Jin v District Court at North Shore

[2017] NZHC 1481

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002638 [2017] NZHC 1481

UNDER

the Judicature Amendment Act 1972

IN THE MATTER OF

the decisions of the District Court

BETWEEN

RUJING JIN Applicant

AND

DISTRICT COURT AT NORTH SHORE First Respondent

YASUKI KONISHI AND MAKIKO KONISHI

Second Respondents

On the papers

Counsel:

D B Hickson for Second Respondents

Y Lee former counsel for Applicant and respondent to indemnity costs application

Judgment:

29 June 2017

COSTS JUDGMENT OF GILBERT J

This judgment is delivered by me on 29 June 2017 at 4.45 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

D B Hickson, Auckland

Yoon Lee, Auckland

JIN v DISTRICT COURT AT NORTH SHORE & ANOR – COSTS [2017] NZHC 1481 [29 June 2017]

[1]      In a judgment delivered on 24 April 2017, I struck out Rujing Jin’s claim in these proceedings seeking judicial review of various procedural orders made (or in some cases, not made) in the course of proceedings in the District Court.1     The judicial review proceedings were filed long after the District Court proceedings had been finally determined. I was satisfied that these judicial review proceedings were pursued for the sole purpose of obtaining a different costs outcome from that determined  by  Woodhouse  J  on  an  appeal  from  the  costs  orders  made  in  the District Court.2   The proceedings were therefore an impermissible attempt to mount a collateral attack on Woodhouse J’s judgment and an abuse of the process of this Court.

[2]      Yasuki and Makiko Konishi now seek indemnity costs for these proceedings against Ms Jin’s solicitor and counsel, Yoon Lee, contending that his conduct in filing the application for judicial review involved a serious dereliction of his duty to the Court. Alternatively, they seek indemnity costs against Ms Jin.

[3]      Mr Lee resists the application for costs against him personally but he no longer acts for Ms Jin because she has now been adjudicated bankrupt.

[4]      The High Court has an inherent jurisdiction to make costs orders against solicitors and counsel acting for a party in proceedings in circumstances where they are grossly negligent or abuse the Court’s processes.  The costs order is imposed as a sanction for serious dereliction of the duty owed to the Court by one of its officers. The basis for the jurisdiction and the circumstances in which it is appropriate to

exercise it were explained by the Privy Council in  Harley v McDonald.3     It is

important  to keep  in  mind  that  the jurisdiction  should  not  be  exercised  merely because the case is judged to be hopeless.   Something more is required for the reasons explained by Sir Thomas Bingham MR in Ridehalgh v Horsefield:4

Legal representatives will, of course, whether barristers or solicitors, advise clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insist that cases be litigated. It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the

1      Jin v North Shore District Court [2017] NZHC 759.

2      Jin v Konishi [2015] NZHC 2417.

3      Harley v McDonald [2001] UKPC 18, [2002] 1 NZLR 1.

4      Ridehalgh v Horsefield [1994] Ch 205 at 234.

advice of the lawyers involved. They are there to present the case; it is . . . for the judge and not the lawyers to judge it.

It is, however, one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of the process of the court. . . . It is not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it.

[5]      The factual background and the procedural orders sought to be judicially reviewed in this proceeding are summarised in the principal judgment.   I will not repeat that here.   The principal judgment should be read in conjunction with this costs judgment because it provides the necessary context.  In light of that context and for the reasons that follow, I am satisfied that it is appropriate to make a costs order against Mr Lee personally in the circumstances of this case.

[6]      Judge M-E Sharp finally determined Mr and Mrs Konishi’s claim, apart from the issue of costs, in a judgment dated 24 April 2015.  The Judge dismissed the claim with the result that Mr Lee’s client, Ms Jin, was successful.  Despite this, Mr Lee filed the present judicial review proceedings seeking to set aside various procedural directions  that  led  to  judgment  being  entered  in  his  client’s  favour  in  the District Court. This in itself demonstrates a striking lack of professional judgment.

[7]      Further, Mr Lee ought to have appreciated that the application for judicial review had no prospect of success and was clearly an abuse of the process of the Court.  By way of example, Mr Lee sought judicial review of two minutes issued by Judge Sharp, one on 8 June 2016 and the other on 10 August 2016.   The Judge advised Mr Lee in these minutes that she could not entertain his further interlocutory applications because more than a year had elapsed since she had finally determined the proceedings and she was therefore functus officio.  Mr Lee should have known that and should not have made these applications to the District Court in the first place.  His failure to appreciate the correctness of the Judge’s response and instead to seek judicial review of these minutes in this Court shows either gross incompetence or a knowing abuse of the Court’s processes.   Either way, this was a serious dereliction of the duty owed to this Court.

[8]      Mr Lee also sought judicial review of the District Court’s administrative oversight in failing to release two minutes of Judge Hinton in September 2012 concerning the prospect of a judicial settlement conference being convened in an attempt to settle the proceeding.   It would have been obvious to any reasonably competent practitioner that there was absolutely no prospect of this Court granting relief on judicial review arising out of the failure to distribute these minutes.  This Court was never going to make an order requiring the parties to attend a judicial settlement conference in the District Court given that the proceedings had been finally determined in that Court more than two years ago, in April 2015.  Moreover, the administrative oversight in releasing these minutes did not involve the exercise of a statutory power of decision amenable to judicial review.

[9]      A further example is Mr Lee’s application for judicial review of timetable orders made in the District Court by Judge Mathers in 2012.   These orders were made by consent.  The attempt to have these timetable orders set aside on judicial review, long after the claim had been substantively determined, was seriously misconceived.

[10]     I give one further example by way of illustration.   Mr Lee sought judicial review of Judge Sharp’s minute dated 20 December 2013 referring Mr Lee to the New Zealand Law Society for it to consider disciplinary action against him.   As Mr Hickson points out, it is not clear why Ms Jin would want to seek judicial review of this minute.  It tends to confirm that Mr Lee is the driving force behind the present proceedings for judicial review.   The application to review the Judge’s referral of Mr Lee to the New Zealand Law Society was also seriously misconceived.   Well before the present judicial review proceedings were filed, the New Zealand Law Society had not only acted on the referral, the New Zealand Lawyers and Conveyancers  Disciplinary Tribunal  had  determined  that  Mr  Lee  was  guilty  of

unsatisfactory conduct.5    The Tribunal’s decision was confirmed on appeal to this

Court  12 days  prior  to  the  present  proceedings  being  filed.6    No  reasonably competent practitioner could have seriously contemplated that this Court might grant

relief on judicial review in relation to the referral that led to this investigation and

5      Auckland Standards Committee 3 v Lee [2015] NZLCDT 42.

6      Lee v Auckland Standards Committee 3 [2016] NZHC 2372.

subsequent determination, particularly give that it had been confirmed on appeal to this Court.

[11]     For the reasons given in my principal judgment, I am satisfied that these judicial review proceedings were brought in an attempt to seek an improved costs outcome from that determined by Woodhouse J on appeal from the costs decisions made in the District Court.7   It is significant that these proceedings were filed the day before the hearing of an application filed by Mr Lee on behalf of Ms Jin seeking to set  aside  a  bankruptcy  notice  served  by  Mr  and  Mrs  Konishi  in  respect  of

outstanding costs they had been awarded in the District Court, this Court, the Court of Appeal and the Supreme Court.  The purpose of this proceeding was to seek to re- visit the costs awarded in the District Court proceedings as a means of offsetting the costs ordered by these various courts.  This was a plainly futile attempt to stave off bankruptcy.  This proceeding was a blatant attempt to mount a collateral attack on Woodhouse J’s judgment and was clearly an abuse of the processes of this Court.

[12]     I regret that I have come to the conclusion that Mr Lee lost all professional objectivity in this matter long ago and he ought to have ceased acting.  His failure to do so provides at least part of the explanation for the extraordinary history of the proceedings.  His extensive submissions filed in opposition to costs are yet another misdirected effort to re-litigate the merits of Mr and Mrs Konishi’s claim.  While I have some sympathy for the points Mr Lee makes, they are not relevant to whether the present judicial review proceedings could be justified.

[13]     I  am  satisfied  that  in  commencing  and  pursuing  this  judicial  review proceeding,  Mr  Lee  succumbed  to  a  lack  of  objectivity  and  acted  in  serious dereliction of his duty to the Court.  This was not merely an example of a hopeless case pursued on a client’s instructions against the lawyer’s advice.  The proceeding was not only hopelessly misconceived, it was clearly pursued on Mr Lee’s advice in circumstances where it was also an abuse of the process of the Court.  In my view, this  conduct  should  be  met  with  the  sanction  of  a  costs  order  against  Mr  Lee

personally.

7      Jin v Konishi [2015] NZHC 2417.

[14]     I consider that the amount sought by Mr and  Mrs Konishi is reasonable. They should not have needed to incur these costs which are directly attributable to Mr Lee’s misguided actions.

[15]     Accordingly,   I  make   an   order   requiring   Mr Lee   to   pay  the   second

respondents’ costs of this proceeding on an indemnity basis in the sum of $37,074.37

including disbursements.

M A Gilbert J