Carter v Capital and Coast District Health Board

[2022] NZHC 3507

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-188

[2022] NZHC 3507

UNDER

the Common Law of England confirmed in the Magna Carter 1297 c29; [1368] 42
Edw.3, c.1; and under the inherent jurisdiction

IN THE MATTER OF

an application for a declaratory judgment as to the construction or validity of the Mental Health (Compulsory Assessment and

Treatment) Act 1992

BETWEEN

JOHN HOWARD CARTER

Applicant

AND

CAPITAL AND COAST DISTRICT HEALTH BOARD

First Respondent

HUTT VALLEY DISTRICT HEALTH BOARD

Second Respondent

ATTORNEY-GENERAL (for the Ministry of Health)

Third Respondent

On the papers:

Counsel:

J H Carter in person

I Reuvecamp for First and Second Respondents
S M Kinsler and M Clarke-Parker for Third Respondent

Judgment:

19 December 2022

JUDGMENT OF CHURCHMAN J

[Costs]

CARTER v CAPITAL AND COAST DISTRICT HEALTH BOARD [COSTS] [2022] NZHC 3507

[19 December 2022]

[1]                 By judgment dated 17 November 2022, I struck out Mr Carter’s claim in this matter on the basis that it disclosed no reasonably arguable cause of action.

[2]                 I indicated that if any of the three respondents intended to pursue costs, they were to file memoranda within 10 working days of the decision with Mr Carter having a further 10 working days to respond. A memorandum dated 29 November 2022 seeking costs on a 1B basis was filed on behalf of the Attorney-General.

[3]                 Mr Carter has filed a memorandum dated 15 December 2022. The coversheet describes the document as “memorandum re extending time to file submissions on costs”. However, the body of the document does not make any reference to an application seeking an extension of time.

[4]                 The only discernible ground upon which Mr Carter opposes the claim for costs is that the original decision (subsequently amended under the slip rule on 5 December 2022) referred to his proceedings as having been dated 27 April 2022 when they were in fact dated 26 April 2022 but filed on 27 April 2022.

[5]                 The balance of the memorandum appears to attempt to relitigate claims that were made by Mr Carter at the time of the hearing in this matter.

Analysis

[6]                 The principles relating to costs in civil proceedings are set out in Part 14 of the High Court Rules 2016 (HCR). The primary principle is that the unsuccessful party should pay costs (HCR 14.2(a)). The rules aim to achieve predictability, consistency and expediency in the fixing and payment of costs (HCR 14.2(g)). The rules contain rates and steps designed to deliver to the successful party approximately two-thirds of the daily rate considered reasonable once the proceeding has been placed in its appropriate category for complexity and significance.

[7]                 Costs on interlocutory applications are governed by HCR 14.8. This provides that, unless there are special reasons to the contrary, costs:

(a)must be fixed in accordance with these rules when the application is determined; and

(b)become payable when they are fixed.

[8]                 The Court has a discretion in respect of fixing costs. HCR 14.7 confirms that despite HCR 14.2 to HCR 14.5, the Court may refuse to make an order for costs or may reduce the costs otherwise payable under the rules in circumstances set out in that rule. Those circumstances include:

(a)the nature of the proceeding or the steps in a proceeding is such that the time required by the party claiming costs would be substantially less than the time allocated under Band A; or

(b)the property or interests at stake in the proceeding were of exceptionally low values; or

(c)the issues at stake were of little significance; or

(d)although the party claiming costs has succeeded overall, that party has filed in relation to a cause of action or issue which substantially increased the costs of the party opposing costs; or

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

(f)the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by:

(i)failing to comply with these rules or a direction of the Court; or

(ii)taking or pursuing in unnecessary step or argument that lacks merit; or

(iii)failing, without reasonable justification, to admit the facts, evidence, or documents, to accept a legal argument; or

(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice of interrogatories, or other similar requirement under these rules; or

(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under HCR 14.10 or some other offer to settle or dispose of the proceedings; 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.

[9]                 Mr Carter is a self-represented litigant. I therefore have to consider whether that amounts to “some other reason” justifying the refusal or reduction of costs.

[10]              There is no principle that lay litigants are exempt from the normal provisions relating to costs and there are also cases where increased costs have been awarded against lay litigants in circumstances where the manner in which they have conducted proceedings has resulted in the successful party incurring unnecessary costs.1

Result

[11]              I accept that none of the factors outlined in HCR 14.7 justify a refusal to award costs or a reduction. I cannot identify any factors that would justify departure from the normal principle that an unsuccessful party is expected to pay costs in accordance with the rules.

[12]              The applicant has claimed costs on a 1B basis together with disbursements. The application was accompanied by a schedule setting out the calculation of the costs

1      See Bellinger v Bellinger (1996) 9 PRNZ 296; and Aplin v Lagan (1993) 10 FRNZ 562 at 576.

and disbursements on that basis. A review of that schedule indicates that the costs have been appropriately calculated in accordance with the rules.

[13]              Accordingly, I grant the application for costs and disbursements as sought in the sum of $12,217.

Churchman J

Solicitors:

Vida Law, Wellington for Respondents

Meredith Connell, Wellington for Third Respondent cc: J H Carter