Wang v District Court of New Zealand [2015] NZHC 1611 (10 July 2015)

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UNDER	the Judicature Amendment Act 1972
IN THE MATTER	of an application for judicial review
BETWEEN	SHEN WANG First Plaintiff QUIONG YAO QIU Second Plaintiff
AND	THE DISTRICT COURT OF NEW ZEALAND, SITTING AT THE NORTH SHORE AND AUCKLAND First Defendant TIAN HONG WANG Second Defendant

Hearing:	On the papers
Appearances:	F C Deliu for Plaintiffs No appearance by or on behalf of First and Second Defendants
_Judgment:	_{10 July 2015}

This judgment was delivered by me on Thursday, 10 July 2015 at 2.00 pm pursuant to r 11.5 of the High Court Rules.

[1] On 6 November 2014, I issued judgment for the plaintiffs, allowing a judicial review of the North Shore District Court’s decision to accept charging documents issued by a private prosecutor, who is the second defendant, Mr Tianhong Wang.¹

[2] The judicial review was allowed on the basis that the charge was not a representative charge in terms of s 20(2) of the Criminal Procedure Act 2011, defects in the formal statements of Mr Wang and the lack of consideration of the position of the two defendants separately.

[3] The plaintiffs, Shen Wang and Qiong Yao Qiu now seek costs against the North Shore District Court, who did not defend the proceedings and abided the decision of this Court. They also seek costs against Mr Wang, who also abided the decision.

[4] While acknowledging the long line of authority which prevents an order for costs against a decision-maker who correctly abides by a decision, counsel for the plaintiff, Mr Deliu, submits that in the current case costs are justified because:

(a) This is the second time in a year that judicial review proceedings have been successfully brought against the Court;²

(b) The sheer number of errors by the Court were extraordinary and require accountability, including errors as to representative charging, declaration of truth, signing and dating, English transliteration, inadmissible hearsay, consideration of each defendant individually

(c) That the principle set out in Attorney-General v Chapman, that “remedial protection” is obtained through appellate recourse and complaints³should apply equally to judicial review, as it is analogous to appellate recourse. If judicial accountability is best accomplished though further litigation, then there is no reason principally why the courts’ ancillary costs jurisdiction would not further accomplish this public policy goal. A costs award would to some extent remedy the plaintiffs’ financial losses and would send a message to the inferior

[5] Mr Deliu submits that, as well, the second defendant should face a costs award. Although Mr Wang also abided by the decision of this Court, Mr Deliu submits that he could have gone further and consented to the judicial review.

[6] The Crown, for the District Court, submits that costs and disbursements cannot be awarded against the District Court, as they were decisions of a judicial officer and do not meet the threshold for awards against a judicial officer. That threshold is said to be as expressed in Coroner’s Court v Newton:⁴

... Costs will only be awarded (even in judicial review proceedings) against judicial officers such as Justices or Coroners in the rarest of circumstances when such a judicial officer has done something which calls for strong disapproval. It is certainly not the practice to grant costs against Justices or a Coroner merely because that person has made a mistake in law. It must be shown that the judicial officer concerned has acted perversely, oppressively or in bad faith.

[7] It is submitted that the decision of the District Court does not fall into the “rarest of circumstances” which would call for strong disapproval signalled by a costs order in this Court. The test is not whether there are errors of process, but whether an order for costs is necessary to express disapproval of the conduct of the

[8] The errors identified were of law and process only, and do not constitute bad faith, or perverse or oppressive conduct. It is also submitted that before this Court, the District Court correctly abided the decision of the Court in this matter.

[9] In relation to the discrete points raised by the plaintiff, counsel submits:

(a) That the plaintiffs were already compensated with costs in the first proceeding against the District Court that they were successful with, by obtaining costs against the second defendant in that proceeding. There is therefore no basis to suggest that adds to the need for compensation here.

(b) The errors made were not extraordinary, nor were there an extraordinary number. Although Judge Pippa Sinclair in the District Court made errors, her Honour exercised her discretion with regard to the charges and the application of the statute as she was required to do as a judicial officer.

[10] The leading case on awarding costs against judicial officers remains Coroner’s Court v Newton. The Court of Appeal’s decision, as noted by Faire J, considered “a number of authorities including the decision of the Full Court of the High Court of Elias CJ and Salmon J in Brown v Maori Appellate Court.⁶” as well as international authority.

[11] That case is clear as to principle. Costs will not be awarded against a Court for an error of law, but require proving that a judicial officer has acted perversely, oppressively or in bad faith. Cases falling into this category, requiring the strong

⁷Coroner’s Court, above n 4, at [46]; U v Legal Complaints Review Officer HC Auckland CIV-

[12] Mr Deliu’s submissions invite this Court to find that the number of errors in the District Court’s judgment in this case, and the fact that the Court has made other mistakes this year, meet the high standard to warrant costs being awarded against the Court.

[13] Looking at the test as expressed above, it is clear that the Court of Appeal did not envisage errors of law meeting the standard for costs against a judicial officer where the relevant judicial officers had a genuine belief in the correctness of their position. As acknowledged by the Crown, the Judge in this case carried out her duties as she was required to do. There appears to be no suggestion that her Honour’s decision was made with bad faith or with any interest other than following her duties as a judicial officer.

[14] Given that, I do not consider that Judge Pippa Sinclair’s decisions can be cast in a light which brings them within the strict boundaries set out by Coroner’s Court. Although a number of errors were identified in the Judge’s decision, there were not an extraordinary number so as to raise any speculation of bad faith or perverse action. Neither does the fact that the Court has made other errors point in any way to bad faith or perverse or oppressive decision-making outside the scope of typical errors in law.

[15] Neither of these grounds, therefore, provides a basis for a costs award against the District Court.

[16] Mr Deliu’s final submission is that Attorney-General v Chapman has changed the position as expressed in Coroner’s Court v Newton, and that this Court should now principally extend the ability to claim costs from judicial officers. This is said to be required because the Supreme Court in Chapman recognised that the value of the ability to appeal decisions. Given the value placed on judicial accountability via appeal, Mr Deliu suggests that allowing costs against courts would further the same public policy goal by encouraging appeals.

[17] I do not consider that the reasoning in Chapman supports this conclusion. In context, the majority in Chapman commented on the value and ability of appeal rights as a reason for excluding damages awards against the government for breaches of the Bill of Rights by the judiciary. Their noting of the appeal rights available to parties was to demonstrate that other remedies, aside from damages against the judiciary, are available to complainants whose rights have been injured. The availability of other remedies was weighted alongside policy reasons such as the “desirability of finality in litigation and the importance of judicial independence and public confidence in that independence” in finding that Bill of Rights Act damages

[18] This does not directly engage with or affect the reasoning process of Coroner’s Court in any way. The general principle which underlined that judgment, as explicitly noted by the Court of Appeal, was that the order for costs where a judicial officer has abided by a decision is “an expression of disapproval of the conduct of the judicial officer in character”.⁹This principle is not encroached on by acknowledging the value of appeal rights.

[19] Although Chapman saw appeal rights as important, the Court was not urging that more appeals be brought to ensure judicial accountability, but merely highlighting the existence of appeal as a pathway to accountability. Further, the Supreme Court saw successful appeals as a good in and of themselves, not needing to be supplemented by damages awards against the Crown. A similar principle can be applied to costs awards. The plaintiffs have succeeded here on their overall claim. They are not entitled to costs against the Court, which did not oppose the application and thus lessened the overall costs the defendant would otherwise have to pay, on top of that.

[20] Even if the Supreme Court decision did require reconsidering the basis on which the Court of Appeal decision was made, the High Court remains bound by

_{Court of Appeal authority.}¹⁰_{Finally, for
completeness, I note that a number of cases}

¹⁰Couch v Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149 at [207] per McGrath J.

have applied Coroner’s Court subsequently to Chapman being released without difficulty.¹¹

[21] No submissions have been received from the second defendant in response to the assertion that they should also be liable for costs despite abiding by the decision. The appellant’s submissions state only that costs should be allowed because Mr Wang did not go further and consent to the judicial review which would have sped up the process considerably.

[22] In Kawerau Holdings Ltd v Queenstown Lakes District Council, French J considered comments of Chambers J, which suggested that costs were liable where parties “elected to bring or defend proceedings and have adopted a stance in those proceedings which a court has found to be unjustified”.¹²

[18] In so far as these comments could be interpreted as meaning that a person who abides the decision of the Court can never be liable for any costs, I must respectfully disagree. That would be too absolute a proposition. Ultimately, the task of the Court is to make an assessment of overall justice as between the particular parties. On the facts of this case, where the Council made a very fundamental and serious error which necessitated the issuing of proceedings, I consider the council should make a contribution. However, because it responsibly did not defend the proceeding, its liability should be limited to 20% of the costs and disbursements, excluding the costs of the experts.

[24] In both Kawerau Holdings and Sutton v Canterbury Regional Council the Court held that it was unjust to impose joint and several liability for costs on a party who elected not to oppose and participate in these proceedings.¹⁴Both cases

¹²Beach Road Preservation Society Inc v Whangarei District Council [2001] NZHC 811; (2001) 16 PRNZ 13 (HC) at

¹³Kawerau Holdings Ltd v Queenstown Lakes District Council HC Invercargill CIV-2008-425-

¹⁴Kawerau Holdings, above n 13, at [18]; Sutton v Canterbury Regional Council [2015] NZHC

Councils who had made a “very fundamental and serious error which necessitated

[25] In Deliu v Hong, Winkelmann J held that Mr Deliu was not entitled to costs where neither defendant took an active role in proceedings. One of those defendants was the LCRO, who as in this case fell within the protection for judicial officers under Coroner’s Court, and the other was the original complainant who had chosen not to challenge the decision. Winkelmann J found that awarding no costs was consistent with the overall justice between the parties, given the dicta of Chambers J

[26] I have not found any cases suggesting that defendants are obliged to actively consent to judicial review in order to protect themselves from adverse costs claims. The inference from the cases discussed above is that where the defendant abides the Court’s decision and does not adopt an unreasonable position, they will not necessarily be required to bear the full costs of court proceedings.

[27] In this case, given that Mr Wang did not oppose the proceeding and abided by the decision of the Court, I consider it is unfair to require him to be liable for the costs of the proceeding. Although Mr Wang could have consented rather than just “not opposed”, some court time would still have been required to consider the correct legal position, which would not be assumed to fall with the plaintiffs merely as the only represented party. Further, Mr Wang indicated that he would abide the Court decision even before submissions were filed. This was prompt, and appears to have been a reasonable position to take. I do not consider that Mr Wang was required to actively consent to the proceedings to be considered to have behaved reasonably.

[28] In this case, the errors which “necessitated” the filing of an appeal were not

as directly attributable to Mr Wang as the errors in issuing resource consents made by the Councils in the cases above. Although the underlying errors were in

Mr Wang’s documentation for his private prosecution, the link is not so substantial to warrant a contribution. As evident from Winkelmann J’s decision, a contribution will not always be consistent with the overall justice of the case. Costs should simply fall where they lie.

[29] The plaintiffs’ cost claim against the District Court does not meet the test as

[30] The plaintiffs’ cost claim against Mr Wang is also unsuccessful, and costs are to fall where they lie.

High Court of New Zealand Decisions

Wang v District Court of New Zealand [2015] NZHC 1611 (10 July 2015)