Henry v Minister of Justice [2019] NZHC 3043 (21 November 2019)

Last Updated: 26 November 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1898 [2019] NZHC 3043

UNDER	the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990, and the Human Rights Act 1993
IN THE MATTER	of the process of selection for the post of New Zealand Race Relations Commissioner
BETWEEN	COLIN SAMUEL HENRY Applicant
AND	THE MINISER OF JUSTICE First Respondent THE ATTORNEY-GENERAL Second Respondent

Hearing:	On the papers
Appearances:	Applicant in person V McCall and J Watson for the First and Second Respondents
Judgment:	21 November 2019

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 21 November 2019 at 11:00 a.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

..........................................

Parties / Solicitors / Counsel:

Mr C S Henry, Auckland

Ms V McCall and Mr J Watson, Crown Law, Wellington

HENRY v THE MINISER OF JUSTICE [2019] NZHC 3043 [21 November 2019]

[1] In my judgment of 28 June 2019 dismissing Mr Henry’s application for judicial review, I indicated my initial view was that costs should follow the event on a 2B basis. I invited memoranda on costs, if they could not be agreed, and indicated I would then determine costs on the papers.¹

[2] The respondents seek costs on a 2B basis of $47,387.50 plus disbursements of
$2,109, totalling $49,496.50. This includes costs in respect of interlocutory applications which had been reserved.

Respondents’ submissions

[3] The respondents submit that costs should follow the event in relation to the interlocutory and substantive decisions. They acknowledge that costs may be reduced in proceedings concerning a matter of public interest but resist a reduction here on the basis that Mr Henry was also advancing his private interest, his case had no merit, and he acted unreasonably in relation to some interlocutory applications and submitted some inflammatory and irrelevant material. Alternatively, they say any reduction should be limited to 10 per cent. The respondents also resist a reduction on account of one cause of action having referred to the New Zealand Bill of Rights Act 1990 (NZBORA).

Mr Henry’s position

[4] Mr Henry filed an affidavit in relation to costs. He expresses his loss of confidence in the New Zealand judicial system and executive (to put it mildly) but makes no submissions on costs apart from indicating he fully expects that a costs order will be punitive.

Legal principles

[5] A general principle applying to the determination of costs is that costs follow the event – the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.²

¹ Henry v The Minister of Justice [2019] NZHC 1493 at [94].

2. High Court Rules, r 14.2(1)(a); Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

[6] Despite this, the Court may refuse to make an order for costs or may reduce the costs otherwise payable in certain circumstances, including if the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding.³ The case law indicates that, to attract the public interest or “watchdog principle” exception to the normal rule that costs follow the event, the case must concern a matter of genuine public interest beyond the interests of the particular unsuccessful litigant, have merit, and the litigant concerned must have acted reasonably.⁴ In terms of r 14.7(e), the merit requirement may effectively be subsumed within the requirement to act reasonably.

[7] The Courts have also acknowledged that it may not always be appropriate to allow costs to follow the event in cases involving the application of NZBORA because the normal costs rules may discourage litigants from bringing NZBORA claims.⁵ Costs may not be awarded against an unsuccessful plaintiff if an NZBORA claim is bona fide and found to have had some merit even though unsuccessful, especially if the plaintiff sought no more than a vindication of rights, and the conduct of the case did not warrant an adverse costs order. Even if such cases do not fit within r 14.7(e), r 14.7(g) provides that the Court may refuse to make an order for costs, or may reduce costs, if some other reason exists which justifies the Court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

Discussion

[8] The starting point is that the principle that costs follow the event indicates that the respondents are entitled to costs in the proceeding, including for the interlocutory applications sought. Mr Henry’s two applications for interim orders, his application to rescind or vary the judgment on his second application for interim orders, the

³ Rule 14.7(e).

4. Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010; and New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2012] NZHC 3560 at [45], affirmed in New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2013] NZCA 555 at

[11] and [13].

5. Attorney-General v Udompun [2005] NZCA 128; [2005] 3 NZLR 204 (CA) at [186]; and Dotcom v Twentieth Century Fox Film Corporation [2018] NZHC 299 at [5].

application to transfer that application to the Court of Appeal, and the substantive proceeding were all dismissed.

[9] The proceeding is appropriately classified as 2B for costs purposes.

[10] I consider that costs should follow the event notwithstanding the reference to NZBORA in the fourth cause of action in the claim. It was peripheral and did not add anything to the breach of natural justice claim.

[11] I turn to consider whether 2B costs should be reduced on the basis that the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding.⁶ I consider the proceeding did concern a matter of public interest, namely judicial review of the appointment process for the new Race Relations Commissioner (RRC). Even though Mr Henry had a particular interest as an applicant who was not shortlisted for interview, he was at pains to submit that his complaint was not about his omission from a shortlist or whether he was selected for the role, but about a fair and proper selection process.⁷ So, as I said in an earlier judgment, I do not characterise the application as one that relates only to the applicant specifically.⁸

[12] The respondents submit that the case had no merit and Mr Henry acted unreasonably in relation to some interlocutory applications and submitted some inflammatory and irrelevant material. I do not consider that Mr Henry acted unreasonably in commencing judicial review proceedings or initially applying for interim relief. At the core, there was a complaint that all candidates, including Mr Henry, were advised, when told that there would be a second public advertisement, that they remained under consideration, whereas the independent panel advising the Minister on the selection of the RRC had already reviewed his expression of interest and not shortlisted him. I had some sympathy with his argument that he (and the other applicants not shortlisted) did not really remain under consideration. However, the scope of the proceeding went considerably beyond that.

⁶ Rule 14.7(e).

⁷ Henry v The Minister of Justice [2019] NZHC 1039 at [16], and [2019] NZHC 1493 at [58].

⁸ Henry v The Minister of Justice [2019] NZHC 1039 at [16].

[13] At an early stage of the proceeding, Fitzgerald J, in relation to the first application for interim orders, accepted for the purposes of that application that an incorrect position was conveyed to Mr Henry, but nevertheless concluded that his claim had low prospects of success. She also concluded that the balance was heavily against interim relief.

[14] The second application for interim orders was unusual. At the end of the substantive hearing of the judicial review application, Mr Henry made an oral application for a further interim order pending judgment that no further steps be taken by the independent panel. It required a separate judgment while the decision on the substantive proceeding was reserved. In dismissing that application, I considered there was a low prospect of the order sought in the proceeding affecting the panel.

[15] I consider the applications to vary or rescind the judgment dismissing the second application for interim orders, and the related application to transfer to the Court of Appeal, were misconceived.

[16] Finally, Mr Henry did adduce some inflammatory and irrelevant material, in particular his reply affidavit which was objected to as irrelevant and scandalous. In the round, I do not consider that this warrants a costs sanction. I also note Mr Henry’s affidavit in relation to costs, which was in a similar category. But this was filed after the proceeding was determined and so does not count against him in relation to his conduct of the earlier applications.

[17] Overall, I consider that 2B costs should be reduced by 20 per cent except in respect of the following steps: second application for interim orders, application to rescind or vary judgment, and application to transfer to the Court of Appeal. Costs for those steps total $13,826. Thus, the 20 per cent reduction on all other steps amounts to $6,712.30, bringing the costs down to $40,675.20.

Result

[18] The respondents are entitled to one award of costs of $40,675.20, plus disbursements of $2,109.









Gault J