In an earlier post, we discussed the Human Rights Review Tribunal decision in the case of Andrews v Commissioner of Police. The Police had successfully defended a Privacy Act case that Mr Andrews brought against them. They applied for $7,500 to $10,000 costs, but the Tribunal declined to award any costs at all.

The Police appealed this ‘zero costs’ decision to the High Court, on the basis that the Tribunal’s approach was wrong on several counts. For instance, they argued:

• that this Tribunal, under its current Chairperson, was taking a different approach to costs from previous Tribunal decisions, and was not entitled to change its mind in the way it had
• that the Tribunal’s approach was inconsistent with existing High Court authority and the Tribunal was bound by that authority
• that while preserving access to justice was important, the starting point should be the usual presumption that a successful litigant will get a reasonable contribution to their costs
• Mr Andrews’ ability to pay costs should not have been treated as significant.

In a carefully considered decision, Justice Mallon has dismissed the Police appeal.

She agreed the existing High Court authorities had tended to accept the earlier Tribunal’s approach that costs are generally available for a successful litigant. However, those High Court cases were different from Mr Andrews’ case in many respects. In particular, none of them involved an individual (especially a vulnerable individual) taking a claim against the State. None had been claims involving an important and novel point of law. None had involved a prisoner whose ability to pay and rehabilitation needs should be considered.

Justice Mallon found that the Tribunal was entitled to revisit its previous approach to costs. The Tribunal was not behaving unreasonably or unpredictably. It had clearly signalled its intention to reconsider the issue of costs (Heather v IDEA Services Ltd and Holmes v Ministry of Social Development) and had also clearly stated the reasons why it wanted to do so.

Even more than that, Justice Mallon expressed support for the different approach the Tribunal had taken. To summarise some of the main points:

• statutory tribunals are meant to be quick, cheap and accessible, and large awards of costs could undermine their ability to do that job
• section 105 of the Human Rights Act makes it plain that the Human Rights Review Tribunal’s jurisdiction is different from that of the ordinary civil courts because Parliament has given the Tribunal a great deal of latitude and flexibility
• Public or constitutional issues arise when, for example, individuals who are potentially vulnerable can challenge the exercise of State power over them in the Tribunal. The discretion to award costs must promote the protection of human rights, not negate it, particularly when claims against the State are involved
• Many things affect costs and one size does not fit all. A range of factors may be relevant. The  motivations and behaviour of the parties are particularly important – indeed, “… in the case of an individual asserting a breach of important rights by a state agency, a possible starting point might be that no costs are to be ordered unless the claim (or the conduct of it) is frivolous or vexatious, or was activated by improper motives”.

Mr Andrews had brought a claim that was important to him and about which he was genuine. Unlike litigants in the previous High Court authorities, the proceedings were not hopeless, he was not vexatious, and he had not unnecessarily prolonged proceedings or unreasonably rejected a settlement offer

The Tribunal was correct to have regard to Mr Andrews’ situation, his ability to pay, and the impact on his rehabilitation that a costs award would have

The claim also involved a novel and important point of law (how the Criminal Disclosure Act interacts with the Privacy Act).

It was always going to be difficult for the Police to persuade the Court to reverse a highly discretionary Tribunal decision. But the High Court’s decision is especially welcome because it provides real support for the new way in which the Tribunal approaches the question of costs in human rights cases, particularly for cases involving individuals and State agencies that are exercising power over them.

It will be interesting to see how questions of costs play out in cases brought against private sector agencies, where the ‘constitutional’ element is less obvious. I suggest that the motivations of the parties, and the way in which they conduct the proceedings will be particularly important in those cases.

Human Rights Review Tribunal, law enforcement