MCDONALD v THE DISTRICT COURT AT CHRISTCHURCH [2021] NZHC 1289

MCDONALD v THE DISTRICT COURT AT CHRISTCHURCH [2021] NZHC 1289 [2 June 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-000240[2021] NZHC 1289BETWEEN CRAIG LEE MCDONALDApplicantAND THE DISTRICT COURT ATCHRISTCHURCHRespondentHearing: On the papersAppearances: A J Bailey for ApplicantD L Harris for RespondentJudgment: 2 June 2021JUDGMENT OF DUNNINGHAM JRE: COSTS DECISIONThis judgment was delivered by me on 2 June 2021 at 3.30 pm, pursuant to r 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:[1] On 9 March 2021 I gave a decision declaring directions made by theDistrict Court requiring all unopposed bail applications on family violence charges tobe decided by judicial officers only, were unlawful. I reserved the issue of costs. I amnow in receipt of costs memoranda, with the applicant seeking 2B costs, and therespondent opposing any award of costs.The applicant's submissions[2] The primary reason the applicant considers costs are appropriate is because therespondent took what Mr Bailey describes as "an active and substantive adversarialrole in attempting to oppose the applicant's review". In support of that submissionMr Bailey says:(a) the respondent never filed a notice saying it would abide the decisionof the Court;(b) the respondent sought, and was given, leave to provide the Court "withcontext and background to the directives and general principles of theDistrict Court's jurisdiction and process";(c) at its own initiative, the respondent filed 12 pages of submissions instrong opposition to the applicant's claims;(d) the respondent advanced affirmative defences to the applicant's claimbeing:(i) that the Chief District Court Judge had powers to curtail thepowers of Registrars in respect of family violence bailproceedings; and(ii) the Chief District Court Judge, at the relevant time, did exercisesuch powers.In Mr Bailey's submissions these were unmeritorious defences.[3] Mr Bailey also says that the respondent chose not to provide an affidavit fromthe purported decision maker, the then Chief District Court Judge, which preventedthe Court from being provided the best evidence. As a result, the applicant says therespondent "entered into the fray" rather than, as is the usual case, allowing thedecision to "speak for itself".1 In support of this submission Mr Bailey refers to theSupreme Court in Environmental Defence Society Inc v New Zealand King Salmon CoLtd, where the Supreme Court said:2[13] In rare cases a decision maker may be of assistance, for example,where there is a need for a contradictor or where it is important that the Courthave a wider perspective than the parties may be able to provide. If a decisionmaker does appear, it should as far as possible act in a non-partisan fashion.In this case, Mr Bailey notes the Court never appointed a contradictor, nor did itrequest that the respondent take such a role, and in his submission, the respondent didnot act in an appropriately non-partisan fashion.[4] As a further ground for costs, Mr Bailey says it appears that Crown Law wasprimarily instructed by the Ministry of Justice rather than the District Court. Forexample, when proposed hearing dates were being discussed, Crown Law indicated"the proposed date is not convenient for the Ministry". Furthermore, one of theMinistry's Registrars filed a detailed affidavit on behalf of the respondent. Mr Baileysays the Ministry could, without difficulty, have been a second respondent in thisjudicial review, noting it played a role in the decision by instructing its Registrars notto deal with family violence bail matters, and this showed a lack of understanding ofthe separation between the Court itself and the Ministry.[5] Finally, in his reply memorandum, Mr Bailey notes that the filing of an appealby the respondent reinforces his submission that it has taken an adversarial andpartisan position, which has now forced the applicant to defend proceedings in theCourt of Appeal.[6] In addition, he says the appeal indicates a further ground for seeking costs.This is because the respondent has sought that a full Court hear its appeal on thegrounds it raises issues of constitutional importance, including as to the independenceof the judiciary, and the relationship between Judges and Registrars.1 Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27].2 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 41, [2014]1 NZLR 717 (footnote omitted).[7] In summary, given the respondent's active opposition to the applicant's claim,this is a case where it is appropriate to make an award of costs against the DistrictCourt, as the unsuccessful party.The respondent's submissions[8] The respondent opposes an award of costs. It points out that it offered to filesubmissions and evidence to provide background to the Family Violence Bail ReportPilot and to the District Court's jurisdiction and process, and to file a statement ofdefence to clarify the factual basis giving rise to the proceedings as it did in Owen vDistrict Court at Invercargill.3 It is clear the High Court accepted these proposalswould be useful and specifically asked that the respondent address the following threematters:4(a) Does the respondent accept that the first and second directives (asdefined in the statement of claim) were issued?(b) If so, does the respondent accept that it issued these directives?(c) Was there jurisdiction for the first and second directives to have beenmade?[9] The respondent's submissions go on to note that while I held the District Courtacted unlawfully in directing that Registrars were not to determine bail on unopposedfamily violence charges, I did not consider the directions met the threshold for beingstruck down as unreasonable. Instead, I said that, but for the illegality identified, "theyare manifestly reasonable for the reasons set out in Judge Walker's affidavit".5[10] Ms Harris submits that there is no basis, as the applicant suggests, forcriticising the steps taken by the District Court in this proceeding. It sought the priorapproval of the Court for its participation in the proceedings. It did no more than whatwas contemplated in advance by filing submissions and affidavits to explain thegenesis of the directions and the administrative arrangements which effected the3 Owen v District Court at Invercargill [2017] NZHC 1105, [2018] NZAR 525.4 McDonald v District Court at Christchurch HC Christchurch CIV-2020-409-240, 27 July 2020 at[4].5 McDonald v District Court at Christchurch [2021] NZHC 446 at [48].directions. Counsel only spoke to the relevant jurisdictional points. The applicant'spersonal circumstances were never put in issue.[11] Ms Harris rejects the suggestion that the District Court advanced unmeritoriousdefences and notes that the decision has been appealed to the Court of Appeal. Shealso rejects the criticism for failing to present an affidavit from the then Chief DistrictCourt Judge. She submits the evidence from Judge John Walker stating that he wastasked with the introduction of a pilot by the then Chief District Court Judge, wassufficient, and my findings regarding the delegation have been appealed.[12] Ms Harris points out the fact counsel was instructed to represent the DistrictCourt through the Ministry of Justice was not inappropriate as suggested by theapplicant. That submission misunderstands the role the Ministry of Justice plays inproviding support to the judiciary. In short, the respondent rejects any criticism of therole it played in opposing the application.[13] In any event, Ms Harris submits that where an application is brought against ajudicial officer or judicial body, there is normally a requirement to show that therelevant judge acted perversely, oppressively or in bad faith before costs will beawarded. For example, in the Court of Appeal's decision in Coroner's Court v Newton,that Court held that costs will only be awarded (even in judicial review proceedings)against a judicial officer or body:6 in the rarest of circumstances when such a judicial officer has donesomething which calls for strong disapproval. It is certainly not the practiceto grant costs against Justices merely because that person has made amistake in law. It must be shown that the judicial officer concerned has actedperversely, oppressively or in bad faith.[14] In the respondent's submission, the question is not whether the applicant isdeserving of costs, but whether an order for costs is necessary to express disapprovalof the conduct of the judicial officer, saying the Newton decision sets "a high bar". Inthis case, Ms Harris submits that any errors by the District Court do not fall into therare category which calls for disapproval by this Court in the form of an order for6 Coroner's Court v Newton [2006] NZAR 312 (CA) at [44].costs. The errors identified in my decision were those of law and process only, andthere were no findings of perverse or oppressive conduct or bad faith.[15] In the alternative, if an award of costs is warranted, then it should be referencedto the amount considered required to express disapproval of the judicial officer'sconduct, rather than to ensure the successful party receives "a reasonable contributionto costs actually and reasonably incurred".7Discussion[16] This case has clear parallels with the decision in N v District Court ofNew Zealand sitting at Gisborne.8 In that case, a District Court Judge becameconcerned that a lawyer had misled him about the status of a bail application. Becauseof those concerns he initiated what he termed an abuse of process and contempt inquiryin relation to the lawyer's conduct. However, in the course of the judicial reviewproceedings, the lawyer was successful in obtaining orders setting aside the Judge'sdirections and ending the proposed inquiry. The lawyer sought costs on a 2B basisagainst the District Court on grounds similar to those raised in the present case, beingthat the respondent took an adversarial approach, but was ultimately unsuccessful.The respondent opposed the grant of costs relying, as here, on the principles in theNewton decision.9[17] In N v District Court, Mallon J accepted that aspects of the respondent'ssubmissions engaged directly with the issues on review and supported the Judgehaving the jurisdiction he purported to exercise, rather than adopting a neutral stance.Nevertheless, she reached the following conclusion:[9] Looked at overall, however, the sole purpose of the submissions wasto assist the Court in a difficult case where there was no contradictor. Thecase called into question aspects of the District Court's jurisdiction procedure,including the limits of the Court's implied powers to uphold the administrationof justice. I was assisted by Crown Law's submissions, both those thataddressed the general principles without reference to the particular conduct atissue, and those that presented arguments for why the Court might find theJudge had the power to proceed as he did.7 Green v Police [2019] NZHC 1019 at [12].8 N v District Court of New Zealand sitting at Gisborne [2020] NZHC 252.9 Coroner's Court v Newton, above n 6.[18] Mallon J then considered whether costs should be ordered on some otherground. Mallon J expressed sympathy for the applicant, noting the Judge proceededon an erroneous factual basis, leaving the applicant with little option but to commencethe judicial review proceeding in which she prevailed, and so she was "deserving ofan award of costs in this sense".10 However, Mallon J concluded that being deservingof costs is not enough. In that case, the Judge had "genuine, albeit misguidedconcerns"11 but Mallon J concluded that "a costs order to express disapproval of thejudicial officer's conduct [was] not required here".12[19] Despite the applicant's submissions in this case, I can find no reason to differfrom Mallon J's conclusions in N v District Court. Here, the respondent onlyparticipated with the consent and encouragement of the High Court Judge who casemanaged the proceedings. Had the District Court not participated in this way, it wouldhave been necessary to appoint a contradictor who would have needed to put the sameinformation before the Court regarding the reasons for making the directions at issue.Thus, while the respondent was actively involved in defending the proceedings thatwas appropriate in the circumstances of the case.[20] I accept Mr McDonald did not have any deep personal connection to theoutcome of the litigation as was the case for the applicant in N v The District Court.Mr McDonald obtained bail, albeit through a slightly more circuitous process, so hewas taking a technical point, although one I accept was of some constitutionalimportance. This Court does not wish to dissuade people from taking technical pointswhich have constitutional importance. Specific cases serve an important function inmonitoring the institutions of the state. However, that consideration does not meanthe threshold has been reached which would justify an award of costs against a judicialofficer or body.[21] Having regard to the principles in Coroner's Court v Newton,13 I am notsatisfied that there was judicial misconduct of the kind which warrants a costs order.Indeed, in this case, the behaviour could be considered less blameworthy in that the10 N v District Court at Gisborne, above n 8, at [12].11 At [13].12 At [13].13 Coroner's Court v Newton, above n 6.decisions which were impugned were made for entirely understandable reasons toensure the safety of complainants in domestic violence cases. I also reject thesubmission that the defences were without merit.[22] Accordingly, despite acknowledging that the applicant is deserving of costs,both as the successful party, and because of the importance of the issues he raised, Ido not consider a costs award is appropriate as there is no requirement here to expressdisapproval of a judicial officer's conduct.[23] The application for costs is therefore declined.Solicitors:Hansen Law, ChristchurchCrown Law, WellingtonCopy To:A J Bailey, Barrister, Christchurch