G v Legal Complaints Review Officer

[2019] NZHC 1380

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE APPLICANT

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-510

[2019] NZHC 1380

IN THE MATTER

of an application for judicial review

BETWEEN

G

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

Respondent

NEW ZEALAND LAW SOCIETY

Intervenor

On the papers

Counsel:

A O’Connor for Applicant

A M Powell and A P Lawson for Respondent P I C Comrie-Thomson for Intervenor

Judgment:

18 June 2019

JUDGMENT OF THOMAS J (COSTS)

[1]    Mr G successfully  sought  judicial  review  of  the  Legal  Complaints Review Officer’s (LCRO) decision to publish his name. While I indicated a provisional view that Mr G was entitled to costs, I invited memoranda from counsel which have now been received and considered.

G v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 1380 [18 June 2019]

[2]    Counsel for the LCRO submits that costs and disbursements cannot be awarded against the LCRO as a quasi-judicial officer and her actions in this case do not meet the threshold for an award of costs against a judicial officer.

[3]    Mr G seeks the indulgence of the Court to make a costs determination in his favour (even at a reduced rate) so as to reimburse him for his out of pocket expenses in bringing this litigation. Mr O’Connor, for Mr G, stressed that the case was not brought as a matter of choice; rather it was a necessary step to protect Mr G’s reputation within his professional career.

[4]    In Mr O’Connor’s submission, there is a strong distinction between a judicial officer, such as “Justices or Coroners” as opposed to a quasi-judicial officer. He says the roles of a judicial officer and a quasi-judicial officer are conceptually different. A judicial or quasi-judicial officer’s immunity from liability in tort is quite different from costs that historically “follow the event”, irrespective of the function of the unsuccessful party.

[5]    On the basis there was no claim for costs in relation to it, the Law Society was neutral as to the issue of costs between Mr G and the LCRO.

The law

[6]    Rule 14.2(1)(a) of the High Court Rules 2016 provides that costs are awarded to the party who succeeds unless there are exceptional reasons. However, an award of costs is discretionary.1

[7]    In Coroner’s Court v Newton, the Court of Appeal held that costs will only be awarded against a judicial officer or body in the rarest of circumstances:2

In this subject area it is important to keep first principle squarely in mind. 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 made a mistake in law. It must be shown

1      High Court Rules, r 14.1.

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

that the judicial officer concerned has acted perversely, oppressively or in bad faith.

[8]    The question of whether the LCRO is a quasi-judicial officer was addressed in U v Legal Complaints Review Officer.3 Faire J listed the following provisions of the Lawyers and Conveyancers Act 2006 as illustrating that the Officer is a quasi-judicial officer:4

(a)Section 206(2) of the Lawyers and Conveyancers Act 2006 grants the first defendant the power to hold hearings or, with the consent of the parties, to reach a determination on the papers;

(b)Section 206(5) states that the first defendant is entitled to regulate her own procedure, subject to the requirements of the Lawyers and Conveyancers Act 2006 and rules made thereunder;

(c)Counsel and witnesses have the same privileges and immunities as if they were in a court of law when appearing before the first defendant pursuant cls 8 and 9 of the Third Schedule of the Lawyers and Conveyancers Act 2006;

(d)By s 211, the first defendant has the power to confirm, modify or reverse any decision of a Standards Committee and to exercise any of the powers which were, or could have been, exercised by the Standards Committee;

(e)By s 209 of the Lawyers and Conveyancers Act 2006, the LCRO has the power to direct the Standards Committee to reconsider the matter and, in that case, the Standards Committee must have regard to the direction given by the first defendant and the reasons for it;

(f)The first defendant is entitled to order costs pursuant to s 210(1) of the Lawyers and Conveyancers Act 2006. Such orders are enforceable as a final judgment pursuant to s 215(1);

(g)Clause 11 of the Third Schedule provides the first defendant with an immunity from civil or criminal liability in relation to acts or omissions in the course of carrying out her functions, duties or powers unless she has acted in bad faith; and

(h)Section 262 provides that wilfully obstructing or deceiving the LCRO is an offence punishable on summary conviction to a fine not exceeding $25,000.

[9]    This approach has been followed in subsequent High Court decisions. For example, Woolford J in Zhao v Legal Complaints Review Officer described the LCRO as

3      U v Legal Complaints Review Officer HC Auckland CIV-2010-404-6350, 3 June 2011 at [54]– [62].

4 At [54].

“a quasi-judicial officer … therefore prima facie immune from costs awards”.5 On this basis, Woolford J identified the issue when considering whether costs should be awarded as whether the LCRO has acted oppressively, perversely, or in bad faith so as to justify a costs award being made against her. In Deliu v Hong, Winkelmann J stated, “... [I]t will be rare for costs to be awarded against a quasi-judicial officer such as the LCRO”.6

[10]   The issue is whether an order for costs is necessary to express disapproval of the conduct of the judicial officer or body:7

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.

[11]   In Ms Powell’s submission, for the LCRO, any error in this case did not fall into the category of “rarest of circumstances” which would call for strong disapproval by this Court in the form of an order for costs.8 She notes that there have been no findings of perverse or oppressive conduct or bad faith against the LCRO. Rather, the errors identified were those of law and process only.

[12]   I accept that the errors identified in this case were errors of law and process only, and that such errors would not normally support an award of costs against a judicial officer or body, as noted in Coroner’s Court v Newton.9

[13]   I also accept there is no basis for criticism of the LCRO’s conduct before this Court. The LCRO abided the decision of the Court, save on the question of costs:10

5      Zhao u Legal Complaints Review Officer [2013] NZHC 1052, [2013] NZAR 917 at [18].

6      Deliu v Hong HC Auckland CIV-2011-404-3758, 18 December 2012 at [13].

7      Coroner’s Court v Newton, above n 2, at [46].

8 At [44].

9 At [46].

10 This is consistent with the principle noted by McCarthy P in New Zealand Engineering, Coach Building, Aircraft, Motor and Related Trades Industrial Union of Workers v Court of Arbitration [1976] 2 NZLR 283 at 285.

Generally, when judicial bodies or judicial officers are so joined, they take no part in the argument and abide the judgment of the court.

[14]   In Mr O’Connor’s submission, the application of the principle in Coroner’s Court v Newton in this case would create an inequality in the system, as a litigant cannot get costs against a quasi-judicial officer if successful but would be liable for costs if unsuccessful. I note Ms Powell’s submission in reply that it would be rare for an abiding judicial or quasi-judicial officer or body to seek costs against an unsuccessful litigant.

Result

[15]   For these reasons, I decline to award costs and disbursements to Mr G. They are to lie where they fall.

Thomas J

Solicitors:

Iorns Legal, Porirua for Applicant Crown Law, Wellington for Respondent

Meredith Connell, Auckland for Intervenor