A v National Standards Committee

[2020] NZHC 715

ORDER PROHIBITING PUBLICATION OF APPELLANT’S NAME, THE NAMES OF THE COMPANIES INVOLVED IN THE TRANSACTIONS, THE NAMES OF THE TRUSTS INVOLVED IN THE TRANSACTIONS, THE COMPLAINANTS’ NAMES AND ANY OTHER PARTICULARS WHICH MIGHT LEAD TO THE APPELLANT BEING IDENTIFIED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001035

[2020] NZHC 715

UNDER

The Lawyers and Conveyancers Act 2006

IN THE MATTER OF

Disciplinary proceedings under Part 7 of the Act

BETWEEN

A

Appellant

AND

NATIONAL STANDARDS COMMITTEE

Respondent

Hearing:	On the papers
Counsel:	D P H Jones QC and D J G van Hout for Appellant M Hodge and M J Mortimer for Respondent
Judgment:	7 April 2020

JUDGMENT OF WYLIE J [COSTS]

This judgment was delivered by Justice Wylie On 7 April 2020 at 3.30pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:………………………

Solicitors/counsel:

Russell Legal/D P H Jones QC, Auckland Meredith Connell, Auckland

A v NATIONAL STANDARDS COMMITTEE [2020] NZHC 715 [7 April 2020]

[1]    I refer to my substantive judgment. I dismissed Mr A’s appeal against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal and held that the respondent Committee was entitled to its reasonable costs and disbursements.1

[2]    I have now received memoranda from counsel. The Committee seeks costs on a 2B basis together with a filing fee for sealing the judgment. The total sum sought is

$10,685.50. Mr A agrees that the appeal is appropriately categorised on a 2B basis but he seeks to offset costs he says should be awarded in his favour in regard to a partially successful application he made to adduce further evidence. Further, he argues that costs on the substantive appeal should be discounted for various reasons which I outline below.

[3]   I agree with counsel that it is appropriate to categorise the substantive proceedings on a 2B basis. Indeed, the parties had already agreed that that categorisation was appropriate in a consent memorandum filed shortly after the notice of appeal was filed. The only dispute between the parties is whether or not any steps were taken by the Committee to commence its response to the appeal – item 53 in sch 3 of the High Court Rules 2016. The Committee has claimed a time allowance for that step of 0.5 of a day. Mr A says that no response was either required or filed. I am working from home during the current COVID-19 crisis and I do not have access to the file. I cannot check whether a response was filed. If a response was filed then the Committee is entitled to its costs for taking that step. If there was no response filed then it is not. Counsel should be able to agree on that issue. I also note that subsequent to the hearing, there were further steps required to deal with name suppression issues. Mr A asked for additional name suppression which had not been sought at the hearing. Memoranda were filed and I convened a teleconference. The Committee has not claimed for these costs. It is entitled to do so – see item 54 in sch 3. Again, counsel should be able to agree these items.

[4]    I do not consider that I can deal with costs on the interlocutory hearing to adduce further evidence. That hearing was before Duffy J. She reserved leave to the

1      A v National Standards Committee [2020] NZHC 563.

parties to file memoranda in relation to costs.2 Mr A invites me to fix costs on that application but I do not consider that it is appropriate for me to do so. Under r 14.8, costs on an interlocutory application are generally fixed in accordance with the rules when the application is determined. In effect, costs on an interlocutory application are dealt with separately and not as part of the substantive proceeding. This reflects the position that the merits of the interlocutory application may differ from the merits of the substantive proceeding.3 There are sound practical reasons in this case for abiding by that general rule. There are competing submissions from both counsel as to the merits of the interlocutory and what did or did not happen at that hearing. Those competing submissions should be referred to Duffy J so she can make the appropriate costs order.

[5]    Mr A also seeks to reduce the costs otherwise payable by him because of criticisms I made of the Tribunal’s decision in my substantive judgment. I observed that aspects of the decision were relatively superficial and that some findings were conclusory.4 With respect to counsel’s submissions, in this regard the shortcomings in the Tribunal’s decision cannot be laid at the Committee’s door. I am not aware of any rule or practice suggesting that the costs of a party who successfully defends a poorly reasoned but nevertheless correct decision should be reduced and no authority was cited for this proposition. I decline to allow a discount for this factor.

[6]    I do however consider that Mr A should be entitled to a modest discount for his success in overturning the Tribunal’s decision declining him name suppression. The Committee did not accept before me that, notwithstanding the additional medical evidence that had become available, the Tribunal’s decision could no longer be supported in this regard. This issue did not occupy too much time at the hearing of the appeal. I direct that the costs otherwise payable by Mr A are to be reduced by 10 per cent to allow for Mr A’s partial success in this regard. I decline to direct that part of Mr A’s costs of obtaining a brief of evidence from Dr Goodwin be met by the Committee as requested by Mr A. There is no justification for such direction and the

2      A v National Standards Committee [2020] NZHC 392 at [31].

3      Chapman v Badon Ltd [2010] NZCA 613; (2010) 20 PRNZ 83 at [12].

4      A v National Standards Committee, above n (1), at [44(b)].

evidence was relied on mainly to support the substantive appeal and only in part to deal with the name suppression issue.

[7]    The schedule of costs claimed by the Committee will require some amendment as a result of this decision. Counsel should be able to agree on the amended costs payable. In the event of dispute, I direct that the same is to be referred to the Registrar. I certify for the filing fee payable on sealing the judgment.

Wylie J