THE DEPUTY CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MCCORKINDALE [2020] NZHC 3197

THE DEPUTY CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MCCORKINDALE[2020] NZHC 3197 [4 December 2020]NOTE: SUPPRESSION ORDERS MADE BY THE HIGH COURT IN S2/99(SEE FOOTNOTE 3) REMAIN IN FORCE.IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-409-1237[2020] NZHC 3197BETWEEN THE DEPUTY CHIEF EXECUTIVE OFTHE DEPARTMENT OF CORRECTIONSApplicantAND ROBERT JOHN MCCORKINDALERespondentOn the papersCounsel: C J Boshier for the applicantM Starling for the respondentJudgment: 4 December 2020JUDGMENT OF CULL J[On costs][1] Following the judgment of 22 September 2020,1 Counsel for Mr McCorkindalehas filed a memorandum seeking legal aid costs. The Department of Corrections hasfiled a memorandum in opposition.[2] In the September judgment, the Court declined the application of the ChiefExecutive of the Department of Corrections to issue Mr McCorkindale with a publicprotection order (PPO) under the Public Safety (Public Protection Orders) Act2014. The Court held that although Mr McCorkindale met the threshold test in s 13of that Act, his risk can be adequately managed and mitigated by the existing extendedsupervision order (ESO) issued under the Parole Act 2002, with special conditions. A1 The Department of Corrections v McCorkindale [2020] NZHC 2484.PPO was therefore not the least restrictive order in the circumstances, and theapplication was declined.[3] Mr McCorkindale was therefore successful in the proceedings. He was legallyaided at all times. Legal aid has asked Mr Starling, present Counsel forMr McCorkindale, to seek to recover the money paid in the most recent proceedingsand the original proceedings when the High Court made the PPO.[4] The background is necessary to explain the procedural history. In May 1999,Mr McCorkindale was sentenced to seven years' imprisonment having pleaded guiltyto five charges of indecent assault. He served the entirety of his sentence and has sincebeen managed in the community under two successive ESOs. He is currently subjectto the second ESO.[5] The restrictions available for ESOs changed in 2014, which promptedCorrections' to apply for a PPO for Mr McCorkindale in December 2016. A PPOimposes further restrictions than an ESO.[6] The PPO application was heard by the High Court in July 2017 and a PPO wasgranted in October (the original proceeding). Mr McCorkindale appealed. The Courtof Appeal quashed the PPO and remitted the matter back to the High Court forreconsideration (the Court of Appeal proceeding). The reconsideration for the PPOapplication came before this Court in August 2020. As noted, the Court declined theapplication (the recent proceeding).[7] Mr McCorkindale seeks legal aid costs for all three parts of the proceedings.Mr Starling submits the total legal aid invoiced on behalf of Mr McCorkindale is asfollows:(a) Original proceeding: $21,153.50 paid (includes $14,950 for expertcosts).(b) Court of Appeal proceeding: $9,013.20 paid (includes travel andaccommodation disbursements).(c) Recent proceeding: $33,056.75 invoiced (includes $19,320 for expertcosts).[8] Corrections resists the claim for costs on the basis that the public interestexception in r 14.7(e) of the High Court Rules 2016 applies and the Court of Appealcosts cannot properly be claimed in the High Court.Decision[9] Generally, the party who fails in a proceeding should pay costs to the partywho succeeds.2 This also reflects the rule that as far as possible, the determination ofcosts should be predictable and expeditious.3[10] There are, however, as Ms Boshier for Corrections submits, exceptions to thegeneral rule. In this case, she submits that r 14.7(e) of the High Court Rules is relevant.Rule 14.7(e) provides that the Court may refuse to make an order for costs or mayreduce the costs otherwise payable if the proceeding concerned a matter of publicinterest and the party opposing costs acted reasonably in the conduct of the proceeding.[11] For the r 14.7(e) exception to apply, the courts have generally held that theproceedings must have merit and involve a matter of genuine public interest andimportance beyond the interests of the particular unsuccessful litigant, who must alsohave acted reasonably in the conduct of the proceeding.4[12] Clearly, the proceedings cannot be categorised as unmeritorious. Each courtdealing with this matter found that the statutory test in s 13 of the Public Safety Actwas satisfied for a PPO to be imposed. The issue to be determined was ultimately anexercise of the Court's discretion – even though Mr McCorkindale met the statutorytest and a PPO could be imposed, should it be? This is important in determiningwhether the proceedings involved a matter of genuine public interest and importance.Because Mr McCorkindale has been found to be at very high risk of imminent serious2 High Court Rules 2016, r 14.2(1)(a).3 Rules 14.2(1)(g).4 Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010at [9]; affirmed in New Zealand Climate Science Education Trust v National Institute of Water andAtmosphere Research Ltd [2013] NZCA 555 at [11].sexual offending, I accept that it was appropriate for Corrections to bring theproceeding. It involved a matter of public interest beyond the interests of the partiesinvolved, and the application itself had merit.[13] Corrections unsuccessfully contested the recent proceeding, including callinga Corrections' employee whose evidence amounted to telling the Court it must ordera PPO. Nevertheless, the overall conduct of the proceeding was reasonable. Thisincluded Ms Boshier leading the evidence of Ms Voice from the Salisbury StreetFoundation. Ms Boshier did so following my direction that I wished to hear from her.[14] I consider, however, that the application of r 14.7(e) does not mean that costsshould lie where they fall. Ms Boshier submits Corrections should not be discouragedfrom bringing, in the interests of public safety, meritorious applications by having toconsider costs implications as part of the decision-making process. She submits thistype of litigation is precisely the type envisaged by the public interest exception inr 14.7(e), given the clear objective of the Public Safety Act, and costs should remainwith the parties.[15] The fact remains that Corrections has been unsuccessful in its application,despite submitting strongly that a PPO legally must be ordered in the circumstances.The issue was a discretionary one for the Court. Rule 14.7 gives the Court a discretionto make an order for costs or reduce costs even where the proceeding concerns a matterof public interest and the party opposing acting reasonably. Taking all thecircumstances into consideration, I consider it is in the interests of fairness that costsbe awarded, but with a reduction to reflect the assistance Counsel for Corrections gaveto the conduct of the hearing. I consider costs should be reduced by 25 per cent.[16] Turning to the figures, the parties also have not been able to agree on theamounts due for each proceeding. Counsel for Mr McCorkindale has not filed aschedule itemising the costs sought so it is not clear what exactly is being sought ascosts and what is being sought as disbursements.[17] The normal process for calculating both costs and disbursements is for the coststo be outlined in a schedule following schedule 3 of the High Court Rules and fordisbursements to be itemised with invoices attached. Neither has been submitted hereby Mr Starling. In order to finalise matters, I therefore request that Mr Starling filefurther submissions itemising the costs and disbursements sought for each proceeding,and for Ms Boshier to reply.[18] If it helps the parties, my preliminary view as to the original and Court ofAppeal proceeding is to grant an order for the costs of the original proceeding of$21,253.50, including the $14,950 for expert costs, but refuse to order costs for theCourt of Appeal proceeding on the basis that I am not aware, either by virtue of statuteor otherwise, of this Court's jurisdiction to order costs in respect of a Court of Appealproceeding.[19] Turning to the most recent proceeding, I accept Ms Boshier's submission thatwithout a breakdown of the costs sought it is not possible to tell whether steps claimedfor in the original proceeding have also been claimed in the recent proceeding, inrespect of the same evidence. Where the same expert has been instructed twice in thesame proceeding, itemisation is reasonably necessary to identify and avoid aduplication of costs incurred. For example, Mr McCorkindale's expert Mr Metuoigave evidence in both proceedings and Mr Starling requests expert costs in both.While distinct costs would be incurred for Mr Metuoi to consider the alternative optionof an ESO at Salisbury Street Foundation, which had not been canvassed before theoriginal High Court judge, it is unclear whether there was repetition of other mattersin that evidence that should not be part of the recent proceeding's claim.[20] I therefore have not been able to come to a preliminary view on the costs forthe recent proceeding without the itemisation in accordance with schedule 3. I requestthat the parties come back to the Court on this issue. However, my preliminary viewin respect of the expert costs, without any specific details, is that I am inclined toreduce the figure claimed in the recent proceedings from $19,320 to $15,000 to reflectany duplication that may have occurred. I also accept Ms Boshier's submission that$4,780 should be deducted for the interim detention order application, whichMr McCorkindale unsuccessfully opposed.[21] The final figure of costs for both the original and recent proceeding is then tobe reduced by 25 per cent to reflect the public interest factor in bringing the applicationand its merit.Result[22] The application for legal aid costs is granted.[23] I order a 25 per cent reduction in costs sought to reflect the public interest inCorrections bringing the application.[24] As counsel are still unable to agree on the amount of costs, I direct Counsel forMr McCorkindale to file a further memorandum within five working days itemisingthe costs and disbursements sought for each proceeding in accordance with schedule3 of the High Court Rules. In the absence of agreement, Counsel for Corrections is toreply within a further five working days. Memoranda are to be no more than fivepages.Cull JSolicitors:Raymond Donnelly & Co, Christchurch for the CrownMichael Starling, Christchurch for the Respondent