Guo v Human Rights Review Tribunal
[2024] NZHC 3367
•12 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1142
[2024] NZHC 3367
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of a decision from the Human Rights Review Tribunal dismissing any application for
further discovery against the respondent in [2022] NZHRRT 6
BETWEEN
YAN GUO
Applicant
AND
HUMAN RIGHTS REVIEW TRIBUNAL
First respondent
PRICEWATERHOUSECOOPERS (PwC)
Second respondent
Judgment
(on the papers):
12 November 2024
COSTS JUDGMENT OF ROBINSON J
This judgment was delivered by me on 12 November 2024 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Bell Gully, Auckland Crown Law
Copy to: Y Guo
GUO v HUMAN RIGHTS REVIEW TRIBUNAL & ORS [2024] NZHC 3367 [12 November 2024]
Background
[1] This judicial review proceeding was one of many proceedings arising out of Ms Guo’s longstanding and heartfelt grievance against her former employers, PricewaterhouseCoopers (PwC). Ms Guo was employed by PwC from about February 2009 until approximately January 2010.
[2] The Human Rights Review Tribunal (the Tribunal) dismissed an application by Ms Guo for further and better discovery from PwC as well as a challenge by Ms Guo to PwC’s claims of privilege. On 22 December 2023, I dismissed Ms Guo’s application for judicial review of the Tribunal’s decision.1
[3]PwC now seeks costs. Ms Guo opposes.
Submissions
PwC
[4] PwC says that it is entitled to costs as the successful party in Ms Guo’s application for judicial review. PwC seeks costs on a 2B basis in the sum of $19,359, as well as $100 in disbursements.
[5] PwC submits that it was reasonable for it to take a “normal” amount of time for each step claimed. It says that judicial review proceedings are not routine and generally involve at least an average amount of time to address. It also contends that Ms Guo’s statement of claim and her submissions did not identify the traditional grounds of review, requiring counsel to determine “the crux of each complaint and relate that to the relevant grounds and case law”.
[6] As to the question of whether PwC’s interest in the proceedings was direct or indirect, PwC says that the application was, in substance, against PwC with Ms Guo ultimately seeking relief from PwC. Further, PwC says it had a legitimate interest in responding to serious allegations made by Ms Guo, including that its general counsel had lied.
1 Guo v Human Rights Tribunal & Ors [2023] NZHC 3883 [Decision].
Ms Guo
[7] Throughout her submissions, Ms Guo relies on the Court’s earlier comments concerning the appropriate costs scale in this proceeding, made in an earlier decision to decline PwC’s application for security for costs. In particular, the Court considered that PwC had only an “indirect interest” in the substance of Ms Guo’s proceeding, and that its choice to act as contradictor should not come at her expense.2
[8] Ms Guo points out that PwC did not appeal the Court’s earlier decision not to award security for costs. She submits that any costs award should be constrained by these earlier observations.
[9] Ms Guo submits further that PwC has unreasonably refused to enter into settlement discussions. And she points out that PwC has already been awarded costs in relation to her misconceived attempt to appeal the Tribunal’s decision in circumstances where she had no right of appeal.3
Discussion
Costs
[10] Costs are at the Court’s discretion.4 They ordinarily follow the event.5 The award of costs should reflect the complexity and significance of proceedings.6
[11] PwC is entitled to costs. PwC had its own direct interest in defending the proceedings. Although the Court dismissed PwC’s security for costs application, in the course of doing so it recorded its “strong sense” that Ms Guo’s judicial review of the Tribunal’s decision “is brought for collateral pursuit of PwC”; and that “Ms Guo appears dissatisfied to the Tribunal’s substantive decision rather than any reviewable deficiency in the course of its determination”.7
2 Guo v Human Rights Tribunal [2022] NZHC 2937 [Security for Costs Decision] at [9].
3 That appeal was struck out.
4 High Court Rules 2016, r 14.1.
5 Rule 14.2(a).
6 Rule 14.2(b).
7 Security for Costs Decision at [7].
[12] Having received and considered Ms Guo’s written and oral submissions, I am satisfied that Ms Guo’s proceeding was indeed brought in pursuit of PwC. It challenged the merits of the Tribunal’s decision and sought specific remedies against PwC. Ms Guo’s statement of claim initially named PwC as the sole respondent. Her application did not specifically refer to traditional grounds of judicial review.
[13] In these circumstances I do not consider the fact that the Court was also assisted by having a contradictor, in circumstances where the Tribunal appropriately abided, diminishes PwC’s success or its entitlement to costs. The position of parties like PwC in judicial review proceedings was aptly described by Asher J in Diagnostic Medlab Limited v Auckland District Health Board:8
[12] In administrative law, the circumstances of the joinder and involvement of the parties who have the benefit of the administrative decision that has been challenged are different from the joinder and involvement of defendants in the ordinary run of civil cases. In those civil cases defendants are joined because they are alleged to have an obligation, or breached an obligation, to the plaintiff, and because relief is sought against them. The outcome of the proceedings involves either a failure of the causes of action against the successful defendant or the proof of the causes of action against the unsuccessful defendant. This is not so, when those who have benefited from a challenged administrative decision are joined. They are vitally interested parties. They will support the decision-making process from which they have benefited, but their own conduct is not in focus.
[13] … Sometimes it may be that the decision beneficiaries take on the whole burden of the defence, with the decision-maker abiding the decision of the Court. In such a situation the decision beneficiary may well be liable for costs.
[14] In the slightly unusual circumstances of this case I consider that the converse is also true; a successful decision beneficiary such as PwC is also entitled to costs.
[15] There is little else to support Ms Guo’s argument that she should not be liable for costs. I do not accept her submission that there was a public interest in the litigation. It concerned routine interlocutory orders made by a specialist Tribunal.
[16] Ms Guo says that the application for security for costs was ill-founded or without merit, and accordingly PwC’s conduct in applying means that it is either not
8 Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV-2006-404-4724, 13 June 2007.
entitled to costs or costs should be reduced. I do not agree. Ms Guo acknowledged at the time PwC’s application for security for costs was heard that she was impecunious. Moreover, the application for security for costs was declined only by the “slimmest of margins”, with the Court observing that the continuation of the judicial review proceeding was Ms Guo’s only available remedy in the circumstances.9
[17] In these circumstances, there is nothing about PwC’s conduct in applying for security for costs that ought to result in the reduction of an otherwise appropriate costs award. Nor did the application result in any delay to proceedings.
[18] Finally, Ms Guo submits that PwC unreasonably rejected her settlement offer. In her submissions, Ms Guo refers interchangeably to both a “settlement offer” and an offer “inviting PwC to have a settlement discussion”. But ultimately no evidence is before me of any settlement offer being made or rejected. It is therefore not possible to assess whether Ms Guo ever made a settlement offer, or let alone whether PwC reasonably or unreasonably rejected any such offer.
Disbursements
[19] I have examined the disbursements claimed by PwC and I am satisfied that they should also be included in the costs awarded.
Result
[20]The application is granted.
[21]I award PwC $19,359 in costs, as well as $100 in disbursements.
Robinson J
9 See n 7 above.
0
2
1