IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2018-404-2427
[2019] NZHC 1019	

UNDER	the Judicial Review Procedure Act 2016	
BETWEEN	GLENN GREEN
Applicant	
AND	NEW ZEALAND POLICE
Respondent	

On the papers		
Appearances:	Applicant, Self-represented J Simpson for Respondent	
Judgment:	30 May 2019	

COSTS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 30 May 2019 at 2.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

GREEN v NEW ZEALAND POLICE [2019] NZHC 1019 [30 May 2019]

[1]	On 5 April 2019, I gave a judgment striking out an application for judicial review by Glenn Green and reserved the question of costs for consideration on the basis 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 making of 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, his application for bail pending trial was opposed by the Police. The grounds for opposition were set out in a standard form, POL 128 08/10, which is routinely completed by the Police when an application for court bail is opposed.

[4]	Judge L Tremewan declined to grant bail, giving her reasons in a considered judgment.2 Mr Green appealed against the refusal of bail but subsequently abandoned the 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 of the 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 - 5.35 of the High Court Rules 2016; and

(c)	an order directing that the Police "be investigated for crimes under the Crimes 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 fabricated the completed form by including false and misleading information about his prior convictions and presented it to the District Court "to obtain a pecuniary advantage".

[7]	In considering the application by the  New  Zealand  Police  to  strike  out  Mr Green's claim, I held:

(a)	The proffering of the bail opposition form did not amount to the exercise of a statutory power of decision susceptible to review under the Judicial Review Procedure Act 2016;3

(b)	The Court did not, in any event, have the power to "strike out" the opposition to bail form nor to direct an investigation into spurious allegations of criminal behaviour by Police officers;4 and

(c)	The claim was an abuse of the process of the Court because the real thrust of the proceeding was to challenge Judge Tremewan's decision to decline bail to Mr Green and that an appeal against the District Court decision was the appropriate procedure for reviewing it.5

Discussion

[8]	In his succinct memorandum in support of the respondent's application for costs, relying on the general principle that a party who fails with respect to an interlocutory application should pay costs to the party who succeeds,6 Mr Simpson calculates that 2B costs of $8,808.50 and disbursements of $250 would be available to the respondent under the costs schedule. He notes, however, that the respondent's actual costs amounted to only $3,270 (including disbursements). In accordance with r 14.2(1)(f), a party may not recover a greater amount of costs than those actually incurred.

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 believes that his case would have had reasonable success had a lawyer represented him because he struggled with the legal authorities and was severely disadvantaged representing himself in the proceeding from prison. Mr Green says that because he was not legally aided or represented, the costs should not be awarded as his claim was not frivolous or vexatious in any way and, based on the material put before the Court, showed some merit.

[10]	I do not know whether Mr Green sought legal advice before issuing the proceeding. I have no doubt that any lawyer he consulted would have told him that his case was hopeless in that it was entirely misconceived and had no prospect of success. Moreover, Mr Green would have had an opportunity to present to the Court all of the arguments which he proposed to make in this proceeding if he had not abandoned the appeal proceeding he had begun.

[11]	All matters relating to costs are in the discretion of the Court.7 The exercise of the Court's discretion is informed by rr 14.2 to 14.10 and the principles applied  by    r 14.2 are particularly important.

[12]	Rules 14.2(1)(d) and (e) give definition to the long-standing principle that, in New Zealand, costs are to represent a reasonable contribution to costs actually and reasonably 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 the proceeding or interlocutory application:

(e)	what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually 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. To the extent that the prospect of an award of costs being made against an unsuccessful party may operate as a barrier to access to justice, the interests of prospective plaintiffs are balanced against the interests of prospective defendants by the application of the rules for calculating the amount of costs payable by reference to complexity and significance of the case assessed objectively rather than by reference to the costs actually incurred. Moreover, the daily recovery rates provided in Schedule 2 of the Rules are intended broadly to approximate two-thirds of the rates that New Zealand practitioners in the relevant category currently charge to clients.9

[14]	The ability of an unsuccessful party to make a contribution to the costs of the successful party is not a factor listed in the general principles applying to the determination of costs, set out in r 14.2.

[15]	As the learned authors of McGechan explain, a regime providing for less than full costs recovery is intended in part to balance access to justice against the interests of the successful party who might otherwise end up "seriously out of pocket in terms of its litigation costs".10 It might also be said that declining to make a costs order against a successful party, in a case having no merit, despite which the successful party was obliged to incur costs in resisting the proceeding, would provide an undesirable incentive to impecunious potential litigants to pursue hopeless cases. The time for consideration of an unsuccessful litigant's ability to meet a costs order properly made is when the successful party takes steps to enforce the order.

[16]	In this case, the respondent, its solicitors and counsel took reasonable and appropriate steps to bring an end to a proceeding which should never have been brought in the first place and which, had it continued, would have resulted in a waste of the Court's and the parties' resources.

[17]	Mr Green's proposition that his claim had merit is a challenge, without foundation, to the findings which led to the order striking out the proceeding. He asserts that his claim would at least have been arguable if he had had the benefit of

9	McGechan at HR 14.4.01.
10	At 14.2.01(4).

representation by counsel. Accepting that proposition would be to attribute to the legal profession powers of invigoration of a kind described in the Scriptures.

Order

[18]	I direct that Mr Green shall pay the New Zealand Police costs and disbursements in the sum of $3,270.

..................................................
Toogood J