THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CHISNALL [2016] NZHC 1348

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CHISNALL [2016] NZHC 1348 [21 June 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-756[2016] NZHC 1348UNDER the Public Safety (Public ProtectionOrders) Act 2014 and the Parole Act 2002IN THE MATTER of an application for a public protectionorder or an extended supervision orderBETWEEN THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND MARK DAVID CHISNALLRespondentHearing: On the PapersCounsel: J Murdoch and S Wilson for ApplicantT Ellis and G Edgeler for RespondentD J Perkins for Attorney-GeneralJudgment: 21 June 2016JUDGMENT (No.2) OF FOGARTY J ON COSTSThis judgment was delivered by Justice Fogarty on21 June 2016 at 4.30 p.m., pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Meredith Connell, Crown Solicitors, AucklandCrown Law Office, WellingtonT Ellis, Wellington[1] I refer to the judgment of this Court dated 26 April 2016.1 That judgment resolved an application by the Chief Executive for the Department of Corrections, under s 107 of the PSA2 for interim detention of the respondent from the date of his release 27 April 2016 until the originating applications for a Public Protection Order (PPO) or, in the alternative, an Extended Supervision Order (ESO)3 be resolved.[2] In the first instance the Chief Executive sought interim detention of the respondent at Paremoremo Prison where he was then held. Alternatively, the Chief Executive sought interim detention at an interim detention facility on ChristchurchMens' Prison land, being a four bedroom villa located within the perimeter fence of the prison.[3] The application for interim detention was opposed. There were essentially two issues:(a) First, whether or not an interim detention order should be made; and(b) Second, if so, whether Mr Chisnall be detained at Paremoremo Prison or in the villa.[4] It is material to note immediately that both issues were sufficient to warrant the argument before the Court on 13 May. The Chief Executive abandoned the request for detention in Paremoremo Prison in the course of argument. This was a sensible abandonment, but was prompted by dialogue between the Bench and counsel. Counsel abandoned the point when it became apparent that I saw significant problems with continuing to incarcerate Mr Chisnall beyond the expiry of his sentence. This is not within the purpose of the Act. See s 4(2):4 Objective of Act(1) (2) It is not an objective of this Act to punish persons against whom orders are made under this Act.1 Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 796.2 Public Safety (Public Protection Orders) Act 2014. (Hereafter PSA).3 Parole Act 2002, Part 1A.And s 5(d):5 PrinciplesEvery person or court exercising a power under this Act must have regard to the following principles:(a) (b) (c) (d) persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.And s 85(1) and (2):85 Order for detention in prison(1) The court may, on the application of the chief executive, order that a person subject to a public protection order be detained in a prison instead of a residence.(2) The court may make an order under subsection (1) only if satisfied that—(a) the person would, if detained or further detained in a residence, pose such an unacceptably high risk to himself or herself or to others, or to both, that the person cannot be safely managed in the residence; and(b) all less restrictive options for controlling the behaviour of the person have been considered and any appropriate options have been tried.(3) (4) [5] The Chief Executive succeeded, however, in obtaining the interim order for continued detention at the villa.[6] Counsel for Mr Chisnall now seek costs. Mr Chisnall has not sought legal aid in respect of the application for the PPO, but intends to seek legal aid for the application for the ESO, when that is filed. Costs are sought on the basis that theChief Executive's application is, by statute, treated as a civil proceeding so that thegeneral principles relating to costs in civil proceedings apply. These principles include that the costs usually follow the event and that partial success is sufficient for some costs to be recovered.[7] The assumption of counsel for Mr Chisnall is that an application for a PPO is a civil proceeding relies on clues in the statute, as s 8 of the PSA simply provides that the Chief Executive may apply to the Court for a PPO.4[8] At the time of enactment of the PSA the Legal Services Act 2011 was amended. The amendment was to s 4, the interpretation section,to include in thedefinition of "specified application" an additional clause (c)(a) which provides:Specified application means an application for legal aid made –(ca) by a person who is a respondent to an application under thePublic Safety (Public Protection Orders) Act 2014 [9] Sections 6 and 7 of the Legal Services Act distinguishes between legal aid being granted for criminal matters and legal aid being granted for civil matters. But the distinction between criminal proceedings and civil proceedings are not clarified. In particular, there is no further reference to sub-paragraph (ca) in the Act. This is in contradistinction to subsequent references to sub-clauses in the definition of"specified application". For example, the "specified application" includes applications in respect of certain proceedings before the Waitangi Tribunal or under the Mental Health Act, and in subsequent sections of the Legal Services Act these matters are dealt with specifically. For a specific example, s 47 dealing with applications in respect of proceedings before the Waitangi Tribunal can be cross- referred back to paragraph (a) of the definition of "specified application" in s 4.[10] What is clear, however, is that Parliament intended that persons subject to applications under the PSA for PPOs be entitled to legal aid. Counsel for Mr Chisnall have, however, not applied for legal aid. Apparently they intend to apply for legal aid in respect of the ESO but not in respect of the PPO. It is in the absence of any application for legal aid that counsel are now applying orders for costs under4 Section 8(1).the High Court Rules on the basis that they have successfully opposed an interlocutory application by the Chief Executive.[11] An order for costs against the Chief Executive is opposed. The Chief Executive argues that he has substantially succeeded in the application for an interim order and that this would normally merit costs in his favour, not the respondents. Counsel for the Chief Executive argue that the Chief Executive should obtain costs, having successfully obtained an interim detention order or, in the alternative, that each side being partially successful, it is appropriate for costs to lie where they fall.[12] Part of the problem in this analysis of the costs dispute is that the ChiefExecutive's application for a PPO is intituled as a civil proceeding, whereas his application for an ESO is intituled as a criminal proceeding. In Minute No.1, dated 13 May 2016, I had some occasion to examine a suggestion by counsel for Mr Chisnall raising the question of whether this case should continue to be categorised with a civil proceeding number rather than a criminal number. The examination was mainly in the context of burdens of proof and standards of proof. Essentially the minute proceeds on the basis that the proceedings are unusual and there is doubt as to whether they are civil or criminal. See paragraph [19] of the minute.5 They may simply be approached as sui generis.[13] Assuming the High Court Rules on costs apply, on general principles, they favour Mr Chisnall on the grounds that he was partially successful in opposing the application. The partial success, however, was a very important success as it resulted in Mr Chisnall being removed from being a prison inmate in Paremoremo Prison to the quite different status of being a resident in the villa.[14] As already discussed, the Chief Executive did abandon the application to retain Mr Chisnall in Paremoremo Prison, but only after argument before the Court had identified significant difficulty in pursuing continued incarceration in a highsecurity prison pursuant to a PPO. That was a sufficient "win" for Mr Chisnall towarrant the net result of being an order for costs.5 Chief Executive of the Department of Corrections v Chisnall HC Auckland CIV-2016-404-756, 13 May 2016.[15] In normal circumstances one would expect an application for legal aid under Legal Services Act 2011 to cover both the PPO and the ESO, as the norm is that offenders such as Mr Chisnall are unlikely to have significant assets to afford the cost of litigation such as this.[16] I am uneasy about making an order as to costs at this stage without hearing further from counsel for both parties. I have deliberately made a finding that Mr Chisnall was sufficiently successful to obtain an order for costs on an interlocutory basis if the High Court Rules on costs apply. But I am not yet satisfied that it was the intention of Parliament that the Chief Executive's applications for interim orders pending the determination of a PPO application were intended to be civil proceedings, so that the High Court Rules on costs apply.[17] Accordingly, the application for costs is adjourned pending further submissions from counsel for the parties.