IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-330 [2015] NZHC 181

UNDER	the Judicature Amendment Act 1972	

IN THE MATTER OF	
decisions regarding the use of the Drager Model 9510NZ breath alcohol testing device	

BETWEEN	
ANDREW RICHARD KEENAN Plaintiff	

AND	
ATTORNEY-GENERAL Defendant	

Hearing:	16 February 2015
(On the papers)	

Counsel:	
C Persson for Plaintiff
K Ericson for Defendant	

Judgment:	
16 February 2015	

JUDGMENT OF MANDER J

[1]       On 30 November 2014, the plaintiff discontinued his proceeding challenging the police’s use of a breath alcohol device.  The plaintiff was the subject of a blood alcohol prosecution in the District Court in which the breath alcohol device had been used prior to his election to have a blood test.  The defendant seeks costs in the wake of the discontinuance.

[2]       Pending the hearing of the judicial review application, the plaintiff made application for interim relief, seeking a declaration in this Court that the police ought not continue with the prosecution until the proceeding in this Court had been determined.   I took the view that in the absence of an application to the District Court  seized  of  the  prosecution  to  adjourn  the  hearing  of  the  charge,  it  was
premature to be making an application for relief to this Court.   In the event, the

KEENAN v ATTORNEY-GENERAL [2015] NZHC 181 [16 February 2015]

District Court was amenable to a stay of the criminal proceeding until the judicial review application could be determined.

[3]       The plaintiff’s challenge relied upon a document drafted by the defendant entitled Request for Proposal – TN/08/08 (tender document).  This document invited manufacturers and suppliers to submit tenders to supply police with breath testing devices.  Under the heading “Tender Response Requirements” the document listed what was described as mandatory criteria including certain software requirements. As part of those requirements it stated that the evidential breath test result must be displayed by the testing device in a certain way and the printout take a particular form.  It was the plaintiff’s case that the printout obtained from the device at the time he  was  the  subject  of  an  evidential  breath  test  did  not  comply  with  these requirements.

[4]       The plaintiff claimed that the mandatory requirement set out in the tender document created a legitimate expectation on his part that the printout obtained when the device was used would be consistent with the requirements set out in that document.  The plaintiff in his pleadings described the requirements as “mandatory operational requirements”.  The plaintiff pleaded that the decision to use the testing device to conduct the breath test was “flawed or invalid or unauthorised”.  Further, that  the  decision  to  initiate  and  continue  the  prosecution  was  likewise  invalid. Similar allegations were made under the heading of mistake of fact, alleging that the defendant failed to recognise the use of the breath testing device was non-compliant with the so-called “applicable mandatory operational requirements”.  It was claimed that no reasonable prosecuting authority in the position of the defendant would act in reliance upon the device, and that the initiation and continuation of the prosecution amounted to an abuse of process.

[5]       In the course of the proceeding, the plaintiff made application for further discovery.   The plaintiff sought documentation in respect of some 39 topics.   The information sought included reasons and factors taken into account in the decision to seek   new   testing   devices,   the   factors   taken   into   account,   including   any documentation relating to the decision to recommend that the Minister approve the devices, and details of tests undertaken in respect of the evidential device and the

result of those tests prior to the recommendation and/or decision  to  deploy the device.    I described  the plaintiff’s  application  as  having  all  the hallmarks  of  a “fishing expedition” which was neither focussed upon, nor appropriately referable to the allegations as pleaded.  The application included requests for information more properly the subject of interrogatories, and included requests for information relating to other breath testing devices.   The plaintiff’s application sought to introduce considerations  relating  to  the  Official  Information Act  1982  and  conflated  two separate  processes;  one  governed  by  that  Act,  the  other  by  the  Judicature Amendment Act 1972 and Part 8 of the High Court Rules.

[6]       Comparatively confined orders for discovery were made limited to the device in question and, in particular, documentation that was in the possession of the defendant as it related to the display/output and/or printout features of the device.

[7]       The defendant seeks costs and disbursements on a 2A basis.  In support of his application, the defendant emphasised the general principle that “costs follow the event” and that the unsuccessful party should pay costs subject to the overriding consideration  that  all  matters of costs  are  at  the discretion  of the Court.1     The defendant submitted that an award of costs is consistent with the principle that so far as possible the determination of costs should be predictable and expeditious.2

[8]       The defendant submitted that costs should lie where they fall in respect of the application for discovery as both parties could claim some success as a result of that interlocutory application.    Costs,  however,  are  claimed  for  the  provision  of  the discovery itself on the basis that such costs would have, in any event, been incurred by the defendant notwithstanding the stance taken to the application for discovery itself.

[9]       The plaintiff opposes the application made by the defendant for costs.   He claimed that the proceeding concerned a matter of public interest, and that he acted reasonably in the conduct of the proceeding.  Further, he continues to maintain that
the application for review had merit notwithstanding the decision to discontinue.

1	High Court Rules, r 14.1.
2	Rule 14.2(g).

[10]     The plaintiff claimed that it was as a result of the discovery process that information was obtained which, to paraphrase the plaintiff’s submission, revealed that an employee of the defendant changed the previously mandatory minimum requirements contained in the relied upon “tender document”.  The plaintiff claims that costs incurred by the defendant in fact flow from the defendant’s failure to state that  the  police  had  changed  the  “mandatory  requirements  criteria”  which  only became known to the plaintiff as a result of the discovery orders.

[11]     The plaintiff also maintained that the proceeding concerned a matter of public interest and had potential ramifications for other prosecutions involving driving with excess  breath  alcohol.     In  support  of  that  submission  he  cites  New  Health New Zealand Inc v South Taranaki District Council, where Heath J examined a number of relevant considerations which included whether the proceeding concerned a matter of genuine public interest, in addition to whether the unsuccessful litigant had acted reasonably, and whether the claim made by the unsuccessful litigant had
merit.3

[12]     The plaintiff ’s application for judicial review of the police’s use of the testing device and its reliance on the results obtained as part of the testing procedure was made in the knowledge of the statutory restriction on challenging the reliability or accuracy of the result of such a device.4   Similarly, the plaintiff also recognised the effect of the Supreme Court’s decision in Aylwin v Police, where the Supreme Court held that the accuracy, reliability or procedural propriety of a breath testing device cannot be considered unless the failings are so manifest that in reality no breath test was carried out at all.5

[13]     The plaintiff recognised in his statement of claim that the evidential breath test could not be challenged in a prosecution brought before the District Court. What the plaintiff sought to do was effectively bring a collateral attack on the accuracy of the testing device which was not otherwise available to him in defence of the charge
in the District Court.

3	New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 993.
4	Land Transport Act 1998, s 64(4) and (5).
5	Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.

[14]     The collateral nature of the plaintiff’s challenge of itself is no impediment to testing  by  way  of  judicial  review  the  exercise  of  a  statutory  or  public  power, however,  the plaintiff ’s  challenge in  the circumstances  of this  case  was  at  best speculative, if not misconceived.   The plaintiff’s case rested entirely upon the proposition that requirements included by the police in its tender document irrevocably prescribed the mandatory requirements of how any device ultimately chosen must function.  This, notwithstanding the evidential breath testing device in question having subsequently been approved for the purpose of evidential breath tests by the Minister of Police under the Land Transport (Breath Tests) Notice 2009 (CR 2009/386).

[15]     The plaintiff sought to apply the label “applicable mandatory operational requirements”  to  the  content  of  what  was  sought  by  the  police  in  its  tender document.   As observed in my judgment relating to the plaintiff’s application for discovery, the foundation upon which the plaintiff’s case rested required a substantial leap in order to convert the contents of a commercial tender document to the self- described legitimate expectation on the part of the plaintiff that this was how any breath testing device subsequently deployed by the police would have to operate, and
so it proved.6

[16]     Leaving for present purposes the issue of what may have been ultimately discovered, it is apparent that the plaintiff chose to challenge the police’s deployment of the breath testing device on an entirely unsound basis, which by itself was never capable of providing a sufficient foundation to successfully judicially review the deployment by the police of the breath alcohol device.  The discovery process only resulted in confirmation of the inadequate and speculative nature of the plaintiff’s challenge.

[17]     I am therefore firmly of the view that an award of costs is appropriate.  The plaintiff accepts the defendant’s categorisation of the proceeding and the applicable time band applied to his calculation of costs and disbursements on a 2A basis.  These amount to $7,263.50 and $1,214.27 respectively.   Total costs and disbursements
claimed are $8,477.77.

6	Keenan v Attorney-General [2014] NZHC 1649 at [21].

[18]     The  plaintiff  in  reply  has  sought  an  award  of  costs  in  respect  of  his application for discovery.  Limited orders were made, however, these were on a far more restricted basis than sought by the plaintiff.  Costs therefore appropriately lie where they fall, and I decline to make any award of costs as sought by the plaintiff in respect of his discovery application.

[19]     The plaintiff contests the defendant’s claim for accommodation, travel and taxi disbursements arising out of the attendance of out of town counsel for the purposes of the application for interim relief.  I note that at the time of the plaintiff’s application it was claimed that the plaintiff’s challenge had the potential to affect other cases, and the District Court had been placed on notice in that regard.   The plaintiff’s challenge necessarily required the involvement of Police National Headquarters based in Wellington.   It is unsurprising therefore that Wellington counsel attended in person for the purposes of the hearing of the stay application set down for hearing with some urgency.

[20]     The  plaintiff  has  sought  to  categorise  the  judicial  review  challenge  as involving a matter of public interest litigation.   While I accept that proceedings which raise important questions about the legality of actions and processes followed by public bodies, particularly law enforcement organisations, the present proceeding never realistically raised issues of merit capable of being considered  matters of genuine public interest.

[21]     Accordingly, I make orders for the award of scale costs on a 2A basis in the sum of $7,263.50 and disbursements in the sum of $1,214.27, in accordance with the schedule annexed to the defendant’s memorandum of 28 November 2014.

Solicitors:
P J Doody, Christchurch
Crown Law, Wellington