GREEN v NEW ZEALAND POLICE [2019] NZHC 1019

GREEN v NEW ZEALAND POLICE [2019] NZHC 1019 [30 May 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-2427[2019] NZHC 1019UNDER the Judicial Review Procedure Act 2016BETWEEN GLENN GREENApplicantAND NEW ZEALAND POLICERespondentOn the papersAppearances: Applicant, Self-representedJ Simpson for RespondentJudgment: 30 May 2019COSTS JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 30 May 2019 at 2.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] On 5 April 2019, I gave a judgment striking out an application for judicialreview by Glenn Green and reserved the question of costs for consideration on thebasis of memoranda to be filed.1[2] Counsel for the respondent has filed a memorandum seeking payment of$3,270, being the total amount of the costs incurred. Mr Green opposes the makingof any costs order.The nature of the proceeding[3] Mr Green appeared in the District Court at Waitakere on 13 September 2018,charged with blackmail. After he had pleaded not guilty and elected trial by jury, hisapplication for bail pending trial was opposed by the Police. The grounds foropposition were set out in a standard form, POL 128 08/10, which is routinelycompleted by the Police when an application for court bail is opposed.[4] Judge L Tremewan declined to grant bail, giving her reasons in a consideredjudgment.2 Mr Green appealed against the refusal of bail but subsequently abandonedthe appeal, and it was dismissed by Lang J on 11 January 2019.[5] In the judicial review proceeding, Mr Green sought to challenge the content ofthe bail opposition form and the actions of the Police in preparing it. He sought:(a) a declaration that the bail opposition form was invalid;(b) an order striking out the form, purportedly under rr 5.17 and 5.25 - 5.35of the High Court Rules 2016; and(c) an order directing that the Police "be investigated for crimes under theCrimes Act 1961".1 Green v Police [2019] NZHC 708.2 Police v Green [2018] NZDC 19327.[6] In support of his claim, Mr Green alleged that the Police deliberately fabricatedthe completed form by including false and misleading information about his priorconvictions and presented it to the District Court "to obtain a pecuniary advantage".[7] In considering the application by the New Zealand Police to strike outMr Green's claim, I held:(a) The proffering of the bail opposition form did not amount to theexercise of a statutory power of decision susceptible to review underthe Judicial Review Procedure Act 2016;3(b) The Court did not, in any event, have the power to "strike out" theopposition to bail form nor to direct an investigation into spuriousallegations of criminal behaviour by Police officers;4 and(c) The claim was an abuse of the process of the Court because the realthrust of the proceeding was to challenge Judge Tremewan's decisionto decline bail to Mr Green and that an appeal against the District Courtdecision was the appropriate procedure for reviewing it.5Discussion[8] In his succinct memorandum in support of the respondent's application forcosts, relying on the general principle that a party who fails with respect to aninterlocutory application should pay costs to the party who succeeds,6 Mr Simpsoncalculates that 2B costs of $8,808.50 and disbursements of $250 would be availableto the respondent under the costs schedule. He notes, however, that the respondent'sactual costs amounted to only $3,270 (including disbursements). In accordance withr 14.2(1)(f), a party may not recover a greater amount of costs than those actuallyincurred.3 At [15]-[18].4 At [19].5 At [20].6 High Court Rules 2016, r 14.2(1)(a).[9] Mr Green opposes the making of any order for costs, arguing that he believesthat his case would have had reasonable success had a lawyer represented him becausehe struggled with the legal authorities and was severely disadvantaged representinghimself in the proceeding from prison. Mr Green says that because he was not legallyaided or represented, the costs should not be awarded as his claim was not frivolousor vexatious in any way and, based on the material put before the Court, showed somemerit.[10] I do not know whether Mr Green sought legal advice before issuing theproceeding. I have no doubt that any lawyer he consulted would have told him thathis case was hopeless in that it was entirely misconceived and had no prospect ofsuccess. Moreover, Mr Green would have had an opportunity to present to the Courtall of the arguments which he proposed to make in this proceeding if he had notabandoned the appeal proceeding he had begun.[11] All matters relating to costs are in the discretion of the Court.7 The exercise ofthe Court's discretion is informed by rr 14.2 to 14.10 and the principles applied byr 14.2 are particularly important.[12] Rules 14.2(1)(d) and (e) give definition to the long-standing principle that, inNew Zealand, costs are to represent a reasonable contribution to costs actually andreasonably incurred.8 They provide:14.2 Principles applying to determination of costs(1) The following general principles apply to the determination of costs:...(d) an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to theproceeding or interlocutory application:(e) what is an appropriate daily recovery rate and what is areasonable time should not depend on the skill or experienceof the solicitor or counsel involved or on the time actuallyspent by the solicitor or counsel involved or on the costsactually incurred by the party claiming costs....7 High Court Rules 2016, r 14.1(1).8 McGechan on Procedure (loose-leaf ed, Thomson Reuters) at HR 14.2.01(4).[13] The Court's costs jurisdiction is compensatory, as r 14.2(1)(f) makes clear. Tothe extent that the prospect of an award of costs being made against an unsuccessfulparty may operate as a barrier to access to justice, the interests of prospective plaintiffsare balanced against the interests of prospective defendants by the application of therules for calculating the amount of costs payable by reference to complexity andsignificance of the case assessed objectively rather than by reference to the costsactually incurred. Moreover, the daily recovery rates provided in Schedule 2 of theRules are intended broadly to approximate two-thirds of the rates that New Zealandpractitioners in the relevant category currently charge to clients.9[14] The ability of an unsuccessful party to make a contribution to the costs of thesuccessful party is not a factor listed in the general principles applying to thedetermination of costs, set out in r 14.2.[15] As the learned authors of McGechan explain, a regime providing for less thanfull costs recovery is intended in part to balance access to justice against the interestsof the successful party who might otherwise end up "seriously out of pocket in termsof its litigation costs".10 It might also be said that declining to make a costs orderagainst a successful party, in a case having no merit, despite which the successful partywas obliged to incur costs in resisting the proceeding, would provide an undesirableincentive to impecunious potential litigants to pursue hopeless cases. The time forconsideration of an unsuccessful litigant's ability to meet a costs order properly madeis when the successful party takes steps to enforce the order.[16] In this case, the respondent, its solicitors and counsel took reasonable andappropriate steps to bring an end to a proceeding which should never have beenbrought in the first place and which, had it continued, would have resulted in a wasteof the Court's and the parties' resources.[17] Mr Green's proposition that his claim had merit is a challenge, withoutfoundation, to the findings which led to the order striking out the proceeding. Heasserts that his claim would at least have been arguable if he had had the benefit of9 McGechan at HR 14.4.01.10 At 14.2.01(4).representation by counsel. Accepting that proposition would be to attribute to the legalprofession powers of invigoration of a kind described in the Scriptures.Order[18] I direct that Mr Green shall pay the New Zealand Police costs anddisbursements in the sum of $3,270...................................................Toogood J