NESBITT v CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT – Costs [2022] NZHC 249

NESBITT v CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT –Costs [2022] NZHC 249 [23 February 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-2109[2022] NZHC 249UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial review ofdecisions made pursuant to Section 15LCOVID-19 Public Health Response(Isolation and Quarantine) Order 2020BETWEEN JESSICA NESBITTApplicantAND CHIEF EXECUTIVE OF MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTRespondentCIV-2021-404-2110BETWEEN ANNA CLARK and ADAM JOSEPHCLARKApplicantsContinued overleafHearing: On the papersAppearances: T D Clee for applicantsP H Courtney and S M Perera for respondentDate of judgment: 23 February 2022JUDGMENT OF JAGOSE J[Costs]This judgment was delivered by me on 23 February 2022 at 11.00am.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarAND CHIEF EXECUTIVE OF MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTRespondentCIV-2021-404-2121BETWEEN EMMA LOUISE WATERS and JOSEFMOU MOU WATERSApplicantsAND CHIEF EXECUTIVE OF MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTRespondentCIV-2021-404-2122BETWEEN MELE FALAHOLA ELONE and SHANEPOTTSApplicantsAND CHIEF EXECUTIVE OF MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTRespondentCIV-2021-404-2123BETWEEN IOANNA PETRAKISApplicantAND CHIEF EXECUTIVE OF MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTRespondent[1] In these five proceedings — for judicial review of the respondent's decisionsrefusing the applicants managed isolation allocation,1 all reconsidered to variable endsand agreed moot and dismissed accordingly2 — the applicants each seek 2B costs from1 COVID-19 Public Health Response (Isolation and Quarantine) Order 2020, cl 15I(2) (nowCOVID-19 Public Health Response Act 2020, s 32K2 Nesbitt v MBIE HC Auckland CIV-2021-404-2109, 17 and 24 November, and 1 December, 2021.the respondent for their step of commencing the proceeding ($7,170) and an"instructing solicitor fee" ($200). The applicants' counsel, Tudor Clee, is express heacted "pro bono", without charging the applicants any fee.[2] The respondent came to no different conclusion on reconsideration of theNesbitt, Petrakis and Waters' decisions, each of whom subsequently obtained accessto managed isolation through the online allocation system. The respondent'sreconsideration of the Clarks' and Elone and Potts' decisions granted them offlineallocations, on grounds of their changed circumstances (including more imminent duebirth dates) identified for reconsideration. Given those reconsiderations and theirconsequences, I disregard the applicants' contentions as to the merits of their claims,especially as primarily articulated by reference to other proceedings.[3] It should be unnecessary to recount the general principles applying todetermination of costs, prime among them being the party who fails with respect toa proceeding should pay costs to the party who succeeds;3 costs are payable accordingto scale applied by reference to "each step reasonably required in relation to theproceeding";4 and "so far as possible the determination of costs should be predictableand expeditious".5[4] On none of the proceedings can the respondent be said to have failed or theapplicants be said to have succeeded. I am not prepared to assume the respondentwould not have granted the allocations but for the proceedings' issue. No orthodox'letter before proceedings' is brought to my attention.6 Instead the applicants haveoccupied scarce Court time and resources to achieve their ends without the Court'sintercession. The issue of proceedings cannot be said "reasonably required".[5] While the principle "an award of costs should not exceed the costs incurred bythe party claiming costs"7 is subject to my discretion to award costs,8 the fact of3 High Court Rules 2016, r 14.2(1)(a).4 Rule 14.2(a)(c).5 Rule 14.2(1)(g).6 Matthew Smith NZ Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington, 2016) at1.1.7 High Court Rules, r 14.2(1)(f).8 Rule 14.1.counsel acting 'pro bono'9 may not be a material consideration.10 In any event, I amnot satisfied any of the present applications, brought without prior notice to therespondent, may be characterised then brought "for the public good or in the publicinterest", but only in each applicants' private interest.[6] Last, nothing in costs' principle or practice warrants an award of an "instructingsolicitor fee": scale costs are a contribution to, not indemnity of, a successful party'slegal expenses. The statutory threshold for indemnity costs11 requires "distinctly badbehaviour",12 of "flagrant" or "very unreasonable" misconduct.13 Nothing of thatnature is established here. And no instructing solicitor is identified on the fileddocuments.[7] It is predictable and expeditious no costs be payable in such circumstances.[8] The applicants' applications for costs are dismissed. Costs lie where they fell.—Jagose JCounsel/Solicitors:T D Clee, Barrister, AucklandCrown Law, Wellington9 Peter Spiller New Zealand Law Dictionary (9th ed, LexisNexis, Wellington, 2019): definition of"pro bono publico":(Latin, for the public good) Legal work performed free or at a reduced fee, for the publicgood or in the public interest. Work is often performed pro bono on issues of broadcommunity concern or with significant impact on disadvantaged or marginalised groups. SeeRe Fidow (a debtor) [1989] 2 NZLR 431, 444–5 ("the role of protectors of the publicinterest").10 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167, (2014)25 PRNZ 637 at [22]. Compare Marino v Chief Executive of the Department of Corrections [2017]NZCA 2 at [3].11 High Court Rules, r 14.6(4).12 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [26].13 Prebble v Huata (No 2) [2005] NZSC 18, [2005] 2 NZLR 467 at [6]; and Flujo Holdings Pty Ltdv Merisant Co Inc [2018] NZCA 226 at [34].