PRESCOTT v NEW ZEALAND POLICE [2020] NZHC 847

PRESCOTT v NEW ZEALAND POLICE [2020] NZHC 847 [30 April 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-2164[2020] NZHC 847BETWEEN PETER RICHARD PRESCOTTAppellantAND NEW ZEALAND POLICEFirst RespondentDISTRICT COURT AT AUCKLANDSecond RespondentCIV-2016-404-2259IN THE MATTER of the unlawful arrest and violation of theApplicant's rightsBETWEEN PETER RICHARD PRESCOTTApplicantAND NEW ZEALAND POLICERespondentHearing: On the papersAppearances: Appellant/Applicant in person in both proceedingsA F Todd for the Respondent(s) in both proceedingsJudgment: 30 April 2020JUDGMENT OF GAULT J(Costs)This judgment was delivered by me on 30 April 2020 at 11:30 ampursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy Registrar[1] Following my judgment dated 18 December 2019 dismissing Mr Prescott'sappeal and application for judicial review,1 the parties have filed memoranda as tocosts. The parties are agreed that the costs of the High Court proceedings (appeal andjudicial review) are to lie where they fall. However, the parties disagree as to the costsawarded in the District Court.[2] The respondent seeks confirmation that the costs order made in the DistrictCourt stands, in the interests of finality. The District Court awarded the respondentcosts and disbursements on a 2B basis in the sum of $27,111.02. The respondent seeksmy confirmation given familiarity with the matter.[3] Mr Prescott submits that costs in the District Court should also lie where theyfall on the basis that costs are seldom awarded in genuine Bill of Rights cases.Discussion[4] Ordinarily, an issue as to costs in the Court under appeal would not arise wherethe appeal has been dismissed. While costs in the Court under appeal are often bestleft to that Court to revisit in light of the appellate Court's judgment, I accept in thiscase the parties seek my determination on the basis that the same issue arises, namelycosts in a case involving the application of NZBORA.[5] In my judgment of 18 December 2019, I said in relation to costs:[113] Costs ordinarily follow the result. The respondents have succeededbut, at least in relation to the arrest appeal, on grounds not raised in the DistrictCourt. Also, the Courts have acknowledged that it may not always beappropriate to allow costs to follow the event in cases involving theapplication of NZBORA because the normal costs rules may discouragelitigants from bringing NZBORA claims.2 It is unlikely that costs will beawarded against an unsuccessful plaintiff if a NZBORA claim is bona fide andis found to have had some merit even though unsuccessful, especially if theplaintiff sought no more than a vindication of rights, and the conduct of thecase did not warrant an adverse costs order.3 I record my view that thelawfulness of the arrest issue did have merit.1 Prescott v Police [2019] NZHC 3376.2 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186] and [224].3 At [186]; and Dotcom v Twentieth Century Fox Film Corporation [2018] NZHC 299 at [5].[6] I accept that in the unusual circumstances of this case my observations as tocosts apply equally to costs in the District Court. Therefore, despite the fact thatMr Prescott's civil claim was dismissed, and his appeal and application for judicialreview were dismissed, I consider he was pursuing a bona fide NZBORA claim, theissue of the lawfulness of his arrest did have merit and the conduct of his case did notwarrant an adverse costs order. The arrest was lawful but on grounds not raised in theDistrict Court.[7] The District Court Judge may well have been justified in awarding costs inrespect of other parts of Mr Prescott's claim on the basis that they lacked merit but, asin this Court, I expect they were secondary and took up relatively little time and I amnot in a position to split them out. As the respondent sought finality in this Court,I consider it appropriate to order that costs in the District Court also lie where they fallrather than refer this secondary issue back to the District Court Judge.________________________________Gault JParties / Solicitors:The ApplicantMs A F Todd, Crown Law, Wellington