Lyttelton v Police

[2017] NZHC 1708

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000889 [2017] NZHC 1708

BETWEEN

MARTIN LYTTELTON

Plaintiff

AND

THE NEW ZEALAND POLICE First Respondent

AND

DEPARTMENT OF CORRECTIONS Second Respondent

Hearing:

On the papers

Appearances:

MV Lyttelton in person

R M McCoubrey and K H Lawson-Bradshaw for the respondents

Judgment:

21 July 2017

JUDGMENT OF KATZ J

This judgment was delivered by me on 21 July 2017 at 4.00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Meredith Connell, Auckland

Gilbert/Walker, Auckland

Copy to:            M V Lyttelton

MARTIN LYTTELTON v THE NEW ZEALAND POLICE [2017] NZHC 1708 [21 July 2017]

[1]      Martin Lyttelton applied unsuccessfully for judicial review of decisions made by the New Zealand Police and the Department of Corrections, while he was on parole.  He had been released from prison subject to the following standard release condition:

The offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate.

[2]      Mr Lyttelton was directed not to associate with his former lawyers, on the basis that he might pose a risk to their safety.  In respect of this decision, he claimed:

(a)       Corrections’ decision to make the non-association direction was made in a way that was procedurally unfair.

(b)Both the Police and/or Corrections acted for an improper purpose and, in the case of the Police, were biased.

(c)       The Police acted unlawfully in sharing information (some of which was privileged) with Corrections.

[3]      I found there to be no substance to Mr Lyttelton’s various complaints and dismissed his application.1   The parties have since been unable to agree on costs.  I now deal with that issue.

[4]      Ordinarily, the unsuccessful party to a proceeding is required to pay costs to the successful party.2    Mr Lyttelton, as the unsuccessful party, does not dispute this principle.  However, he alleges several errors of fact and law in my judgment that he says ought to exonerate him from liability for costs.   Such a submission is misconceived.  Mr Lyttelton is, of course, entitled to challenge any findings of fact or law in the judgment.    The correct way to do so, however, was to appeal the

judgment to the Court of Appeal.  Mr Lyttelton has not done so and is now well out

1      Lyttelton v Police [2016] NZHC 22, [2016] NZAR 493 at [81].

2      High Court Rules 2016, r 14.2(a).

of time to make such an application.3       I see no reason why costs in these circumstances should not follow the event.

[5]      An award of costs should reflect the complexity and  significance of the proceeding.4   As to this, the respondents submit that costs are payable on a 2B basis. I agree with this categorisation.  The proceeding was complex to an average degree, and a normal time allocation for each step in the proceeding is appropriate.

[6]      Although no formal discovery orders were made, the respondents seek costs for inspection of documents under sch 3 of the High Court Rules.  Considerable time was spent obtaining and providing significant informal discovery to the applicant. In these circumstances I consider it appropriate to include an allowance for discovery costs in the costs award.

[7]      The appropriate award of costs in this case is therefore $28,059, calculated on a 2B basis (as set out in the schedule of costs and disbursements annexed to the memorandum of counsel for the respondents).  This is in addition to disbursements of $160.

[8]      I accordingly order that Mr Lyttelton pay the respondents’ costs in the sum of

$28,059 plus disbursements of $160.  The costs are to be split evenly between the

respondents, as per counsel’s request.

Katz J

3      In his memorandum Mr Lyttelton referred to the possibility of an application for leave to appeal, or alternatively requested that I recall my judgment.  However, each of  these procedures require a formal application. No such applications have been filed.

4      High Court Rules, r 14.2(b).