PRESCOTT v NEW ZEALAND POLICE [2020] NZHC 2424

PRESCOTT v NEW ZEALAND POLICE [2020] NZHC 2424 [17 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-002164[2020] NZHC 2424BETWEEN PETER RICHARD PRESCOTTApplicantAND NEW ZEALAND POLICERespondentHearing: (On the papers)Counsel: Applicant in PersonHayley McKee and Alexandra Tumahai for the RespondentJudgment: 17 September 2020JUDGMENT OF MOORE J[Application to reserve costs award]This judgment was delivered by me on 17 September 2020 at 2:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] Mr Prescott applies to reverse a costs order I made against him in May 2017("the May 2017 order") pursuant to r 14.8(2) of the High Court Rules 2016, and tohave that amount repaid to him pursuant to r 20.20.Procedural background[2] Mr Prescott was arrested in 2011. In 2016, he issued civil proceedings againstthe Police alleging they had breached his rights under the New Zealand Bill of RightsAct 1990. On 10 August 2016, Judge P A Cunningham delivered judgment againstMr Prescott.1 She awarded costs in favour of the Police on a 2B basis totalling$27,111.02 ("the 2016 order").2 Mr Prescott then filed an application for judicialreview and an appeal of Judge Cunningham's substantive decision. Woodhouse Jdirected these to be heard together.[3] Mr Prescott applied for a stay of the enforcement of the 2016 order pendingthe determination of those matters. I declined his application on 3 April 2017.3 Iawarded costs on the stay application on a 2B basis to the Police, totalling $5,686.50plus disbursements of $132.51. Mr Prescott filed an application for leave to appealthat decision but failed to pay security for costs on the appeal and it was thus deemedabandoned.[4] On 2 June 2017, the Police issued a bankruptcy notice against Mr Prescott onthe basis of non-payment of the May 2017 order. On 25 October 2017, AssociateJudge Bell dismissed Mr Prescott's application to set aside the bankruptcy notice.4 On15 November 2017, Associate Judge Bell granted the Police costs of $9,923.50 on thatapplication. Mr Prescott then applied to the Court of Appeal for leave to appealAssociate Judge Bell's substantive judgment out of time. The Registrar of the Courtof Appeal declined to waive security for costs. Mr Prescott sought a review of therRgistrar's decision, but it was upheld by Brown J on 16 February 2018.51 Prescott v Police [2016] NZDC 14357.2 Prescott v Police [2016] NZDC 20562.3 Prescott v Police [2017] NZHC 620.4 Prescott v Police [2017] NZHC 2701.5 Prescott v Police [2018] NZCA 16.[5] On 22 January 2018, the Police applied for an order adjudicating Mr Prescottbankrupt for the amount owing under the 2016 order and the May and November 2017costs orders. As a result, he paid $16,079.39 to the Police in payments of the May andNovember 2017 costs orders. Associate Judge Smith made a halt order for theapplication for adjudication, pending the hearing and determination of Mr Prescott'sappeal and judicial review application.6[6] On 18 December 2019, Gault J dismissed the appeal and judicial reviewapplication on the grounds the arrest was lawful.7 He stated:8"Costs ordinarily follow the result. The respondents have succeeded but, atleast in relation to the arrest appeal, on grounds not raised in the District Court.Also, the Courts have acknowledged that it may not always be appropriate toallow costs to follow the event in cases involving the application of NZBORAbecause the normal costs rules may discourage litigants from bringingNZBORA claims. It is unlikely that costs will be awarded against anunsuccessful plaintiff if a NZBORA claim is bona fide and is found to havehad some merit even though unsuccessful, especially if the plaintiff sought nomore than a vindication of rights, and the conduct of the case did not warrantan adverse costs order. I record my view that the lawfulness of the arrest issuedid have merit."[7] The parties agreed the costs of the High Court proceedings (appeal and judicialreview) were to lie where they fell, and Gault J later also ordered that costs from the2016 order should lie where they fell.9[8] On 5 May 2020, the Police sought to discontinue their application foradjudication in the bankruptcy proceeding. Mr Prescott opposed the discontinuanceand submitted he was entitled to a refund of the amounts he had paid in respect of theMay and November 2017 costs orders. Associate Judge Bell found there was no basisfor a refund and gave leave for the Police to withdraw their application.10[9] Mr Prescott now applies to reverse my May 2017 costs order.6 Police v Prescott [2018] NZHC 618.7 Prescott v Police [2019] NZHC 3376.8 At [113] (citations omitted).9 Prescott v Police [2020] NZHC 847.10 Prescott v Police [2020] NZHC 1727.SubmissionsMr Prescott[10] Mr Prescott submits that as a successful appellant, he should be restored to theposition he would have occupied if his outcome had been adopted from the beginning.Police[11] Ms McKee, for the Police, submits that the merits of the stay application beforeme were different to the merits on the substantive claim. She submits that theprinciples applying to applications for a stay specifically recognise that the judgmentsubject to the stay might ultimately be overturned and the successful party is generallyallowed to have the benefit of those costs pending appeal.11 Mr Prescott had appliedfor a stay in circumstances where the established law went against him; it isappropriate that he bears the costs consequences of that decision. Otherwise,appellants would not be disincentivised from making unmeritorious interlocutoryapplications pending appeal.[12] She also notes that r 20.20 is not engaged, as it only applies where a party hasmade a payment pursuant to a judgment or order that is overturned on appeal.Principles[13] Rule 14.8 of the High Court Rules 2016 relevantly provides:"14.8 Costs on interlocutory applications(1) Costs on an opposed interlocutory application, unless there are specialreasons to the contrary,—(a) must be fixed in accordance with these rules when theapplication is determined; and(b) become payable when they are fixed.(2) Despite subclause (1), the court may reverse, discharge, or vary anorder for costs on an interlocutory application if satisfied subsequentlythat the original order should not have been made."11 See Walker v Castlereagh Properties Ltd [2015] NZHC 907, [2015] NZAR 944 at [43]-[45].[14] Most cases invoking r 14.8(2) involve a party seeking to reverse an adversecosts order after successfully appealing the interlocutory decision.12 The rationalebehind r 14.8 is that the merits of particular applications and those of the substantiveproceeding are different matters.13 The issues in the interlocutory application beforeme were discrete from the larger questions before Gault J about the District Courtorders.[15] The Police were the successful party and therefore entitled to costs. I am notsatisfied the costs order was inappropriate. I will not revisit the order.Result[16] The application is dismissed.Moore JSolicitors:Meredith Connell, AucklandCopy to:The Applicant12 Palmerston North City Council v Hardiway Enterprises Ltd (struck off) [2018] NZHC 3005 at [6].13 Chapman v Badon Limited [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].