempt by the defendants to abuse the processes of the Court, by attempting to “bully” him into withdrawing these proceedings, and to drain the very limited resources available to him. He complained that he has been faced with a constant and one-sided threat of costs and has had costs awards unjustifiably made against him. As a self-litigant, he is unable to seek costs for what he describes as the outrageous actions of the Crown in pursuing its blinkered and abusive litigation strategy. He submitted this one-sided use of costs as an instrument of oppression, attempted denial of justice, and unjustifiable delay has been consistently indulged by the Court, notwithstanding the fact that the processes have been applied in denial of natural justice and therefore in direct breach of the New Zealand Bill of Rights Act 1990 (NZBORA). He also referred to the United Nations Covenant on Civil and Political Rights. He submitted that, by entertaining the defendants’ applications, and delaying justice in this matter for over three years, the Court has made itself complicit in this breach.
[3] Mr Wright seeks to have the Court lay down clear and unambiguous guidelines regarding the Crown’s use of security for costs against self-litigants, particularly in NZBORA cases, submitting there is an imbalance in power between the parties and inherent inequality before the law when one party can seek costs against the other, but no balanced remedy is available the other way. He submitted it is unconscionable for the Crown’s actions to be left uncommented upon by the Court.
1 Wright v Attorney-General [2019] NZHC 3046.
[4] Mr Wright further submitted that, failing any willingness on the part of the Court to provide a special category of costs awards to self-litigants, the Court should at the very least issue a stay of existing costs orders obtained by the Crown against him. The Court should also order that the Crown pay the Court’s costs as future warning against abusive practices on the part of the Crown in proceedings such as this.
[5] Mr Wright submitted that the Court should receive full oral argument and undertake a full review of the conduct of this litigation by the Crown in these proceedings so far, repeating his submission that the Crown is guilty on its face of abusing the processes of the Court in this case.
[6] Counsel for the first and second defendants each filed a memorandum responding substantively to these various allegations.
[7] As I indicated in my minute of 26 May 2020, I will address Mr Wright’s submissions in relation to costs (but not otherwise). A hearing is not required. My role is to determine the issue of costs in relation to the defendants’ unsuccessful applications. I am in no position to review other costs orders already made in this proceeding or to review the conduct of this litigation by the Crown, other than in respect of the applications that I determined.
Discussion
[8] As Mr Wright appreciates, the general principle that costs follow the event does not apply to successful lay litigants in this Court. As the Court of Appeal has recently observed:2
(a)The High Court’s costs regime is prescribed by the High Court Rules 2016. Those rules are underpinned by the “general principles” that the unsuccessful party shall pay costs to the successful party and that the rules provide a predictable, consistent and expedient method of determining costs.3
(b)The Supreme Court has explained that it is a “primary rule” that a lay litigant in New Zealand is not entitled to recover costs against an unsuccessful party.4 While the Supreme Court left open the issue as
2 Ward v Lochore [2020] NZCA 23 at [9].
3 High Court Rules 2016, rr 14.2(a) and (g).
4 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55].
to whether or not it is possible for the primary rule to be departed from in exceptional circumstances, the longstanding practice in New Zealand is that successful lay litigants are not entitled to costs.
[9] Accordingly, there is no basis for complaint that the “primary rule” concerning costs somehow undermines the principle of equity before the law.5 No issues of judicial discrimination, breach of NZBORA or breach of international conventions arise.
[10] There is an exception to this “primary rule” such that a litigant in person who is also a lawyer can recover costs but Mr Wright does not rely on this exception – I understand he is no longer a practising lawyer.
[11] I therefore decline Mr Wright’s request to provide a special category of costs awards to self-litigants.
[12] No doubt appreciating this position, Mr Wright submitted in the alternative that the Court should issue a stay of existing costs orders obtained by the Crown against him. As I have indicated, I am in no position to review other costs orders already made in this proceeding. The most I could do would be to stay or vary those orders if, notwithstanding the appellate authorities, there were some basis to take into account the one-sided nature of cost awards in a case involving a lay litigant. Associate Judge Bell raised the possibility of credits when commenting on costs in his judgment on the application for security, stating:6
I set out provisional views on costs, but invite submissions. Mr Wright cannot obtain any order for costs against the district health board except disbursements, as he does not have legal representation. At the same time his success might be recognised by giving him a credit against any future costs orders that might be made against him. Mr Wright and the police have had divided success. Should costs lie where they fall?
[13] No submissions were received – it seems costs were overtaken by the applications for review of his decision. However, in relation to the suggestion of a credit, the Auckland District Health Board (DHB) responsibly conceded that it is
5 Ward v Lochore [2020] NZCA 23 at [12].
6 Wright v Attorney-General [2019] NZHC 59 at [133]. See also his earlier minute dated 9 December 2016.
appropriate for Mr Wright to receive a credit for his costs associated with the DHB’s unsuccessful application for security for costs, which would be applied to offset some of the $10,546.33 that Mr Wright was ordered to pay the DHB on 22 November 2017. The DHB’s calculation of 2B costs for its security application and review application is $18,403. The DHB submitted the credit should be quantified on the basis of a 75 per cent reduction from 2B scale costs to reflect Mr Wright’s status as a litigant in person, and his poor litigation conduct. 25 per cent is approximately $4,600.
[14] I am attracted to the pragmatic suggestion of a credit provided it is consistent with the Supreme Court’s decision in McGuire.7 Rather than determining credits as such against any future costs, I consider the preferred approach is to acknowledge interlocutory successes so that they may be taken into account if and when costs are finally determined in the proceeding and any final award of costs against a lay litigant may be reduced as appropriate to reflect such interlocutory success. That may not be a mathematical exercise. An alternative would be to reserve costs on interlocutory applications in a case such as this on the basis of special reasons,8 but I consider it preferable for the relevant judge to assess the success at the time of the interlocutory application rather than leave the trial judge to investigate it well after the event. I consider a more mathematical credit that is derived from scale costs cannot survive the Supreme Court’s decision in McGuire. That is because, while acknowledging the public policy justifications for the “primary rule” are distinctly contestable, the Supreme Court said:9
The practice of awarding costs against a losing party disincentivises potential litigants and thus inhibits access to the courts. Confining costs to those relating to the work carried out by lawyers limits that inhibiting effect. This provides a reasonable basis for not allowing represented litigants to recover costs in respect of their own time and trouble. Mechanisms for fixing costs are calibrated to the assessment of the work which lawyers carry out, as opposed to work carried out by, or the opportunity costs of, litigants in person.
[15] For these reasons, I consider a mathematical credit derived from scale would in effect be an offsetting award of costs in favour of a lay litigant in breach of the “primary rule”. I therefore decline to quantify a costs credit in favour of Mr Wright.
7 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.
8 Rule 14.8.
9 McGuire v Secretary for Justice at [82].
[16] However, I record my view in relation to the outcome of the relevant applications so it can be taken into account if and when costs are finally determined in the proceeding to the extent the Judge considers appropriate. Also, in the interests of finality, it is appropriate for me to fix costs in relation to the application for security before Associate Judge Bell, which were overtaken by the review application, as well as the preliminary hearing before Jagose J, which were reserved, and the review application before me.
[17] In relation to the DHB, its credit concession acknowledges that costs would follow the event but for the fact Mr Wright is a self-represented litigant. I note the DHB’s calculation of 2B scale costs of $18,403 does not appear to include any steps for the preliminary hearing before Jagose J. I consider that is appropriate and the costs of that preliminary hearing should lie where they fall. I would not quantify the costs of the two applications on the basis of a 75 per cent reduction from 2B scale costs to reflect Mr Wright’s status as a litigant in person – for essentially the reasons already given in relation to mathematical credits. There is no proper basis for such a reduction in the High Court Rules or in principle. Also, I would not reduce the quantum on the basis of Mr Wright’s litigation conduct earlier in the proceeding. That should already have been addressed in any earlier cost award made against him. My view is that as Mr Wright succeeded in opposing the DHB’s applications for security and for review, but for the “primary rule”, he would have been entitled to costs from the DHB on each application. If he had been represented, 2B scale costs would have been
$18,403 (as calculated by the DHB).
[18] In relation to the first defendant, costs should not be assessed by conflating the original application for security with the application for review and describing the applications “overall” as achieving mixed success. The application for security before Associate Judge Bell was partially successful. Costs should lie where they fall. The application for review was unsuccessful. My view is that, but for the “primary rule”, Mr Wright would have been costs entitled to costs from the first defendant on that application. If he had been represented, 2B scale costs would have been $6,214.
[19] At this stage, I am not prepared to grant a stay of earlier interlocutory cost awards but in the circumstances of this case I reserve leave for Mr Wright to apply
should enforcement of those awards become an issue before costs are finally determined.
[20] Finally, Mr Wright submitted that the Court should order that the Crown pay the Court’s costs as future warning against abusive practices on the part of the Crown in proceedings such as this. Even if it were appropriate to review the conduct of the defendants beyond the applications relating to security, the costs regime does not extend to ordering parties to pay the Court’s costs.
Result
[21] There is no order as to costs in relation to either the defendants’ applications for security before Associate Judge Bell, or their applications for review of the Associate Judge’s decision (including the preliminary hearing before Jagose J).
Gault J
4
1