Burcher v Auckland Standards Committee 5 of the New Zealand Law Society

[2020] NZHC 2677

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1262

[2020] NZHC 2677

BETWEEN

TIMOTHY JOHN BURCHER

Appellant

AND

AUCKLAND STANDARDS COMMITTEE 5 OF THE NEW ZEALAND LAW

SOCIETY

Respondent

Hearing:	On the papers
Counsel:	D P H Jones QC for Appellant E Mok for Respondent
Judgment:	13 October 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 13 October 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Counsel:            D P H Jones QC, Auckland Solicitors:  Meredith Connell, Auckland

BURCHER v AUCKLAND STANDARDS COMMITTEE [2020] NZHC 2677 [13 October 2020]

[1]                This is a cost judgment. Mr Burcher appealed against the decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal who had found him guilty of a charge of misconduct for breaching a suspension order imposed by the Tribunal. The outcome was recorded at paragraph [108] of the judgment, namely:1

The appeal is allowed in part. Particulars 2, 3 and 4 do not amount to misconduct or unsatisfactory conduct. Particulars 1 and 5 do not amount to misconduct, but amount to unsatisfactory conduct. I am satisfied, however, that there was a proper basis for finding disgraceful and dishonourable conduct in relation to Particulars 6, 7, 8 and 9.

[2]                Mr Burcher now applies for costs on the basis that he was at least partially successful. The respondent opposes the application. The respondent notes that, among other things, I did not seek the submissions on costs.

[3]                The respondent also submits that, having failed to overturn the finding of misconduct, the appellant strictly lost. The respondent also refers to the public function performed by the respondent as a factor to be taken into account.2

Assessment

[4]                As the Court of Appeal stated in Weaver, partial success is still success and ordinarily costs follow the event.3 But where, as here, both parties were vindicated by the result, I am satisfied success was evenly shared.4 Indeed, this was a hard-fought case covering many grounds of appeal. Mr Burcher successfully demonstrated that aspects of his conduct did not amount to misconduct. He has been vindicated to that extent. However, he failed to show that other aspects of his conduct did not amount to misconduct. The Committee’s overall finding of misconduct was therefore upheld and its opposition to the appeal thus justified. Accordingly, costs should lie where they fall.

1      Burcher v Auckland Standards Committee 5 of the New Zealand Law Society [2020] NZHC 43.

2      Lagolago v Wellington Standards Committee 2 [2018] NZCA 406, (2018) 24 PRNZ 763 at [18]- [20].

3      Rule 14.1(a) and see Weaver & Anor v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379 at [26], [52] and [53].

4      See also r 14.7