WONG (AKA HUANG) V REGISTRAR AUCKLAND HIGH COURT AND ANOR HC AK CIV-2007-404-005292

WONG (AKA HUANG) V REGISTRAR AUCKLAND HIGH COURT AND ANOR HC AK CIV-2007-404- 005292 3 March 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2007-404-005292UNDER The New Zealand Bill of Rights Act 1990 BETWEEN ALEX KWONG WONG (AKA GANG HUANG) Applicant AND THE REGISTRAR OF THE AUCKLAND HIGH COURT First Respondent AND THE ATTORNEY-GENERAL Second Respondent Hearing: 29 January 2008 (On the Papers) Appearances: F C Deliu for the Applicant No Appearance for the First Respondent S E McKenzie for the Second Respondent Judgment: 3 March 2008JUDGMENT OF DUFFY J [Re Costs]This judgment was delivered by Justice Duffy on 3 March 2008 at 11.00 am, pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date:Solicitors: Equity Law P O Box 8333 Symonds Street Grafton Auckland for the Applicant Crown Law P O Box 2858 Wellington 6140 for the First and Second Respondents[1] This is a case where I refused an originating application seeking identification details of the panel of jurors who sat on the applicant's criminal trial in this Court. [2] The second respondent seeks costs at scale 2B on the ground the proceedings were of average complexity. Costs on this basis come to $8,640. There is also a disbursement of $90 for a Court filing fee. In total the costs and disbursements come to $8,730. No costs are sought by the first respondent who throughout the course of the proceeding has played no active part. [3] There is nothing remarkable about the quantum of costs sought. They are the usual costs for a civil fixture of this type. However, the applicant opposes an award of costs on this basis. [4] The applicant submits that I should distinguish this civil proceeding from other civil proceedings as it is a case where the applicant was acting to ensure his due process rights had not been violated rather than seeking to better his financial position. The applicant goes on to submit that persons wanting to exercise their rights under the New Zealand Bill of Rights Act 1990 should not do so in a "climate of fear under the further pain and penalty of a costs order". It is submitted that s 27 of the New Zealand Bill of Rights Act affords the right to justice and implicit in that is the right to free access to justice. A costs order is said to contravene that right. [5] It is then submitted that the proceeding acted as a de facto extension of the applicant's criminal trial in that it was analogous to a post-trial motion. Costs awards in criminal cases are said to be far less likely under the Costs in Criminal Cases Act 1967 in that there is no overriding principle as there is in civil cases that ordinarily costs follow the event: R v AB [1974] 2 NZLR 425, 433. Consequently, the applicant submits that the proceeding was civil in name only and as a quasi criminal proceeding a costs order should not be made. [6] The applicant refers to the costs regime that could be awarded under Part II of the Schedule of the Costs in Criminal Regulations 1987 and calculates that anappropriate award of costs at the daily rate of $226 per half day for 11 half days would be a total of $2,486.Civil or criminal proceeding?[7] I shall deal first with the applicant's submission that the proceeding was civil in name only. This issue is quite uncontroversial. In Mafart v Television New Zealand [2006] 3 NZLR 18 the Supreme Court was unequivocal in its position that a request for Court records under the Criminal Proceedings (Search of Court Records) Rules 1974 (SR1974/58) is a civil proceeding. The judgment of Elias CJ, Blanchard and McGrath JJ concluded at [40] that "an application for access to Court records, whether criminal or civil proceedings, is a civil proceeding." Tipping J, at [47], considered that the interests at stake in the search of court records will always be of a civil nature, and although a criminal backdrop may often be the case, the "substance of the necessary adjudication will be of a civil kind". [8] Further, at [39], Elias CJ states that proceedings regarding access to criminal files are to be properly regarded as a stand alone proceedings as they are brought under independent civil rights to apply for such information. Whether the underlying proceedings are civil or criminal is not determinative: [31]. [9] It follows that it would wrong for me to accept the applicant's submission that the proceeding he brought should be considered as a de facto extension to the criminal trial. The proceeding must be viewed as a civil proceeding.Departure from the scale?[10] The next question, therefore, is whether or not the proceeding has special characteristics that justify a departure from the usual approach to an award of costs in civil proceedings. [11] Analogous proceedings in which the appropriateness of an award of scale costs can arise are proceedings for judicial review, or proceedings under theDeclaratory Judgments Act 1908 or the New Zealand Bill of Rights Act 1990 (BORA). [12] In judicial review proceedings costs generally are applied at a 2B scale. The only deviation from this relates to the exception formulated by the Privy Council inNZ Mäori Council v A-G [1994] 1 NZLR 513; [1994] 1 All ER 623 (PC), 525-526; 636-638. In that case the Privy Council adopted a broader approach to costs than that which is normally applicable in private litigation, as the public interest involved in that case meant that the conventional regime was not applicable. The appellants' actions were seen as seeking to protect "part of the heritage of New Zealand" without any motive of personal gain. Also there was a "lack of clarity in an important area of the law which it was important that Their Lordships examine". For these reasons there was no order as to costs. [13] This public interest exception to the normal regime of costs in judicial review cases has been commented on subsequently in R (on the application of Smeaton) v Secretary of State for Health (costs) [2002] EWHC 866, and Prebble v Awatere Huata (2005) 17 PRNZ 581. [14] In Smeaton at [14] Mumby J drew from the Privy Council's decision in NZ Mäori Council v A-G two points of significance. In order for the public interest exception to apply the proceedings were not to be brought out of any motive of personal gain and there was to be a wider public interest. However, even in saying that, Mumby J at [17] rejected the notion:That there is some bright-line distinction between those judicial review cases which do and those which do not involve a public interest challenge, let alone that the determining factor in the award of costs is the presence or absence of some 'private interest' There will in the nature of things be differing degrees of public interest involved in different types of case.[15] In Awatere Huata the Supreme Court found that there was no general distinction between public law cases and other civil cases when it came to costs, saying at [5]:[i]n public law cases as well as in other civil litigation the rule that costs follow the result will generally be just between the parties.[16] In that case Mrs Awatere Huata relied on the reasoning in the NZ Mäori Council case to try to argue that her private interest in the litigation "was outweighed by 'the overwhelming public interest' in the interpretation and application of the legislation at issue" and that she had a duty to those who elected her to uphold her seat by all lawful means. [17] The Court found, at [5], that whatever public interest there was in Mrs Awatere Huata defending her case in the Supreme Court, because the case was initially litigated to protect her interests against a private organisation it was "far removed from the circumstances of NZ Mäori Council v A-G." [18] It appears, therefore, that while there is an exception to costs in judicial review proceedings for cases of public interest, that exception should only apply to something that is truly in the public interest and not merely to the public's benefit, such as the correct interpretation of a piece of legislation. It should also not arise out of a private interest.[19] The vast majority of cases that deal with issues under the Declaratory Judgments Act likewise award costs in the usual manner, and at the 2B scale. There is, however, the occasional exception to that rule. One such example is Attorney- General v Canwest Radioworks Ltd (No 2) HC AK CIV-2004-404-4596 20 December 2007. In that case Cooper J at [12] held that the case was a 'test case' and "raised an issue of considerable public importance". At [17] the Judge stated:In such cases, the resolution of costs issues has often been that costs should not be awarded to the successful party: see for example Securities Commission v Kiwi Co-operative Dairies Ltd [1995] 3 NZLR 26, at 36. It is true that such an approach finds no direct reflection in the High Court Rules concerning costs. However, r 48D provides that the Court may refuse to make an order for costs or may reduce the costs otherwise payable not only in the circumstances expressly listed at paragraphs (a) to (e), but also where: (f) Some other reason exists which justifies the Court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.[20] In Attorney-General v Udompun [2005] 3 NZLR 204 the Court of Appeal discussed the issue of costs with regard to a partially overturned Bill of Rights case. In that case Mrs Udompun had been refused entry to New Zealand on one occasionand detained after entering New Zealand on a second. She sought a remedy for breach of ss 27 and 23 of the BORA. The Court of Appeal declined to make an order for costs, and remitted the question of costs to the High Court to be determined in light of their judgment. Nonetheless the Court of Appeal did make some general observations on the issue of costs in Bill of Rights cases. Glazebrook J, at [186], stated that in the area of BORA claims "it may not always be appropriate to allow costs to follow the event." This is because:[a]pplying the normal costs rules in such circumstances may discourage litigants from bringing BORA claims. This would clearly have the result of weakening BORA protections.In that case, however, the Court of Appeal found, at [187], that it was "inappropriate for the Police to bear the costs of Mrs Udompun's unsuccessful claims against the Immigration Service".[21] Hammond J in Udompun wrote a separate but concurring judgement in which he discussed the issue of costs in Bill of Rights litigation. The Judge wrote at [222] that in such cases the Court is concerned with "upholding the 'inalienability' of certain kinds of BORA values. The allocation of costs should reflect that recognition". The Judge, at [223], further added that:In principle, BORA should not be watered down by leaving persons with no incentive or an inability to bring proceedings. This is because BORA places an affirmative obligation on the "judicial branches of the government of New Zealand" (s 3(a)) to "affirm, protect and promote" (preamble to BORA) the provisions of that enactment. An obligation of that strength is not discharged by the application of "usual" costs rules.[22] Finally, on this issue, Hammond J, at [224], referred to the apparent general trend in public law cases for Courts not to depart from the usual approach when making costs awards and stated that there was reason for a different approach in cases involving fundamental rights:There is some indication in the case law that, although, generally speaking, to date Courts have tended to assert that merely because litigation is of a "public interest" or "test case" variety that is not a licence to depart from the "usual" regime for costs, where there is a government (or government agency) involved in a case involving fundamental human rights, that may be a circumstance to alter the usual exercise of a costs discretion (see Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305, at p1315(PC) per LordSteyn and Nuredine v Minister of Immigration and Multicultural Affairs(1999) 91 FCR 138 at p145) [23] In Ahnee v Director of Public Prosecutions the Privy Council stated that because in that case "the real substance of the appeal concerned important matters of constitutional law, and that bona fide resort to rights under the Constitution ought not to be discouraged" there would be no order for costs. [24] From the review of the above cases the following principles emerge. First, the fact a claim raises public law issues will not of itself justify a departure from the usual approach to costs awards. Secondly, a departure from the usual approach will be justified in cases where the claim results in clarifying an important area of public law, and is one where the litigant has no personal interest at stake. Thirdly, BORA claims are somewhat different from other public law claims when it comes to costs awards in that a departure from the usual approach to costs awards may occur even though the claimant will usually have a personal interest at stake. The broad discretionary power in r 48D(f) provides the authority to implement an award of costs that follows these principles. [25] The reasons for treating BORA claims differently from other public law claims may be because BORA claims involve a different public interest. The public interest benefit of cases such as NZ Mäori Council v A-G and Attorney-General v Canwest Radioworks Ltd (No 2) is that they provide clarification on legal issues of considerable public importance. BORA claims may have this effect, but as well as this they serve another public interest and that is to strengthen and uphold respect for the rights the BORA guarantees. This is why the Courts recognise that costs regimes should not be permitted to discourage bona fide BORA claimants from bringing their claims. In this way the public interest in ensuring BORA rights are not weakened is met. [26] Although Mr Wong has not relied directly on Udompun, the thrust of his submission is to invite the Court to treat his proceeding as a legitimate exercise of his BORA rights and that an award of costs against him would be contrary to public policy.[27] The conclusion I reached that the juror information Mr Wong sought was not available to him was not one that was plainly apparent. It required construing the Juries Act as a whole, including the implicit meaning of ss 12 and 14. [28] The points Mr Wong made in his application under the Criminal Proceedings (Search of Court Records) Rules were worthy of consideration. Those rules do not explicitly preclude an application for juror information. This absence can be contrasted with rr 9(a) and 9(c) which expressly prohibits access to certain notes a Judge has personally made in a trial. Furthermore, recent statements regarding the accessibility of information, in general, under the Criminal Proceedings (Search of Court Records) Rules may have encouraged Mr Wong to think that the absence of an express prohibition on access to juror information in those Rules meant such information was available under them. There is also the ability of a Court, under s 76 of the Evidence Act 2006, to receive juror information extrinsic to jury room deliberations as well as in rare instances information intrinsic to jury room deliberations. Whilst those provisions create no right of access to jurors the existence of such provisions could well have encouraged Mr Wong to think that such rights were implicit in those provisions. [29] Mr Wong contended that access to the juror information he sought was part of his BORA rights, particularly those guaranteed by ss 24, 25 and 27. His argument was that he could not be sure he had enjoyed a fair and impartial trial, as guaranteed by BORA, until he had ascertained directly from the jurors who sat on his trial if they had become prejudiced against him as a result of the indignity one of their number suffered at the hands of an accused in another drugs trial. [30] The conclusion I reached was that his BORA rights under ss 24, 25 and 27 were in fact guaranteed and preserved by maintaining the confidentiality of juror information, including the identities of jurors. However, this conclusion was only reached after a careful consideration of case law on the topic. It may not have been readily apparent to Mr Wong that one of the means to ensure a jury acts in an impartial and independent manner is to preserve the secrecy of their identities.[31] There was no existing New Zealand case directly on point. Mr Wong's reliance on the BORA although unsuccessful, was worthy of consideration. The point he raised was novel and untested. It was not without support in that other jurisdictions do permit some access to jurors for the purpose of inquiring if there were matters extrinsic to their deliberations that affected their impartiality: seeStruski v Big Y Foods Inc, No CV9701371085, 2000 WL 1429478, at *1, 2 (Conn. Super. Ct. Sept 11, 2000). Glazebrook J in Udompun has recognised that if litigants are discouraged from bringing BORA claims this could result in weakening BORA protections. In Mr Wong's case the BORA claim was made bona fide and raised points that were worthy of consideration. It raised a novel and untested point. In addition, the proceeding has helped to clarify the scope of juror confidentiality. This outcome has a general public benefit. [32] For all of the above reasons I consider that a departure from the usual approach to costs is justified. I consider there should be a reduction of the scale 2B costs award. [33] At the same time I consider that the second respondent should receive some award of costs to signify its success and the cost it has incurred in defending the application. In the present case I consider that a reduction of the scale 2B costs by 50% represents an outcome that balances the concerns recognised in Udompun with the general rule that costs are awarded to the successful party and that costs determinations should be predictable and expeditious.Result[34] The second respondent is awarded $4,320.00 costs and disbursements of $90. Duffy J