Gardner-Hopkins v National Standards Committee (no 1) of the New Zealand Law Society

[2021] NZHC 1979

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000656

[2021] NZHC 1979

UNDER

Section 253 of the Lawyers and Conveyancers Act 2006

BETWEEN

JAMES DESMOND GARDNER-HOPKINS
Appellant

AND

NATIONAL STANDARDS COMMITTEE (NO 1) OF THE NEW ZEALAND LAW SOCIETY

Respondent

Hearing:	On the papers
Judgment:	2 August 2021

JUDGMENT OF HINTON J

(Costs)

This judgment was delivered by me on Monday, 2 August 2021 at 4 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Luke Cunningham Clere, Wellington. Duncan King Law, Auckland.

J Long, Auckland.

JK Grimmer, Auckland.

GARDNER-HOPKINS v NATIONAL STANDARDS COMMITTEE (NO 1) OF THE NEW ZEALAND LAW SOCIETY [2021] NZHC 1979 [2 August 2021]

[1]                 This is an application for costs against the National Standards Committee  (No 1) of the New Zealand Law Society (the Committee) following an appeal of a decision regarding name suppression.1

[2]                 The appellant, Mr Gardner-Hopkins, faced charges in the Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) relating to sexual misconduct some years ago while he was a partner at Russell McVeagh. Prior to the hearing of those charges he sought name suppression from the Tribunal, which granted name suppression but only to the commencement of the hearing. The appellant then succeeded in his appeal before me against the Tribunal’s decision. I granted name suppression down to determination of the charges.

[3]                 On the name suppression application before the Tribunal, the Committee abided the decision. On the appeal the Committee took a position actively defending the Tribunal’s decision. The appellant does not seek costs relating to the application before the Tribunal. He seeks costs only in relation to his successful appeal.

Discussion

[4]                 There is a presumption that costs follow the event. It is for the Committee to persuade me otherwise.

[5]                 The Committee says this is a case where I should exercise my discretion under rr 14.1 and 14.7(e) of the High Court Rules 2016 to refuse to award costs or, at least, to reduce any award of costs. Rule 14.1 provides that costs are entirely at the discretion of the Court. Rule 14.7(e) provides that costs may be refused or reduced on the basis that “the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding”.

[6]                 The Committee relies on the statements of principle in Roberts v Professional Conduct Committee of the Nursing Council of New Zealand where the Court of Appeal

1      Name Suppressed v National Standards Committee (No 1) of the New Zealand Law Society

[2021] NZHC 1205.

considered the issue of awarding costs against professional disciplinary bodies.2 The case involved a nurse who had pleaded guilty to one charge of professional misconduct and then successfully appealed against sentence. Mr Roberts then further appealed the Judge’s refusal to award him costs. The Court stated that in professional disciplinary cases, the usual presumption that costs follow the event applies. The Court recognised however that the presumption may be more easily displaced on account of the public function of such professional conduct committees,3 which they said will be a “factor in every appeal” relevant to “whether costs may be awarded and if so in what amount”.4 In Roberts the Court ultimately held that the practitioner should receive costs, reflecting his success and the fact that the appeal was fairly routine.

[7]                 The statements of principle in Roberts were affirmed in a second Court of Appeal decision of Lagolago v Wellington Standards Committee 2,5 a case of a practitioner who had successfully appealed to the High Court against a tribunal decision that found her guilty of negligence and incompetence as a lawyer. Again the practitioner was awarded costs on her successful appeal, although not her costs in the Tribunal.

[8]The Committee relies particularly on:

(a)The fact that it abided the Tribunal’s decision in terms of interim suppression.

(b)In a case such as this the public interest required a contradictor and there was no other contradictor available given the urgency of the situation. Appointment of an amicus would not have been feasible.

2      Roberts v Professional Conduct Committee of the Nursing Council of New Zealand

[2014] NZCA 141, (2014) 21 PRNZ 753.

3 At [29].

4      At [27]–[28].

5      Lagolago v Wellington Standards Committee 2 [2018] NZCA 406, (2018) 24 PRNZ 763.

(c)Strong views had been expressed by the complainants that name suppression should not be granted and there was clear public interest in the issue.

(d)The charges have now been heard. The appellant was found guilty on all charges of misconduct and he made no application to extend name suppression such that his name is now firmly in the public arena.

[9]                 Counsel for the appellant submits that while the broader ambit of this proceeding has attracted media attention, the appeal itself was routine. They submit the reason for seeking name suppression did not raise issues of public importance and the basis for name suppression was unrelated to the broader issues of the case which attracted media attention. Therefore the Standards Committee’s position on appeal could not have reflected wider public importance of the issue.

[10]              The appellant also stresses comments of the Supreme Court in Manukau Golf v Shoye Venture Ltd:6

For the purposes of costs in the appellate court, it does not matter why the Judge went wrong. The losing party on the appeal almost always has to pay costs to the winning party – and in that sense “pays for” the error (as found) of the judge below. That is the consequence of a respondent fighting to maintain its win and supporting the findings of the judge below. If the respondent accepts the judge below was wrong, then it should settle with the appellant or not seek to defend the appeal. In those circumstances, it would avoid liability for costs.

(emphasis in original)

[11]              Counsel submits that in accordance with these observations, the Standards Committee became liable for costs simply because it sought to uphold the Tribunal’s decision on appeal, consistent with the usual presumption still applicable in disciplinary cases.

[12]              The appellant submits that the Standards Committee could have adopted a more neutral position, but instead chose to adopt a partisan approach as a contradictor. He says this position was similar to the roles adopted by the professional committees

6      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305, at [13].

in Roberts and Lagolago where costs were ultimately awarded on appeal to the appellants.

Conclusion

[13]              Weighing all of these matters, I consider that no costs award should be made. In this case both the proceeding and the name suppression issue were matters of strong public interest. The Committee would fairly have been subject to criticism from the complainants and the public had it not taken the stance of defending the decision of a specialist tribunal on an issue such as suppression. It was not a matter where it would seem appropriate for the Committee to concede. Also, unlike Roberts and Lagolago, this was not a case where the appeal resulted in a substantive decision in favour of the appellant, but rather one where an order was made for good reason but of only brief effect.

[14]The application for costs is dismissed.

Hinton J