Application for Review of Registrar's decision - T Gunn
[2019] NZHC 3413
•19 December 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2019-419-64
[2019] NZHC 3413
UNDER The High Court Rules 2016 IN THE MATTER
Of an application for Review of Registrar’s decision by Tracey Gunn
On the papers: At Auckland Judgment:
19 December 2019
JUDGMENT OF POWELL J
This judgment was delivered by me on 19 December 2019 at 11 a.m. pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Application for Review of Registrar’s decision – T Gunn.
[1] Tracey Gunn, a barrister, seeks review of a Registrar’s decision pursuant to r 2.11 of the High Court Rules 2016.
[2] The application has been brought following the 6 June 2019 appointment of Ms Gunn as counsel for the child in a High Court appeal; Ms Gunn having previously been counsel for the child in the related proceedings in the Family Court.
[3] The review concerns the hourly rate that should be paid to Ms Gunn. In a letter confirming Ms Gunn’s appointment, the Deputy Registrar advised on 6 June 2019:
On 6 June 2019 you accepted appointment by the Court to act as Counsel for the child as referred to in section 7 of the Care of Children Act 2004 in proceedings under the Protection of Personal and Property Rights Act 1988.
The rates applying for attendances for this type of appointment are usually in line with those applying in the Family Court (in terms of the 21 December 2005 "Practice Note: Lawyer for the child: Selection, appointment and other matters" of Judge P F Boshier, (Principal Family Court Judge) but allowing for any special factors that might distinguish the High Court proceeding from most proceedings that come before the family court.
The family Court Practice Note currently sets out the remuneration rates and includes three levels of rates that can be used when setting the hourly rate for payment. The rates are as follows:
• Level 1
$132.89 to $158.44 per hour (GST inclusive).
Range to be used in cases where the practitioner appointed has only recently been approved or where no approved lawyer is available, and the lawyer appointed is not on the list of approved lawyers.
• Level 2
$158.44 per hour (GST inclusive).
This fee will be used in the majority of cases.
• Level 3
$158.44 to $173.78 per hour (GST inclusive). This range will be used to calculate fees:
- in cases where superior skills are required;
- in cases of extreme urgency;
- in cases where there are grave concerns about the immediate safety of children;
- in most Hague Convention cases;
- in cases where there are allegations of sexual abuse.
The outcome of a 2008 review of the criteria applied by Courts for an assignment at the higher rate (Level 3) resulted in the case characteristics to be included in that assessment being clarified. It was determined that an appointment at the higher rate would occur where a "cluster" (more than one) of the characteristics requiring superior skills described below is present in a case.
• substance and alcohol abuse especially the use of methamphetamine;
• family violence;
• suggestions of mental health issues;
• cultural considerations;
• ethnicity (interpreter) considerations;
• complex or larger families;
• self-represented litigants;
• parties have gang affiliations; and
• frequent changes of lawyer
Please provide an estimate of the total time you will need to spend on this matter and the total cost of the anticipated attendances. Your estimate should include details of any special factors that might be relevant to your intended charge out rate.
[4] In a response dated 17 October 2019, Ms Gunn, somewhat belatedly, queried the rates quoted and stated:
I note in your letter of 6 May 2019 that you have referred to Family Court rates. With respect, these are no longer Family Court proceedings but are in the High Court. The usual practice is for counsel to negotiate the rate with the Court directly. It is my suggestion that the hourly rate is set in this matter at the rate of $220 per hour plus GST.
[5]The Deputy Registrar responded the next day:
Thank you for your letter of 17 October 2019.
My letter of 6 May advised that the rates applying for attendances for this type of appointment are usually in line with those applying in the Family Court as per the terms of the 21 December 2005 "Practice Note: Lawyer for the child: Selection, appointment and other matters" of Judge P F Boshier, Principal Family Court Judge. but allowing for any special factors that might distinguish the High Court proceeding from most proceedings that come before the family Court.
I would be prepared to approve the top of the Level 3 rate of $173.78, for this High Court appeal given that this case does require counsel at a senior level; there was some urgency, the child was overseas and considering cultural differences. I cannot consider above and beyond that given that this is not a Hague convention case, there are no allegations of sexual abuse and the immediate safety of the child was not a grave concern. There were no other distinguishing factors about this case.
Please provide an estimate of the total time you will need to spend on this matter and the total cost of the anticipated attendances. Your estimate should include details of any special factors that might be relevant to your intended charge out rate.
Your estimate of your fees should be marked for my attention. Your hourly rate and the maximum for your costs will be set when that reply is received.
[6]This resulted in the present review with Ms Gunn submitting:
Practice Notes in the Family Court that detail remuneration have no relevance in the High Court. They are entirely different courts. It is the practice in the Hamilton Family Court that every Lawyer for Child file is billed at the top rate. Accordingly, in you offering me the top rate in the High Court, there is absolutely no differentiation between what I would be paid in the Family Court and the High Court. As your letter points out, there are issues in relation to this particular case that required the appointment of Senior Counsel. In particular, there had been criticism of the earlier Lawyer for Child in the Family Court and Senior Counsel was required. I would request that you review the rate that I can bill this at so that I can progress this matter.
Discussion
[7] As Potter J noted, although this Court appoints counsel for the child as a matter of course the basis for doing so is less than satisfactory.1 It is clear that the appointment of counsel for the child in the Family Court does not continue through to an appeal in this Court,2 nor do the relevant statutes provide for such appointments to be made.3 It is however clearly appropriate that such appointments are made in order that this Court can be satisfied that the interests of children in an appeal can be properly considered
1 M & D v S [2008] NZFLR 120 (HC).
2 At [57].
3 At [58]-[69].
and accommodated. The result is that current appointments must be seen as an exercise of the appointing Judge’s inherent jurisdiction.4
[8] It follows, as Ms Gunn submitted, that the Family Court practice note is not in any way determinative of the remuneration payable for counsel accepting appointments as counsel for the child in a High Court appeal. It follows that there is no basis for the Registry to conclude the maximum hourly rate that can be paid to counsel for the child appointed in the High Court is limited to that set out in the Practice Note: Lawyer for the Child: Selection, Appointment and Other Matters issued by the Principal Family Court Judge in 2011 (“2011 Practice Note”), relied upon by the Deputy Registrar in this case.5
[9] Instead, it must be the case that any appointment by a Judge of this Court impliedly assumes that a reasonable fee will be paid, having regard to all the circumstances of the appointment, noting that the type of proceedings where counsel for the child are likely to be appointed by this Court are appeals from the Family Court, which are of course civil proceedings conducted pursuant to the High Court Rules 2016.
[10] As to what a reasonable fee might be, I have considered and rejected both the rates set out in the 2011 Practice Note and the relevant legal aid rates for family proceedings in the High Court. First, it is apparent that both rates have not been reviewed for a very long time, since March 2011 and July 2009 respectively. These delays are significant, noting that the Producer Price Index (PPI) has increased by some 39.1 per cent since 2009 and 33.8 per cent since 2011.6 Secondly, it is by no means clear on what basis the hourly charge out rates were justified at the time, with the legal aid rates in particular having been as a matter of policy kept artificially low for decades, leading to a dwindling number of practitioners accepting legal aid assignments,7 including in relation to family proceedings.
4 At [68]-[71].
5 Inquiries have shown the same approach is taken by the Auckland Registry.
6 See Statistics New Zealand Business Price Indexes: September 2019 Quarter (November 2019, Wellington).
7 See Criminal Bar Association of New Zealand Inc v Attorney-General [2013] NZCA 176 at [138]; [2012] NZHC 1572 at [125] in relation to the criminal jurisdiction; and, more generally, “Legal Aid: The Problems and Issues” (2018) 923 LawTalk 77.
[11] A far better basis for determining a reasonable hourly rate is the scale costs set out in the High Court Rules. While the costs regime is designed to achieve certainty for parties with regard to the amount of costs able to be recovered by a successful party8 it is nonetheless based upon a notional daily recovery rate so as to enable the successful party to recover approximately two thirds of the costs incurred.9 This recovery rate is determined by the High Court Rules Committee made up of members of the judiciary, the profession and the Ministry. The Committee has recently reviewed the daily rate – the Appropriate Daily Recovery Rate – taking into account changes to the PPI since the rate was last reviewed in 2009. The new rate took effect from 1 August 2019.10 The appropriate daily recovery rates are now:
Category of proceedings (r 14.3) Appropriate daily recovery rate (r 14.4)
($)
1,590
2,390
3,530
[12] Although the appropriate daily recovery rate is not expressed as an hourly rate, such can be calculated given the number of hours in a court day can be determined with precision (5.25 hours) and is directly recoverable.11
[13] Taking the median rate (the appropriate daily recovery rate on a 2B basis)12 and allowing for the fact that the recovery is calculated as being two thirds of a
8 In accordance with the general desirability of the award of costs being expeditious and predictable: High Court Rules 2016, r 14.2(1)(g). See further Rachael Schmidt-McCleave “Costs” in Peter Blanchard (ed) Civil Remedies in New Zealand (2nd ed, Brookers, Wellington, 2011) 763 at [21.2.1].
9 See Rules Committee Minutes of the Meeting of 2 October 2017 (Judicial Office for Senior Courts, Wellington, 13 October 2017) at 3: “Asher J observed that the “two-thirds” rule is a fiction, as the rule more properly delivers about one-third. The costs regime has not kept up with actual costs. Even when it was initially set-up it did not achieve two-thirds.”
10 High Court Amendment Rules 2019, r 11.
11 High Court Rules 2016, sch 3 item 57. Note that the reference to quarter days confirms that the appropriate daily recovery rate is limited to the court day and does not include preparation time or other attendances.
12 It is noted that, by definition, counsel who have been appointed Lawyer for the Child in a Family Court proceeding are senior Family Court practitioners. Specifically, Part 9 of the 2011 Practice note confirms that counsel for the child are only appointed to a panel of Lawyer for the Child if they possess a minimum of five years practice in the Family Court and are approved by a panel as provided for in the 2011 practice note. The full list of criteria for appointment as a lawyer for the Child are set out in 9.5 of the 2011 Practice Note is as follows:
notional reasonable charge out rate for civil work in the High Court, a notional reasonable charge out rate is $682.85.13 As this rate effectively includes GST, after GST is subtracted the GST exclusive rate is $593.78 per hour.
[14] On any basis therefore, it can be seen that the $220 per hour sought by Ms Gunn is eminently reasonable and should be paid in this case.
[15] Given my conclusions it is clearly appropriate that a more structured review be undertaken to ensure that the reasonable fees of all counsel appointed by the High Court are met and that counsel are not unreasonably benchmarked to out of date and inapplicable guidelines such as the 2011 Practice Note. In addition, the analysis shows that the legal aid rates for any form of civil work in the High Court bear absolutely no relationship to the reasonable costs of counsel. In such circumstances and leaving aside other inherent flaws in the current legal aid system,14 it is not surprising that there are a lack of providers able to undertake legal aid assignments across the jurisdiction of this Court, not only conventional civil proceedings, but also family proceedings, immigration and Accident Compensation.
[16] Quite clearly there can be no basis for artificially restricting the charge out rates of certain types of counsel appearing before this Court when considerable work has already been done by the High Court Rules Committee to calculate the reasonable costs of counsel. There can be no basis for differentiating between different types of
(a)a current Practising Certificate;
(b)the ability to exercise sound judgement and identify central issues;
(c)a minimum of five years practice in the Family Court;
(d)proven experience in running defended cases in the Family Court;
(e)a sound knowledge of the Care of Children Act 2004;
(f)an understanding of, and an ability to relate to and listen to, children of all ages;
(g)good people skills and an ability to relate to and listen to adults;
(h) sensitivity and awareness of gender, ethnicity, sexuality, cultural and religious issues for families;
(i)relevant qualifications, training and attendance at relevant courses;
(j) personal qualities compatible with assisting negotiations in suitable cases and working co- operatively with other professionals;
(k)independence; and
(l) knowledge and understanding of the Practice Note: Lawyer for the child: Code of Conduct and "Best Practice Guidelines for Lawyer for the Child".
13 $2,390 multiplied by 150 per cent, divided by 5.25, equals $682.85.
14 Including the general position that legal aid is a loan that must be repaid: Legal Services Act 2011, pt 2 subpt 4.
lawyers coming before this Court as to do so would simply serve to aggravate existing access to justice issues and is otherwise unfair.
Decision
[17]The application for review is allowed. Ms Gunn is to be paid at a rate of
$220.00 per hour (GST exclusive).
Powell J
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