NOTTINGHAM v ATTORNEY-GENERAL [2022] NZHC 1060

NOTTINGHAM v ATTORNEY-GENERAL [2022] NZHC 1060 [16 May 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-1793[2022] NZHC 1060UNDER Judicial Review Procedure Act 2016, HabeasCorpus Act 2001 and Declaratory JudgmentsAct 1908BETWEEN DERMOT GREGORY NOTTINGHAM andROBERT EARLE MCKINNEYApplicantsAND ATTORNEY-GENERALRespondentHearing: On the papersCounsel: Applicants in personS Kinsler and M Clarke-Parker for RespondentJudgment: 16 May 2022JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Monday, 16 May 2022 at 12:15 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Meredith Connell (Office of the Crown Solicitor)Copy to: Applicants[1] On 9 March 2022 I gave judgment striking out three proceedings brought bythe plaintiffs.1 The Attorney-General now applies for costs.Background facts[2] The plaintiffs applied for judicial review, declaratory orders, and a writ ofhabeas corpus. Each proceeding was a challenge to the Government's actions takenin response to the COVID-19 pandemic. They were case managed together.[3] The judicial review proceeding sought orders striking down the COVID-19(Public Health Response) Act 2020 and related legislation, as well as orders that theGovernment repay loans, compensate those impacted by lockdowns and vaccination,and that the Prime Minister apologise. I found the Court had no jurisdiction to grantthese orders.2[4] The declaratory orders sought were a declaration that s 10 of the New ZealandBill of Rights Act 1990 is a non-derogable right, and other orders necessary to enforcethis. I found the terms of the orders sought were too broad and vague, and s 10, whichrelates to medical experimentation, was not engaged.3[5] The plaintiffs had already unsuccessfully applied for habeas corpus. On appealfrom that decision the Court of Appeal found they were not detained in the senseintended by the Habeas Corpus Act 2001.4 I found I was bound by that decision.5 Ialso noted it appeared the plaintiffs were using the habeas corpus procedure as a meansof obtaining a priority fixture for their other proceedings.6Defendant's submissions[6] The Attorney-General submits 2B costs are appropriate, under r 14.8(1)(a) ofthe High Court Rules 2016 (Rules), which provides that costs on opposed interlocutory1 Nottingham v Attorney-General [2022] NZHC 405.2 At [28].3 At [34]–[35].4 Nottingham v Ardern [2020] NZCA 144, [2020] 2 NZLR 207 at [25].5 Nottingham v Attorney-General, above n 1, at [37].6 At [37].applications must be fixed in accordance with the Rules when the application isdetermined. The Attorney-General applies for costs as follows:Costs on a 2B basis (per day) $2,390.001 Commencement of defence by defendant (judicialreview proceeding)$4,780.001 Commencement of defence by defendant (declaratoryorders proceeding)$4,780.001 Commencement of defence by defendant (habeas corpusproceeding)$4,780.0011 Filing memorandum for first or subsequent casemanagement conference or mentions hearing (memo of2 November 2021)$956.0011 Filing memorandum for first or subsequent casemanagement conference or mentions hearing (memo of29 November 2021)$956.0013 Appearance at first or subsequent case managementconference (27 October 2021 before Walker J)$717.0013 Appearance at first or subsequent case managementconference (3 November 2021 before Woolford J)$717.0013 Appearance at first or subsequent case managementconference (1 December 2021 before Peters J)$717.0022 Filing interlocutory application (12 November 2021) $1,434.0023 Filing opposition to interlocutory application (8November 2021 – submissions on priority fixture)$1,434.0024 Preparation of written submissions for interlocutoryapplication (3 February 2021)$3,585.0025 Preparation by applicant of bundle for hearing $1,434.0026 Appearance at hearing of defended application for soleor principal counsel$2,390.00Total costs (12 days) $28,680.00[7] The Attorney-General also claims as disbursements the filing fees for threestatements of defence, that is, one for each of the plaintiffs' applications ($110.00each); filing fees for its interlocutory application for strike-out ($500.00); and thehearing fee ($640.00). The disbursements claimed total $1,470.00.[8] In total, the Attorney-General claims $30,150.00 in costs and disbursements.[9] The Attorney-General notes Mr Nottingham is an undischarged bankrupt, butsubmits financial hardship is no answer to a claim for a costs award, particularly wherethe case lacks merit.7[10] The Attorney-General also anticipates two arguments against costs.[11] Firstly, costs may be reduced on proceedings that concern a matter of publicinterest, where the party opposing costs acted reasonably in the conduct of theproceeding.8 The Attorney-General submits the public interest in the proceedings wasminimal, as, in my words, the proceedings disclosed no reasonably arguable cause ofaction.9 In addition, the plaintiffs did not act reasonably as they sought remediesbeyond the jurisdiction of the Court and attempted to relitigate an issue that hadalready been determined.[12] Secondly, that costs are awarded on habeas corpus applications only in"exceptional circumstances".10 The Attorney-General submits the habeas corpusapplication was abusive, and in no meaningful sense a habeas corpus application. Herefers to AN v Counties Manukau District Health Board, in which costs were awardedagainst an applicant who had the ability to appeal the relevant decision, but insteadpursued a habeas corpus application despite being advised it would be futile.11Plaintiffs' submissions[13] The plaintiffs submit costs should not be awarded as the judgment was wronglydecided, that I should have recused myself, and that, having determined theproceedings, I am functus officio and cannot determine costs.[14] Briefly, the plaintiffs repeat many of their submissions on the substantivejudgment, and submit I wrongly described their submissions as "unintelligible", relied7 Foni v Foliaki [2018] NZHC 3126 at [5].8 High Court Rules 2016, r 14.7(e).9 Nottingham v Attorney-General, above n 1, at [40].10 Manuel v Superintendent, Hawkes Bay Regional Prison [2006] 2 NZLR 63 (CA).11 AN v Counties Manukau District Health Board [2016] NZCA 226, [2016] NZFLR 468.on precedent, particularly in relation to the purpose of the Habeas Corpus Act, insteadof coming to my own conclusions, and made incorrect findings on the burden of proof.They also add that I was likely biased, as I am a former partner at the law firm actingfor the Attorney-General.[15] Secondly, I did not award costs in my judgment of 9 March 2022. Theplaintiffs submit I am functus officio and cannot now return to the proceedings toaward costs.Discussion[16] I am unable to address the plaintiffs' arguments about the merits of the decisionon an application for costs. My judgment on costs must assume the substantivejudgment is correct. Its merits are no longer in dispute.12 If the plaintiffs wish tochallenge the merits of that judgment, the correct procedure is to appeal it.[17] While I made no order for costs in my judgment of 9 March 2022, this doesnot preclude an application for costs now, in line with the general principle that costsfollow the event.13[18] The subject matter of the hearing; the COVID-19 lockdown and vaccinationorders, was clearly of public interest. As the Attorney-General submits, the specificsof the applications were of lesser public interest, as they sought orders the Court wasunable to grant, re-litigated an issue already decided by the Court of Appeal, and, inthe case of the application for declaratory orders, did not relate to any specificvaccination mandate as the application was filed before any such mandate wasimplemented.[19] The plaintiffs did not act reasonably by attempting to relitigate the habeascorpus proceeding. Nor was it reasonable to seek orders outside the jurisdiction of theCourt. However, I accept the plaintiffs acted in good faith and in the belief theirapplications were reasonable.12 Stokes v Prain [2021] NZCA 683 at [13].13 Dowden v Commissioner of Inland Revenue [2021] NZCA 206 at [3].[20] In any event, there is an additional requirement for reduced costs on matters ofpublic interest; the application must have some merit.14 I found the plaintiffs'applications unmeritorious. Therefore, an order for reduced costs under r 14.7(e) isnot appropriate.[21] I agree with the Attorney-General's submission that the general rule on costson habeas corpus applications does not apply. In Manuel v Superintendent, HawkesBay Regional Prison, the Court of Appeal explained that "money barriers should notbe placed on that avenue of freedom".15 The plaintiffs were not making a bid forfreedom from prison; they were not detained.[22] Finally, I accept the Attorney-General's submission that financial hardship isno barrier to an award of costs. However, I note the observation of Muir J that:16 the Court may fairly look to the Crown to adopt a responsible position inrelation to recovery, mindful of the context in which the costs application ismade.Result[23] Costs and disbursements are payable by the plaintiffs to the Attorney-Generaltotalling $30,150.____________________________Woolford J14 New Zealand Climate Science Education Trust v National Institute of Water and AtmosphericResearch Ltd [2013] NZCA 555 at [11].15 Manuel, above n 10, at [34].16 HA v Refugee and Protection Officer [2018] NZHC 1011 at [16].