Diamond Laser Medispa Taupo Limited v Human Rights Review Tribunal

[2020] NZHC 247

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-84

[2020] NZHC 247

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

An Application for Judicial Review (Certiorari and Prohibition)

BETWEEN

DIAMOND LASER MEDISPA TAUPO LIMITED

First Applicant

AND

OLIVIA JANE BLAKENEY-WILLIAMS

Second Applicant

AND

RICHARD HUGH BLAKENEY- WILLIAMS

Third Applicant

AND

THE HUMAN RIGHTS REVIEW TRIBUNAL

First Respondent

AND

ZELINDA DORIA

Second Respondent

Hearing:

On the papers

Appearances:

G H J Brant and K R Holland for Applicants No appearance for First Respondent

S Judd and E Tait for Second Respondent

Judgment:

21 February 2020

JUDGMENT OF GRICE J

(Costs)

DIAMOND LASER MEDISPA TAUPO LIMITED v HUMAN RIGHTS REVIEW TRIBUNAL [2020] NZHC

247 [21 February 2020]

[1]    I dismissed an application for judicial review of a decision of the Human Rights Review Tribunal brought by the applicants (I refer to as Diamond Laser).1

[2]Ms Doria now seeks costs.

[3]    Ms Doria had filed proceedings in the Human Rights Review Tribunal through the office of Human Rights Proceedings as her legal representatives. Ms Doria alleged discrimination due to sex (including pregnancy) arising out of an employment relationship with Diamond Laser. The applicants applied to the Tribunal strike out the proceedings. That application failed and the Tribunal determined that it had jurisdiction to deal with Ms Doria’s complaint.

[4]    Diamond Laser applied for judicial review of that decision to this court. I dismissed the judicial review application determining that the Tribunal was correct to hold that it had jurisdiction to hear Ms Doria’s complaint under the Human Rights Act 1993.2

[5]    There is no dispute as to the quantum of costs claimed. Actual costs and disbursements are claimed. They are slightly less than would be awarded on a 2A basis. Diamond Laser accepted the amount claimed was appropriate. The costs and disbursements claimed total $11,065.58.

[6]    The sole issue is whether the second respondent should have costs at all because, as Diamond Laser submits, the Director of the Office of Human Rights Proceedings had no power to act for litigants in these proceedings at no cost to the litigant. This argument is based on the wording of s 90(3) of the Human Rights Act giving the Director powers to represent litigants before the Human Rights Review Tribunal in “related proceedings”. Diamond Laser argues that “related proceedings” do not include judicial review proceedings.

[7]The definition in the Act of “related proceedings” is:3

1      Diamond Laser Medispa Taupo Limited v The Human Rights Review Tribunal [2019] NZHC 2809.

2      Diamond Laser Medispa Taupo Limited v The Human Rights Review Tribunal [2019] NZHC 2809.

3      Human Rights Act, s 90(3).

(3)       … related proceedings, in relation to proceedings before the Tribunal, means proceedings of any of the following descriptions:

(a)an appeal to the High Court against a decision of the Tribunal:

(b)proceedings in the High Court arising out of—

(i)the statement of a case under section 122; or

(ii)the removal of proceedings or a matter at issue in them under section 122A:

(c)an appeal to the Court of Appeal against a decision of the High Court made in proceedings described in paragraph (a) or paragraph (b):

(d)an appeal to the Supreme Court against—

(i)a decision of the High Court made in proceedings described in paragraph (a) or paragraph (b); or

(ii)a decision of the Court of Appeal made in proceedings described in paragraph (c).

[8]    Diamond Laser says that list of related proceedings is exhaustive. Judicial review is not mentioned. Therefore, it says the representation of Ms Doria in the judicial review proceeding is outside the authority of the Act. The argument is that the funding provided by the Crown to the Human Rights Commission and the Director would be expended for a function outside the Director’s statutory functions and therefore the Human Rights Commission’s authority. Therefore, the expenditure is illegal and its recovery ought not to be condoned by this Court by awarding costs.

[9]    Therefore, Diamond Laser argues that the Court should exercise its discretion to refuse costs.

[10]In response the second respondent says:

(a)Whether or not the Director could act for Ms Doria it should have been a matter dealt with by way of an application for judicial review of the Director’s decision to represent Ms Doria at the judicial review. It should not be dealt with in an indirect way by refusing a costs order .

(b)The failure to include judicial review proceedings in the list of “related proceedings” in s 90 was an oversight.  The Human Rights Act should

be interpreted in a way that is consistent with the purposes which is to recognise human rights and New Zealand’s obligations under various international conventions in that regard. To that extent the interpretation of when the Office of Human Rights Proceedings may represent a claimant should be interpreted liberally such as to allow the claimant representation with proceedings such as judicial review.

[11]   Mr Judd, for Ms Doria, emphasised that when it comes to matters of the fundamental rights which the Act recognises, any interpretation should be in favour of Ms Doria to safe guard her right to be free from discrimination and employment. He says that Ms Doria’s remedy lies in her claim to the Tribunal. The judicial review application had sought to prevent a hearing in the Tribunal and is so intimately related to the Tribunal claim that the representation by the office should be permitted.

[12]   Mr Judd, for Ms Doria, says the likely outcome, if the Office of Human Rights proceedings was not permitted to act for Ms Doria would have meant the Court needed to consider appointing counsel to assist and/or for amicus curiae, in the absence of a contra indicator.

[13]   Mr Judd says in any event that whether or not the Director is able to represent Ms Doria should not be dealt with in a costs application. It has not been fully argued and should have been the subject of judicial review not a sidewind submission about costs.

[14]   I note that the matter of the Office representing Ms Doria was an issue raised as a preliminary matter at a pre-trial conference.4 No application was made. Diamond Laser then decided it would proceed with the hearing without taking the objection at the hearing, but reserved its position to argue the point in relation to costs.

4      Diamond Laser Medispa Taupo Limited v The Human Rights Review Tribunal, Minute of Clark J, 23 April 2019. No application was made by Diamond Laser. The Court declined to take any steps in the absence of a formal challenge to Ms Doria’s representation.

Analysis

[15]   Rule 14 of the High Court Rules 2016 deals with costs. It allows a wide discretion to the Court. Costs usually follow the event.5 Costs in a judicial review proceeding are awarded following those general principles.6

[16]   As the matter was not argued as a substantive issue in the judicial review there has been no determination on whether or not the Director had power to represent and/or fund the representation of Ms Doria in the judicial review.

[17]   The substantive judicial review was argued in full, the Court had the benefit of the legal representation funded by the Commissioner to argue Ms Doria’s response to the judicial review. In my view it is now too late to object to the representation. As the objection was not taken and argued at the substantive hearing the point cannot now be taken in order to deny costs to the successful party.

[18]   The substantive point is whether the Director was able under the legislation to represent Ms Doria. If that matter had been argued as part of the judicial review the Court would have the benefit of full submissions and possibly evidence concerning the operations of the Commission.

[19]   In addition, if the representation issue had been brought as a judicial review point Ms Doria may have taken different steps given she might have then been exposed to a costs award against her personally.7 Ms Doria may have chosen to try to obtain other funding, argued the matter herself or not responded at all to the judicial review application. As is usual in such cases the Tribunal did not take an active role in defending its own determination. The Court may well have appointed an amicus to assist it.

[20]   There is a wide discretion allowed to the Court in making an award of costs. The primary rule is that generally the successful party is entitled to costs. There has

5      High Court Rules 2016, r 14.2(a).

6      McGechan on Procedure, (looseleaf ed Thompson Reuters) at JR4.11 (31/3/17).

7      Human Rights Act, s 92C(5) provides that the award of costs for a person represented by the Director must be paid by that office.

been no determination on whether the Office was entitled to represent Ms Doria. Therefore, I proceed on the basis she was properly represented by the office.

[21]   Ms Doria was the successful party and no criticism is made of the level of the costs. In my view the costs have been incurred and are payable. McGuire8 confirms there is no impediment to costs being awarded in respect of an employed solicitor, which is the case here.

[22]   I do not consider there is any reason not to follow the usual rule that the successful party be awarded costs.

[23]   Accordingly I exercise my discretion and award costs in favour of the second respondent against the first, second and third applicants, jointly and severally, for the amount of actual costs and disbursements as set out in the memorandum of counsel for the second respondent as to costs dated 8 November 2019.

Grice J

Solicitors:
Stace Hammond, Lawyers, Hamilton

8      McGuire v Secretary for Justice [2018] NZSC 116, (2019) 1 NZLR 335 at [55] and [88].