ROE v UNIVERSITY OF OTAGO [2022] NZHC 292

ROE v UNIVERSITY OF OTAGO [2022] NZHC 292 [25 February 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2020-412-0115[2022] NZHC 292UNDER Judicial Review Procedure Act 2016IN THE MATTER of an application for Judicial ReviewBETWEEN KELLY ALEXANDRA ROEApplicantAND UNIVERSITY OF OTAGORespondentAppearances: Ms K A Rowe (Applicant) in personR J M Sim for RespondentJudgment: 25 February 2022(Determined on the papers)JUDGMENT AS TO COSTS OF GENDALL JThis judgment was delivered by me on 25 February 2022 at 2.30 pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDateIntroduction[1] In a judgment I issued in this proceeding on 3 November 2021, I dismissed anapplication by Kelly Alexandra Roe (the applicant) for judicial review which she hadbrought against the respondent, the University of Otago (the University).1[2] The applicant, Ms Roe, in her judicial review application had challenged theUniversity's decisions to decline her applications for enrolment at the University in itsBachelor of Medicine and Bachelor of Surgery (MBChB programme) (theprogramme). In my 3 November 2021 substantive decision, I found the University'sdecisions were both lawful and reasonable and I dismissed Ms Roe's judicial reviewapplication.[3] In doing so, however, I reserved costs. At para [34] of that judgment Iencouraged the parties to agree costs between themselves, but noted if they wereunable to agree memoranda on costs were to be filed and I would make a determinationon the papers. In doing so, however, I did note that costs might be sought by theUniversity as the successful party here, given that costs would ordinarily follow theevent.[4] It seems unfortunately that attempts between the parties to reach agreement asto costs have failed. The University now seeks a determination as to costs.[5] On 30 November 2021 counsel for the University, Mr Sim, filed hismemorandum seeking costs on behalf of the University. On 21 January 2021, Ms Roethe applicant, filed her memorandum on costs in response. At this point I leave on oneside any issues over delay on the part of Ms Roe in filing her costs memorandum,given that it was over one month late in terms of the directions I gave at para [34] ofmy substantive judgment.1 Roe v University of Otago [2021] NZHC 2952.[6] The University, as the party who succeeded in opposing Ms Roe's initialjudicial review application, does seek an award of costs and disbursements heretotalling $27,776, as set out in some detail in a schedule to counsel's 30 November2021 submissions. The costs claimed, calculated on a standard category 2B scalebasis, amount to $27,246. Disbursements totalling $530 representing Ministry ofJustice Court filing fees make up the balance of the claim. In his submissions, Mr Simfor the University, indicates that an award of costs at this level is generally inaccordance with the usual expectation that costs awards will equate to two-thirds ofactual solicitor and client costs in accordance with r 14.2(1)(d) of the High Court Rules2016.[7] As to Ms Roe's position on costs, in her memorandum she specifically requeststhat costs should be left to lie where they fall, and therefore no orders as to costs shouldbe made in favour of either party in this case. And, although Ms Roe in hermemorandum expressly disavows liability for the University's costs here and, as Iunderstand it, has indicated an intention to appeal my substantive 3 November 2021judgment, I accept submissions advanced on behalf of the University that it remainsappropriate for costs in the High Court to be fixed at this time. As will appear later Iaccept too that it is also appropriate for costs to be awarded to the University on thissubstantive proceeding as the successful party here.Submissions[8] As I note, the University seeks a costs and disbursements order against Ms Roehere totalling $27,776. The costs component here is calculated on a category 2B scalebasis which counsel Mr Sim suggests is appropriate. I agree. Category 2B isappropriate in my view on the basis that the proceedings were of average complexity(thereby justifying category 2) and each of the steps for which costs are claimed tookat least a normal amount of time (thereby justifying band B). As to the 2B costscategory to be allocated here, this is effectively unchallenged by Ms Roe at this point,and as I understand it, the 2B costs category has never been challenged throughout theproceeding.[9] Further, Ms Roe as applicant makes no challenge to the accuracy of theUniversity's costs or disbursements calculations. It is somewhat difficult to discernMs Roe's clear argument as to the costs questions from the her submissions. Instead,largely Ms Roe appears to replead the substance of her unsuccessful substantive claim.To the extent there is any discernible argument as to costs, it appears to be that theapplicant, Ms Roe, regards herself as having performed a significant service to theCourts here. On no fewer than five occasions in her submissions Ms Roe alleges shehas been "forced" or "required" to "slave for the Courts".2 Ms Roe contends that,through bringing these proceedings, she has established a precedent that in her words"the public Universities of New Zealand may arbitrarily throw away any applicationsto enrol that they had received" and "may enrol or not enrol whenever they want forwhatever arbitrary reasons they want (else no reasons at all)". Ms Roe goes on toassert that the actions of the Courts and the University mean that it would be a "grossinjustice" to require her to pay the costs of Mr Sim as the University's counsel here,as the work that he has done was work that was instructed to be done by either theUniversity or the Courts.[10] As will appear later in this judgment, I disagree. There is no merit in thesearguments Ms Roe endeavours to raise. The amounts claimed by the University forcosts and disbursements here represent work that was necessary for the University todefend a claim against it, a claim that this Court has judged was entirely without merit.And, it was the applicant Ms Roe alone who chose to bring this claim.Discussion[11] In terms of the High Court Rules, generally the party who fails with respect toa proceeding such as the applicant here, should pay costs to the party who succeeds.3Moreover some justification is required to depart from this general principle so thatcosts can be both predictable and expeditious.42 At paras 7, 8, 9, 10 and 11 of her costs submissions.3 Rule 14.2(1)(a).4 Rule 14.2(1)(g) and see Mansfield Drycleaners Ltd v Quinny's Drycleaning (Dentice DrycleaningUpper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27].[12] Indeed, in my view the work performed by Mr Sim as counsel for theUniversity here has been valuable in clarifying and defining all the issues at handwhich the Court was required to determine. Initially, Ms Roe as the applicant, hadraised a wide and disparate range of issues in her judicial review claim and pursued anumber of remedies later abandoned. These included an unspecified claim for anamount by way of damages and an order removing University personnel from office.Many claims were also not pursued at the hearing before me, this appearing to be aline taken by Ms Roe only at the very last minute. From an early stage, Ms Roe didnot identify with any degree of clarity the real matters at issue in this proceeding. Onlyafter a number of case management conferences and a successful strikeout applicationfiled by the University did the ultimate issues become clear and were extraneousmatters abandoned. It is appropriate in my view the University is awarded costs forall its work in this regard. I acknowledge as well that (unusually in civil proceedings)it was counsel for the University who prepared the common bundle for the assistanceof the Court.[13] Neither can it be said in any sense as I see the position that the applicant wasnot forced to be "a slave for the Courts". Ms Roe was not forced to bring her claimand at any time during the proceedings she could have abandoned it. As the Court hasfound (similarly to conclusions reached in other proceedings brought againstUniversities and related parties by the applicant),5 Ms Roe's claim here is totallyunmerited and based on certain assumptions and interpretations of the relevant statutewhich are incorrect. While she is free to challenge the University's decisions by wayof judicial review, this must be carried out with an acknowledgement that costs can beawarded against a party who has failed in the event the challenge is unsuccessful.[14] The applicant's argument on this costs question, at best as I see it, might beseen as a request for the Court to exercise its discretion under r 14.7(e), to refuse tomake a costs order on the basis the proceedings here concerned matters of publicinterest. However, in my view, Ms Roe's application in the present case clearly failsto meet the threshold generally expected to engage this exception. As in her otherapplications pursued in this Court and elsewhere, the arguments Ms Roe presented5 See also Roe v New Zealand Vice Chancellors Committee [2021] NZHC 719; Roe v University ofAuckland [2021] NZHC 368; Roe v University of Waikato [2021] NZHC 1808.here lacked merit and did not have "general public importance beyond the interests ofher as the unsuccessful litigant".6[15] Turning now to the quantum of costs and disbursements claimed, I repeat I amsatisfied the costs claim on a standard category 2B scale basis is an appropriate one.Ms Roe the applicant in her costs memorandum, does not challenge the accuracy ofthe costs claimed or the amounts. Indeed, at para 1 of her costs memorandum shestates:"Ms Roe agrees that Mr Sim appears to have correctly listed the work that hehas completed on these proceedings".[16] Those costs claimed at $27,246 seem to me to be appropriate in all thecircumstances here. They are approved.[17] As to disbursements, the amounts claimed by the University total $530 and, asI have noted, represent only Ministry of Justice Court filing fees. They areappropriately payable by the applicant here as well.Result[18] In summary, I find the University as the successful party here is entitled to anaward of costs and disbursements against the applicant Ms Roe under r 14.1(a) of theHigh Court Rules. This is on the basis of the primary principle outlined there thatunless there are exceptional reasons, costs follow the event. "The loser, and only theloser, pays".7 There are no exceptional reasons here of any kind to indicate that theprimary principle noted above might not apply in this case. And, as to the quantum ofthose costs and disbursements claimed, these amounts are fully detailed in Mr Sim'ssubmissions and a schedule for the University submissions which Ms Roe has hadsince 30 November 2021. She has chosen to raise no specific issues as to this quantumand I am satisfied in all the circumstances here the amounts claimed are appropriate.6 Taylor v District Court at North Shore (No 2), HC Auckland, CIV-2009-404-2350, 13 October2010 at [9]; and see Roe v New Zealand Vice Chancellors Committee [2021] NZHC 1293 at [8]-[9]and the cases cited therein.7 Shirley v Wairarapa District Health Board [2006] NZSC 63.[19] Accordingly costs and disbursements are awarded in this proceeding againstMs Roe, the applicant, in favour of the respondent University in the total sum of$27,776.Gendall JSolicitors:Gallaway Cook Allan, DunedinCopy to:Ms Roe