WALLACE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2830 [10 October 2023]

WALLACE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2830[10 October 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-579[2023] NZHC 2830UNDER the Judicial Review Procedure Act 2016BETWEEN ELETISE NATASHA WALLACE,RACHEL VINCENT, DOMINIQUECARROLL, MIHI ISABELLA BASSETT,TIPARE ROPITINI, TARIANA JONESAND LARA ATKINSApplicantsAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: On the papersAppearances: V E Casey KC and A L Hill for the ApplicantsS M Kinsler and M J Mortimer-Wang for the RespondentJudgment: 10 October 2023JUDGMENT OF COOKE J(Costs)[1] By judgment dated 18 August I upheld the applicants' judicial review claimson a series of grounds.1 The challenged decisions involved the transfer of sentencedwomen prisoners out of Arohata Prison to prisons in Auckland and Christchurch, andthe effective closure of Arohata for most sentenced women prisoners. I indicated thatthe applicants would be entitled to costs and that if costs could not be agreedmemoranda could be filed.2 Costs have not been able to be agreed and memorandahave been filed.1 Wallace v Chief Executive of the Department Corrections [2023] NZHC 2248.2 At [122].[2] The respondent agrees to an award of costs in favour of the applicants, that theproceeding should be categorised as category 3, and with the time band C assessmentsfor a number of steps claimed. But there are differences between the parties that fallinto two general categories:(a) the respondent disagrees with some of the steps claimed by theapplicants; and(b) the applicants seek indemnity costs, or an uplift of costs for reasonswhich are largely disputed by the respondent.Disputed steps[3] The respondent disputes some of the steps in the applicants' claim. I addresseach of the matters in turn.[4] The applicants make claims under steps 16, 22 and 24 under time band B for anotice to answer interrogatories, filing an interlocutory application for discovery andpreparing written submissions (totalling 3.1 days). The respondent points out thatwhat was actually filed of counsel was a memorandum that encompassed those threematters and proposes an allowance of 1.5 days. I agree with the respondent'ssubmission. Costs should not be calculated on the basis of steps that a party couldhave taken. I also agree that treating the memorandum as equivalent to preparingwritten submissions for an interlocutory application on a band B basis, involving 1.5days, is appropriate.[5] The applicants' claim on the time band C basis for steps 22 (filing interlocutoryapplication), 24 (preparing written submissions) and under 26 and 27 (appearance forcounsel) for the cross-examination application (totalling 5.75 days). The respondentsays that these steps should be allowed under time band B which would involve a totalof 2.85 days. I agree with the respondent. There is no reason why this interlocutoryapplication should be treated as a particularly onerous one in terms of the timerequired. Cross-examination in judicial review is unusual, but the time bandassessment is not the place to address that issue.[6] The applicants' claim under steps 22 (filing an interlocutory application) and36 (steps not provided for) involving 1.6 days in relation to an application for interimrelief concerning one of the applicants. The respondent says that this was incorrectlyfiled as an interlocutory application in this proceeding, and a number ofprocedural/jurisdictional points are raised. I do not accept them. The applicationsought to stop a prisoner being moved from Arohata to Auckland Regional Women'sCorrections Facility. The Chief Executive then transferred her back to Arohata. Asexplained in the substantive judgment, at the time of the interim relief application theCourt was advised that this prisoner would not be transferred from Arohata.3 Hertransfer after interim relief was decided then gave rise to this further application. Thefact that such a further application was made was hardly surprising in thosecircumstances. There is also no substance to the respondent's argument that theapplication was made in a personal rather than the representative capacity advancedby the applicants in this judicial review claim — the application was advanced by oneof the applicants to this proceeding. I see the application as appropriate, and that thecost of it should be allowed as claimed.Claim for uplift[7] The applicants seek either the award of indemnity costs, or an uplift of costsunder r 14.6 for a series of reasons contemplated by that rule. The respondent acceptsthe general importance and Bill of Rights significance of the case, but says that thisdoes not justify an award of indemnity costs but only a percentage uplift.[8] I accept that there are two factors that justify an increase to the costs awardunder r 14.6.[9] First, the Court did not accept the affidavit evidence filed by the respondent inrelation to a factual matter that was decisive for one of the grounds of review. Inparticular the Court did not accept the respondent's affidavit evidence that theindividual circumstances of each of the women prisoners were considered when thetransfer decisions were made for each of them. I accept the respondent's point thatthis did not go as far as a credibility finding, and that the Court routinely makes3 At [32].decisions on what evidence it accepts or rejects in civil proceedings. But in judicialreview proceedings such findings should not be necessary. The evidential disputeincreased the costs of the proceeding because of the need for the cross-examinationapplication (which was opposed) and it also lengthened the substantive hearing. Thereis also significance in the fact that had the true factual position been known at theinterim relief hearing it is possible that the outcome of that hearing would have beendifferent, and accordingly the costs of the proceedings overall were increased becauseof this evidence. The respondent's evidence may also not have been consistent withthe duty of candour which the Court expects of the Crown. These circumstances fallwithin r 14.6(3)(b)(iii) as the factual dispute caused an unnecessary increase to thetime and expense of the proceeding.[10] Secondly, the applicants seek higher costs because the proceedings were ofgeneral importance for persons other than the parties and involved a vindication ofrights under the New Zealand Bill of Rights Act 1990. This can warrant an upliftunder r 14.6(3)(c) and (d) or the award of indemnity costs as the Court of Appealrecognised in Attorney-General v Udompun.4 I accept that these principles areengaged here. The applicants brought the proceeding on behalf of all of the womenprisoners who had been transferred out of Arohata Prison, and more generally. TheCourt found that the statute had not been complied with and that there had been abreach of non-discrimination rights under the Bill of Rights. In that context it issignificant that the applicant group is a significantly disadvantaged group. It isimportant that disadvantaged groups have access to the courts to vindicate rights, andthat there should not be financial barriers in that respect. This is part of the justificationfor an uplift.[11] I consider that the above two factors warrant an uplift of the costs award by 25per cent. But I do not award indemnity costs as I am not satisfied that the standardsset by r 14.6(4) arise. Moreover the award of costs should not be regarded as theremedy for the breach of the Bill of Rights. That remedy remains to be addressed aspart of this judicial review proceeding.4 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186]–[187].[12] The applicants brought these proceedings under a grant of legal aid. Counselfor the applicants advise that quantum of costs representing indemnity costs "isexpected to be close to the scale costs calculated in accordance with the attachedschedule". That means that the principles set out in r 14.2(1)(f) will be relevant — theaward of costs should not exceed the actual legal expenditure of the applicants to date.The actual legal aid payments for the proceedings to date will accordingly operate asa ceiling on the amounts that may be recovered under this costs award.[13] The uplifted costs so awarded may be close to, or actually involve an award ofthe applicants' actual legal expenditure notwithstanding that they have not persuadedthe Court to award them indemnity costs. But that does not meant that their awardshould be reduced. The fact that a particular litigant has lower legal expenditure thanexpected by the Rules, in this case because the expenditure has arisen through a grantof legal aid, does not mean that a appropriate uplift of costs under r 14.6 should bereduced. If a party has incurred legal expenditure more efficiently they should not bepenalised for having done so.[14] The applicants are accordingly awarded costs on the basis set out above,including a 25 per cent uplift.Cooke JSolicitors:Amanda Hill, Barrister and Solicitor, Lower Hutt for the ApplicantsMC, Wellington for the Respondent