Keene v Legal Complaints Review Officer

[2020] NZHC 2261

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000117

[2020] NZHC 2261

BETWEEN

GREGORY ALEXANDER KEENE

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

STEVEN LAU, JESSE LIU and DINAH QIU

Second Respondents

NEW ZEALAND LAW SOCIETY

Intervener

Hearing:	On the papers
Judgment:	1 September 2020

COSTS JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 1 September 2020 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Copy to: Applicant and Second Respondent.

KEENE v LEGAL COMPLAINTS REVIEW OFFICER [2020] NZHC 2261 [1 September 2020]

[1]Mr Keene successfully appealed a decision I made 27 July 2018.1 Mr Keene

now seeks costs.

[2]        There were two aspects to my decision. I found for Mr Keene in relation to one, and against him in relation to the other. I said this about costs at the end of the decision:2

Mr Keene wished to be heard on costs. I invite his memorandum of not more than five pages by 5 pm, Monday 13 August 2018. Mr Lau may reply with a memorandum of not more than five pages by 5 pm, Monday 20 August 2018. Each is to be served by the same dates.

For completeness, my preliminary view is costs should lie where they fall. The position is very much like it was below—the adverse determinations have been swapped.

[3]Mr Keene was then represented by Mr Illingworth QC. Neither responded.

[4]        The Court of Appeal heard Mr Keene’s appeal 3 October 2019. It allowed the appeal 14 November 2019. That Court held this in relation to costs:3

An order for costs is not appropriate in this case. Mr Keene represented himself. The NZLS sought an order under s 178(2)(b) of the Senior Courts Act 2016 that its costs be paid from public funds. However, we consider that this was a case in which it was appropriate for the NZLS to appear and assist the Court, in the same way that the Commerce Commission appears to assist the court in appeals from its decisions. The appearance was an integral aspect of the performance of the NZLS’ regulatory functions. We do not consider that an order for payment of the costs of the NZLS out of public funds would be appropriate.

[5]        Mr Keene sought to revisit this determination. The Court of Appeal did not allow this.4

[6]        Mr Keene contends he should now have costs because of his success in the Court of Appeal. I acknowledge this could favour belated costs in this Court. However, I exercise my discretion to decline costs. Mr Keene made a considered decision not to seek costs in this Court two years ago, despite an available timetable.

1      Keene v Legal Complaints Review Officer [2020] NZCA 559.

2      Keene v Legal Complaints Review Officer [2018] NZHC 1869 at [54]–[55].

3      Keene v Legal Complaints Review Officer, above n 1, at [95].

4      Minute of the Court, 24 April 2020.

The lay litigants on the other side of the case would have assumed—quite reasonably—the issue of costs was no longer live, especially as they did not participate in the Court of Appeal hearing.

[7]Mr Keene’s application for costs is dismissed.

……………………………..

Downs J