IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2023-404-2716
[2024] NZHC 2456	

BETWEEN	ROBERT ALFRED STEVENSON
Plaintiff	
AND	THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
First Defendant	
AND	SERCO NEW ZEALAND LIMITED
Second Defendant	

Hearing:	on the papers	
Counsel/ Representation:	plaintiff in person
H T Reid for first defendant
A J McElhinney for second defendant	
Judgment:	29 August 2024	

JUDGMENT OF JOHNSTONE J
(costs)

This judgment was delivered by me on 29 August 2024 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
MC, Auckland
Wotton Kearney, Auckland

STEVENSON v DEPARTMENT OF CORRECTIONS [2024] NZHC 2456 [29 August 2024]

[1]	The second defendant, Serco New Zealand Limited, seeks an award of costs following the dismissal of an application by the plaintiff, Robert Stevenson, to consolidate a future exemplary damages claim for false imprisonment with this proceeding.

[2]	Mr Stevenson opposes.

Background

[3]	On 21 March 2024, Wilkinson-Smith J made timetable directions in this proceeding following a case management conference. Amongst other things, the timetable called for:

(a)	any	interlocutory	application	(including	any	application	for consolidation) to be made by 1 July 2024; and

(b)	a case management teleconference on the next available date after    15 July 2024.

[4]	By memorandum dated 3 June 2024, Mr Stevenson sought extension of the former  direction.  The  defendants  filed  a  joint  memorandum   opposing extension. Justice Gordon refused the extension by minute dated 17 June 2024.

[5]	Mr Stevenson filed his consolidation application on 29 June 2024. Serco filed a notice of opposition dated 15 July 2024.

[6]	The defendants filed a joint memorandum for the case management teleconference, which had been set for 18 July 2024 before me, seeking a further case management direction as to discovery, and further that the consolidation application be struck out.

[7]	The 18 July 2024 case management teleconference could not proceed in any substantive way. Conflict arose with Mr Stevenson’s parole hearing held that same morning. I rescheduled the conference for 30 July 2024, seeking further submissions from the defendants on timetabling for trial and an explanation of the conflict.

[8]	On 30 July 2024, I dismissed Mr Stevenson’s application, it not being possible to consolidate proceedings which have not as yet been filed.

Serco’s costs application

[9]	Serco seeks an award of 2B scale costs, related solely to the step of filing its notice of opposition to the consolidation application. It calculates those costs by reference to the 0.6-day time allocation relating to that step, and the daily recoverable rate of $2,390, set out in the High Court Rules 2016. It refers to r 14.8 of those Rules, which provides that, unless there are special reasons to the contrary, costs on an opposed interlocutory application must be fixed when the application is determined. It further submits that the consolidation application was flawed.

Mr Stevenson’s position

[10]	Mr Stevenson submits in opposition that when making his consolidation application he was acting in accordance with the directions of Gordon J. He further submits that the awarding of costs against him “amount[s] to nothing more that (sic) scare tactics and intimidation to disuade (sic) the plaintiff from pursuing the justice he is entitled to, from those who have breached his rights and treated him very badly”. He develops the latter point by referring to other cases in which he has been involved, asserting that the conduct there of Crown entities allowed the Judges concerned to fall into error.

Decision

[11]	Justice Gordon’s directions did not require Mr Stevenson to file his consolidation application. They were addressed to Mr Stevenson’s application for an extension of time in which to file any interlocutory application in this proceeding he was minded to file, whether for consolidation or not. The Judge stated:

[6]	I do not consider Mr Stevenson’s memorandum discloses a good reason as to why he cannot file an interlocutory application (for consolidation or otherwise) by 1 July 2024.

[7]	The application for an extension of time is dismissed.

[12]	Clearly, it remained Mr Stevenson’s decision whether to file any interlocutory application. His decision to file a consolidation application which had no prospect of success, there being no existing proceeding with which this proceeding might be consolidated, caused Serco reasonably to incur the expense of filing an opposition.

Result

[13]	Mr Stevenson is to pay Serco costs in respect of this application for consolidation dated 29 June 2024, in the sum of $1,434.00.

Johnstone J