C v Legal Complaints Review Officer

[2019] NZHC 2381

ORDER PROHIBITING PUBLICATION OF NAME OF THE APPLICANT EXCEPT IN ACCORDANCE WITH THE INTITULING OF THIS JUDGMENT.

ORDER PROHIBITING ANY SEARCH OF THE COURT’S FILE WITHOUT LEAVE OF A JUDGE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1263

[2019] NZHC 2381

UNDER

The Judicial Review Procedure Act 2016

IN THE MATTER

of a decision of the Legal Complaints Review Officer dated 20 March 2018

BETWEEN

C

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

JUDITH ROGERS
Third Respondent

AND

THE STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY

Intervenor

Hearing:

On the papers

Counsel:

R J Katz QC for Applicant

M J Hodge and M J Mortimer for First Respondent

Judgment:

19 September 2019

COSTS JUDGMENT OF PETERS J

C v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 2381 [19 September 2019]

This judgment was delivered by Justice Peters on 19 September 2019 at 5 pm pursuant to r 11.5 of the High Court Rules

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

Solicitors:           McVeagh Fleming, Auckland

Meredith Connell, Auckland

Counsel:            R J Katz QC, Auckland

Copyfor:           Kayes Fletcher Walker Ltd, Manukau Third Respondent

Introduction

[1]                 The applicant, C, seeks an award of costs on a 2B basis and disbursements against the first respondent, the Legal Complaints Review Officer (“LCRO”), and the third respondent, Ms Judith Rogers, jointly and severally.

Background

[2]                 Ms Rogers complained to the New Zealand Law Society regarding C’s conduct as solicitor of her late mother’s estate, of which Ms Rogers’ sister was the sole executrix. In October 2014, a Standards Committee informed Ms Rogers that it would not be taking any action in relation to her complaint. In November 2014, Ms Rogers applied to the LCRO to review that decision. On 20 March 2018, the LCRO directed the Standards Committee to reconsider Ms Rogers’ complaint. C sought judicial review of the LCRO’s decision.

[3]                 In a judgment of 25 July 2019, I granted C’s application for judicial review and set aside the LCRO’s decision without any order that the matter be reconsidered.1 I did so because the LCRO had failed to give C an opportunity to be heard on the point on which the LCRO based her decision and, in addition, the LCRO’s delay in hearing and determining the application for review was such that it would have been unfair for the  matter  to  continue.2  I  also  said  that  there  was   “considerable  force”   in   Mr Katz QC’s submissions for C that the conduct of which Ms Rogers complained had been proper as a matter of law. However, I did not decide the point because I had not had the benefit of full argument.

Costs against the LCRO

[4]                 Counsel for the LCRO referred me to several decisions to the effect that the Court will only award costs against the LCRO if necessary to register disapproval of the LCRO’s conduct. Counsel submitted that is not the case here, and so no award should be made.

1      C v Legal Complaints Review Officer [2019] NZHC 1763.

2 At [29].

[5]                 While accepting that an award of costs against the LCRO is unusual, Mr Katz submitted that the LCRO’s conduct, delay, and errors of law warrant a costs award.

[6]                 Thomas J recently discussed the relevant principles in G v LCRO, another successful application for judicial review of an LCRO decision.3 Following other decisions of this Court,4 the Judge confirmed that the LCRO is a quasi-judicial officer, and adopted the Court of Appeal’s statements in Coroner’s Court v Newton that:5

... Costs will only be awarded (even in judicial review proceedings) against judicial officers such as Justices or Coroners in the rarest of circumstances when such a judicial officer has done something which calls for strong disapproval. It is certainly not the practice to grant costs against Justices or a Coroner merely because that person has made a mistake in law. It must be shown that the judicial officer concerned has acted perversely, oppressively or in bad faith.

[…]

In short, errors of law will not by themselves support an award of costs; errors of process will normally not support an award of costs; and judicial misconduct in the way in which the hearing is conducted will normally have to be of a particularly egregious kind for costs to be awarded. The question is not whether the applicant is in some sense “deserving” of costs - in a large sense, such a person often will be. The critical point is that the order for costs is an expression of disapproval of the conduct of the judicial officer in character. There must be a clear basis for such an order.

[7]                 Newton was an application for judicial review of a Coroner’s decision to discharge an order suppressing Dr Newton’s evidence to an inquest, without first hearing Dr Newton on whether the order should be discharged. Publication of the evidence could have affected Dr Newton adversely. The Court of Appeal said this was an “elementary error” of procedural fairness.6 Even that, however, did not provide a “clear basis” for an award against the Coroner.7

[8]                 In this case, the LCRO failed to put to C the point on which she made her decision. This was a similar error to that in Newton. As I have said, there was also

3      G v Legal Complaints Review Officer [2019] NZHC 1380.

4      U v Legal Complaints Review Officer HC Auckland CIV-2010-404-6350, 3 June 2011 at [54]- [62]; Zhao v Legal Complaints Review Officer [2013] NZHC 1052, [2013] NZAR 917 at [18]; Deliu v Hong HC Auckland CIV-2011-404-3758, 18 December 2012 at [13].

5      Coroner’s Court v Newton [2006] NZAR 312 (CA) at [44] and [46].

6      At [39(b)].

7 At [46].

force in Mr Katz’s argument that the LCRO erred in law. However, neither of these matters provides a clear basis for making an order for costs.

[9]                 Nor does the LCRO’s significant delay in hearing the application warrant an “expression of disapproval”. That could have occurred for reasons outside the particular officer’s control.

[10]              It follows that I decline to make an award of costs or disbursements against the LCRO.

Costs against Ms Rogers

[11]              Mr Katz also submits that I should make an award of costs against Ms Rogers because C would not have needed to bring the proceedings had Ms Rogers not complained to the NZLS, and then sought review by the LCRO.

[12]              I do not accept this submission. C’s application was a response to the LCRO’s decision and the manner in which the LCRO conducted herself. Ms Rogers was entitled to seek LCRO review. Moreover, her only involvement in this proceeding was to inform the Court that she had no interest in being involved in the proceedings. It follows that I also decline to award costs or disbursements against Ms Rogers.

Result

[13]              The parties’ costs in respect of C’s application for judicial review are to lie where they fall.

Peters J