Geary v Professional Conduct Committee HC Auckland CIV-2009-485-002641

[2011] NZHC 582

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-002641

IN THE MATTER OF     An appeal under s 106 Health Practitioners

Competence Assurance Act 2003

BETWEEN  IAN RUSSELL GEARY Appellant

ANDPROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing:         On the papers

Counsel:         A Beck for Appellant

P J Radich and L I Van Dam for Respondent

Judgment:      14 June 2011 at 11:30 AM

I direct the Registrar to endorse this judgment with a delivery time of 11.30am on the

14th day of June 2011.

JUDGMENT OF MACKENZIE J AS TO COSTS

[1]      By a judgment delivered on 22 July 2010, Wild J dismissed the appellant’s appeal  to  this  Court  against  decisions  of  the  Health  Practitioners  Disciplinary Tribunal finding the appellant guilty of professional misconduct amounting to both malpractice and serious negligence and imposing penalties, including cancellation of the appellant’s registration as a psychologist.   By a further judgment delivered on

30 September 2010, Wild J dismissed an application by the appellant for leave to

appeal against the earlier judgment.

GEARY V PROFESSIONAL CONDUCT COMMITTEE HC WN CIV-2009-485-002641 14 June 2011

[2]      The  respondent  now  applies  for  costs.    Because  of  Wild J’s  subsequent appointment to the Court of Appeal, the application has been referred to me for decision.

[3]      In its application for costs, the respondent notes the appellant’s advice that the appellant was granted legal aid in respect of both the appeal and the application for leave to appeal to the Court of Appeal.  Under s 40(2) of the Legal Services Act

2000, no order for costs may be made against the appellant unless the Court is satisfied that there are exceptional circumstances.  Section 40(3) provides:

In determining whether there are exceptional circumstances under subsection (2), the court  may take  account  of, but is  not limited to, the following conduct by the aided person:

(a)       any conduct that causes the other party to incur unnecessary cost:

(b)      any failure to comply with the procedural rules and orders of the court:

(c)       any misleading or deceitful conduct:

(d)      any unreasonable pursuit of 1 or more issues on which the aided person fails:

(e)       any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:

(f)       any other conduct that abuses the processes of the court.

[4]      Counsel for the respondent relies particularly on paras (a) and (d) of that provision.   As to para (a), counsel for the respondent submits that the appellant’s appeal to the High Court and subsequent application for leave to appeal to the Court of Appeal were preceded by a series of related but wholly unsuccessful challenges against the respondent, which are detailed in counsel’s memorandum.   Counsel submits that the persistent legal challenges were brought by the appellant in a bid to prevent the Tribunal hearing the professional misconduct charge against him and that, having failed in that bid, the appellant then sought to challenge the Tribunal’s finding of professional misconduct and its decision to strike him off the register of psychologists.   The respondent submits that this string of unsuccessful legal challenges has undoubtedly caused the respondent to incur unnecessary cost.

[5]      As to para (d), the respondent submits that the crux of the appellant’s appeal was that his conduct could not constitute professional misconduct.  Counsel submits that the appellant’s position on this issue was “soundly rejected by Wild J in both the decision on the appeal and the leave decision”.  Counsel submits that that very issue was  previously  raised  and  rejected  in  the  earlier  litigation.    Counsel  for  the respondent accordingly submits that the appellant’s continued pursuit of that issue was  unreasonable.     Counsel  submits  that  the  present  is  an  exceptional  case warranting an award of costs.  The respondent submits that as its source of income is practising fees of registered psychologists, it is the appellant’s peers and indirectly the public who have borne the burden of the appellant’s “saga of litigation”.  It seeks costs on a category 2B basis totalling $9,024.

[6]      In his memorandum in response, counsel for the appellant submits that there are no exceptional circumstances.   Counsel notes the high threshold referred to in Awa v Independent News Auckland Ltd1 and Laverty v Para Franchising Ltd.2

[7]      As to the issue of conduct causing unnecessary cost, counsel for the appellant submits that the conduct relied upon must be conduct in relation to the proceeding to which the costs application relates.  Counsel refers to the decision of the Supreme Court in Paper Reclaim Ltd v Aotearoa International Ltd3 on the question of conduct relevant for the purposes of increased or indemnity costs and notes that the Court of Appeal has applied that principle to costs generally in Boyko v Body Corporate

205963.4   Counsel submits that the respondent has not identified any conduct of the

appellant that increased the costs to it in the appeal or application for leave to appeal and submits that the appellant’s points were focused and were presented concisely. He submits that the conduct of the appellant did not deviate from what is expected of a litigant in the High Court.

[8]      As to the alleged unreasonable pursuit of issues, counsel submits that there was a fundamental distinction between the issues involved in the judicial review

proceedings and the appeal proceedings.  He submits that the question in the judicial

1      Awa v Independent News Auckland Ltd [1996] 2 NZLR 184 (HC); [1997] 3 NZLR 590 (CA).

2      Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA).

3      Paper Reclaim Ltd v Aotearoa International Ltd [2007] 3 NZLR 169.

4      Boyko v Body Corporate 205963 [2010] NZCA 602.

review context was whether the appellant’s disclosures about a patient could constitute misconduct, whereas the question in the appeal was whether it did constitute misconduct.  He submits that that is not the same issue and that it was not unreasonable for the appellant to pursue the appeal in the way that he did.

[9]      On the question of whether there has been conduct causing the respondent to incur unnecessary cost,  I accept Mr Beck’s submission that the inquiry must be confined to conduct in this particular litigation.  When the inquiry is so focused, I can see nothing in Wild J’s judgment which indicates that any conduct in relation to the appeal itself has caused unnecessary cost, to a level which would give rise to exceptional circumstances.  The appellant was entitled to pursue his right of appeal. It is clear from the two judgments of Wild J that he formed an adverse view of the appellant’s  actions  in  pursuing  what  he  described  as  a  crusade  against  the complainant “doggedly if not obsessively pursued”.   Wild J’s comments are principally directed to the appellant’s actions which were under consideration in the disciplinary proceedings, and on the appeal.  They do not seem to me to be directed at the way in which the appeal itself was conducted.

[10]     On the question of whether there has been unreasonable pursuit of issues, I do not think that, in pursuing an appeal against a decision which had the effect of depriving him of his professional standing, the appellant can be said to have been acting unreasonably.  I consider that there is force in Mr Beck’s submission that the issues in the earlier litigation, and on the appeal, were different. The earlier litigation over whether the appellant’s actions could constitute professional misconduct could not have given him any cause for optimism as to the outcome in the disciplinary proceedings on whether those actions did constitute professional misconduct. However,  I  do  not  consider  that  the  appellant’s  pursuit  of  the  appeal,  or  the application for leave to appeal can be categorised as an unreasonable pursuit of issues.  A professional person should not lightly be held to be acting unreasonably in pursuing a right of appeal against a disciplinary decision affecting the professional’s right to practice.

[11]     For  these  reasons  I  hold  that  there  are  not  in  this  case  exceptional circumstances justifying a departure from the ordinary rule that no costs are to be awarded against a legally aided person.  I decline to order costs.

[12]     Counsel for the respondent did not, in the alternative, seek an order under s 40(5) specifying what order for costs would have been made against the appellant if s 40 had not affected the position.  For completeness, I should do so, for what it is worth.  I specify that, but for the operation of s 40(2), I would have awarded costs on

a 2B basis in the amount claimed by the respondent, namely $9,024.

Solicitors:           Gault Mitchell, Wellington for Appellant

Minter Ellison Rudd Watts, Wellington for Respondent

“A D MacKenzie J”