Hudson v Attorney-General [2021] NZHC 323 (1 March 2021)

Last Updated: 24 May 2021

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-000203 [2021] NZHC 323

UNDER	the Judicial Review Procedure Act 2016, the Corrections Act 2004, the Corrections Regulations 2005 and the Prison Operation Manual
IN THE MATTER OF	an application for judicial review
BETWEEN	STEPHEN THOMAS HUDSON Applicant
AND	ATTORNEY-GENERAL First Respondent THE OFFICE OF THE INSPECTORATE Second Respondent

On the Papers
Judgment:	1 March 2021

JUDGMENT OF GWYN J

(Costs)

Introduction

• [1] In my judgment dated 8 December 2020, I dismissed Mr Hudson’s application for judicial review against the Attorney-General on behalf of the Department of Corrections (the Department), and the Office of the Inspectorate (the Prison Inspectorate).¹

¹ Hudson v Attorney-General [2020] NZHC 3231.

HUDSON v ATTORNEY-GENERAL [2021] NZHC 323 [1 March 2021]

• [2] The Department now applies for costs on a 1A basis. Mr Hudson argues costs should lie where they fall.

Background

• [3] Mr Hudson, a serving prisoner, sought to review decisions of the Department and the Prison Inspectorate relating to the unlock times of common areas within the prison (in particular, the gym), and the handling of his subsequent complaint. His complaint about the unlock times stemmed from a change made on 4 September 2019. Prior to that date, the unlock times were 10.00 am - 11.20 am and 1.10 pm - 4.30 pm. On 4 September 2019, the unlock times were changed for one day, to 1.10 pm -

4.30 pm. From 5 September 2019, the unlock times reverted to 10.00 am - 11.20 am and 1.10 pm - 4.30 pm.

• [4] In terms of the unlock times, I found Mr Hudson’s claim related to the day-to-day management of the prison, and was therefore not amenable to judicial review unless there was a breach of prisoners’ minimum entitlements or another provision under the Corrections Act 2004 (the Act).² I found no such breach occurred. I also found the issue of the change in unlock times was moot, as the change in hours was in effect for only one day, and was no longer an active issue; even if Mr Hudson had been successful in establishing his case, I would have refused to grant him the relief he sought.³

• [5] In terms of the complaints process, I again found Mr Hudson’s claim could not be sustained, and I noted that judicial review is a remedy of “last resort” and complaints should first be processed through the Prison Inspectorate system and the Ombudsman.⁴

• [6] I also noted Mr Hudson had sought to introduce new arguments in an amended statement of claim filed without leave, his most recent affidavit, and his written submissions. These included an argument relating to working prisoners accessing the

² At [42]-[43].

³ At [62].

⁴ At [76]; Mitchell v Attorney-General [2013] NZHC 2836.

gym. I was not able to consider these issues, as they were raised too late, and the respondents did not have adequate opportunity to respond.⁵

The law

• [7] Rule 14.1 of the High Court Rules 2016 (the Rules) provides that the Court has discretion in awarding costs. However, that discretion is not unfettered, and the Supreme Court has held that the overall structure of the costs regime in the Rules means “there is a strong implication that a Court is to apply the regime in the absence of some reason to the contrary”.⁶

• [8] Rule 14.2(1)(a) provides that “the party who fails with respect to a proceeding

... should pay costs to the party who succeeds”. This reflects the “longstanding principle that, unless there are exceptional reasons, costs should follow the result.”⁷ Rule 14.2(1)(g) also provides that “so far as possible the determination of costs should be predictable and expeditious.”

• [9] Rule 14.7 provides that the Court may refuse to make an order for costs, or may reduce the costs otherwise payable under the Rules, if:

...

(e) the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or

...

(g) 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.

• [10] I also note the comments of Edwards J in Taylor v Roper about the purpose of a costs award:⁸

• [6] The primary purpose of a costs award is to compensate a successful party for the costs they have expended in having their legal rights recognised

⁵ At [4]-[10] and [107]-[111].

6. Manukau Gold Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7]; citing Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd [2002] NZCA 277; (2002) 16 PRNZ 662 (CA) at [27].

⁷ Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].

⁸ Taylor v Roper [2019] NZHC 16 (footnotes omitted).

and enforced in a court of law. Costs are not ordered as punishment against the losing party, nor as a reward for the winner. An award of costs is generally linked to the conduct of the proceeding and its result but is not usually concerned with what happened before the proceeding.

• [7] An award of costs also serves a number of other policy objectives. The prospect of an adverse costs award acts as a check on unmeritorious litigation being pursued through the courts. An award of costs also encourages litigants to consider whether there are cost-effective alternatives to court litigation to resolve the underlying dispute. Of course, counterbalanced against those objectives is the public interest in ensuring that an award of costs does not inhibit litigants from seeking to enforce their rights through the courts.

Submissions

• [11] The Department seeks costs on a 1A basis of $8,665.50 and disbursements of

$265.94, totalling $8,931.44. Mr McCusker, counsel for the respondents, submitted the Department is entitled to seek costs on a 2B basis, but costs are only sought on a 1A basis. Costs are sought on the following grounds:

(a) Costs ordinarily follow the event except in exceptional circumstances.

(b) Serving prisoners are not exempt from costs solely on the basis of their status as serving prisoners,⁹ and the enforcement of costs is separate to the question of whether a costs order should be made.¹⁰

(c) Mr McCusker submitted there is nothing separating Mr Hudson from other unsuccessful prisoners in judicial review proceedings. The application was dismissed in its entirety, and Mr Hudson raised complaints that were not amenable to review, were moot, were raised too late to be determined, or were prematurely brought as a judicial review rather than progressed through the prison complaints system. Mr McCusker submitted Mr Hudson’s complaint about working prisoners accessing the gym was raised in the wrong forum (the Court rather than the prison complaints system), and the Department has been unable to establish the extent to which this issue is legitimate due to a lack of information provided by Mr Hudson.

⁹ Genge v Visiting Justice at Christchurch Men's Prison [2018] NZHC 70 at [12].

¹⁰ At [25].

(d) Given judicial review is a remedy of last resort, Mr McCusker submitted that there is strong public interest (from both a prison management perspective, and in terms of protecting the Court’s own processes) in complaints from prisoners being properly brought through the prison complaints system, rather than as premature applications for judicial review.

• [12] Mr Hudson asked the Court to exercise its discretion and refuse to make a costs order pursuant to r 14.7(e) or (g). Mr Hudson submitted:

(a) The proceeding was brought in good faith, and was effectively brought on behalf of many prisoners.

(b) The proceeding involved untested points of law concerning s 152 of the Corrections Act 2004 (relating to the objectives and monitoring of the Department’s complaints system).

(c) The proceeding involved the testing of new procedures by the Prison Inspectorate concerning the way complaints by prisoners are dealt with.

(d) He met all timetable requirements.

(e) He will be unable to pay costs (he confirmed he was only able to proceed with the case with the use of a fee waiver).

Discussion

Did this case concern a matter of public interest (r 14.7(e))?

• [13] I note the comments of Gendall J in Genge v Visiting Justice at Christchurch Men's Prison about r 14.7(e):¹¹

[12] Rule 14.7(e) of the High Court Rules permits a reduction or refusal of costs in cases involving genuine public interest. Often these are cases

¹¹ Genge v Visiting Justice at Christchurch Men's Prison, above n 9 (footnotes omitted).

involving important and untested points of law which are of wide implication. The requirements are that proceedings of this type have merit and involve matters of genuine public interest and importance beyond the interests of the particular unsuccessful litigant, who must also have acted reasonably in the conduct of the proceeding. I am satisfied in all the circumstances here the present case does not fall into this category. Mr Genge is a prisoner challenging the lawfulness of executive action. Many costs awards in the past have been made against prisoners in civil claims in this and other courts. ...

• [14] For example, White J refused to make a costs order against an unsuccessful prisoner in proceedings relating to fair trial rights under the Bill of Right Act in Taylor v District Court at North Shore (No 2), partly on the basis that they raised issues of genuine public interest.¹²

• [15] Given I found the issues raised by Mr Hudson in relation to the unlock times were moot, as the amended times were in force for only one day, I do not consider he raised issues of genuine public interest with wide implication in this aspect of his case. However, I do note that in part, the dispute about the unlock times appeared to stem from the fact that prior to 4 September 2019, the unofficial position on unlock times had been different – some prisoners had been accessing the gym earlier than the official unlock times, from 8:00 am, and perhaps not surprisingly the prisoners felt aggrieved when that practice was brought to an end.¹³

• [16] In terms of the complaints process, I do not consider Mr Hudson’s arguments about how his individual complaint was handled raised issues of public interest. However, although not successful, I do consider he raised genuine questions of public interest about the Prison Inspectorate’s complaints process more generally, in particular changes that were made in 2017, which could have impacted on other prisoners.

Is there some other reason which justifies this Court refusing or reducing costs (r 14.7(g))?

• [17] I note White J’s comments about r 14.7(g) in Taylor v District Court at North Shore (No 2):¹⁴

¹² Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010.

¹³ Hudson v Attorney-General, above n 1, at [63].

¹⁴ Taylor v District Court at North Shore (No 2), above n 12.

[10] The “catch-all” exception in rule 14.7(g) is broad, but requires identification of a good reason for departing from the general rule that costs should follow the event. Examples may include habeas corpus applications and claims under the New Zealand Bill of Rights Act 1990 ...

• [18] Financial hardship can be a relevant factor under r 14.7(g).¹⁵ However, financial hardship is not a shield against a costs award,¹⁶ and is “not usually regarded as a ground to resist an award of costs in circumstances where the opposite party has been put to unnecessary expense in responding to an application”.¹⁷ Costs awards must still be made at a “meaningful level”, even against an impecunious party, when that party has advanced a case which is poorly pleaded or lacking in merit.¹⁸ I also acknowledge the cautionary comments of Muir J, about the risks of reducing costs awards on the basis of financial hardship.¹⁹

• [19] Where a party relies on financial hardship to oppose the making of a costs award, there is a preference for evidence of these matters to be provided in the form of a sworn affidavit (where this is not already established in the substantive proceedings).²⁰ I note an applicant’s eligibility to have court fees waived, which Mr Hudson relied on, is not a ground for refusing costs.²¹ However, I do consider the evidence of the fee waiver, together with his status as a serving prisoner, is sufficient to show he would be unable to pay a costs award.

• [20] In terms of Mr Hudson’s status as a serving prisoner, Mr McCusker has correctly identified that serving prisoners are not exempt from costs solely on that basis.²² However, I consider Mr Hudson’s case can be distinguished from the case of Genge where a costs award was made against a prisoner, relied on by Mr McCusker, where the basis for the claims was not strong, there were allegations of delay in

15. Brown v New Zealand Law Society [2018] NZHC 1692 at [9]; Edwards v Bridge [2019] NZHC 3138 at [19].
16. Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3401 at [6].

¹⁷ Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7].

18. Te Whare o te Kaitiaki Ngahere Incorporated Society v West Coast Regional Council [2014] NZHC 2969 at [16].

¹⁹ Foni v Foliaki [2018] NZHC 3126 at [4]- [10].

²⁰ Edwards v Bridge, above n 15, at [19].

21. Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment, above n 16, at [7].

²² Genge v Visiting Justice at Christchurch Men's Prison, above n 9, at [12].

pursuing the claim, and the prisoner’s conduct in the litigation was criticised.²³ Although Mr Hudson did raise issues too late to be determined by me, this is somewhat understandable given he is self-represented, and on the whole I considered his issues and arguments to be genuine.

• [21] In the context of refusing to award costs against an unsuccessful prisoner in a judicial review involving Bill of Rights issues, I note the following comments of Mallon J in Forrest v Chief Executive of the Department of Corrections:²⁴
  • [2] ... I acknowledge that costs orders can be made against serving prisoners. However costs orders, like reparation orders, may impose unrealistic burdens on them which do nothing to assist their rehabilitation when they are released. Consequently reparation orders are frequently not made if a person is to be sentenced to imprisonment.

• [3] In this case Mr Forrest was bringing a claim under the New Zealand Bill of Rights Act 1990. It concerned the clothing prisoners are required to wear for prisoner visits. Although the claim was struck out because it could not succeed, it cannot be said that it concerned a trifling matter. Certainly there was nothing about Mr Forrest's conduct that indicated he was anything other than genuinely concerned about the issue. He conducted his claim in a proper manner: his pleadings were carefully framed, he was responsibly cooperative in relation to the interlocutory steps, and his written and oral submissions were focussed on the issues.

• [4] In these circumstances, I consider that it is not appropriate to saddle him with the burden of a substantial costs order, which he will need to pay off over time when he is released, when his efforts should be focussed on rehabilitation and integration.

• [22] The Court of Appeal also declined to award costs against a serving prisoner who brought judicial review proceedings in Smith v Attorney-General, on the basis that:²⁵

First, Mr Smith enjoyed some, albeit slight, success in a matter of the law relating to Crown obligations to prisoners. Second, Mr Smith is a long-term serving prisoner. There is no practical prospect of securing payment.

• [23] Finally, I note Churchman J refused to award costs against Mr Hudson in an earlier proceeding, where Mr Hudson was unsuccessful in an application for judicial

²³ At [17].

24. Forrest v Chief Executive of the Department of Corrections [2014] NZHC 2703 (footnotes omitted).

²⁵ Smith v Attorney-General [2010] NZCA 336 at [3].

review.²⁶ The respondent noted its entitlement to costs on a 2A basis, but as their actual costs were less than costs calculated on a 2A basis, they instead sought their actual costs. Relying on the Court of Appeal decision in Smith,²⁷ Churchman J held:

• [12] ... Mr Hudson is a long-term serving prisoner who will not be eligible for parole until 2026. His case was neither vexatious, nor meritless. I decline to exercise my discretion to award the costs sought by the respondents. Costs in this case ought to lie where they fall.

• [13] In the circumstances, an award of what amounts to indemnity costs against the incarcerated Mr Hudson for a proceeding brought in good faith and with some merit is inappropriate.

Should costs be awarded in this case?

• [24] Given Mr Hudson appears to have brought his proceeding in good faith, and he had genuine concerns about the decisions of the Department (partly exacerbated by a change in unofficial practice),²⁸ and he does not have the financial means to pay a costs award, in exercising my discretion I refuse to make a costs award.

Result

• [25] I decline to make the costs order sought. Costs are to lie where they fall.

Gwyn J

²⁶ Hudson v Attorney-General [2017] NZHC 2790.

²⁷ Smith v Attorney-General, above n 25.

²⁸ As discussed above at [15].