Lagolago v Judicial Conduct Commissioner - [2023] NZCA 423

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA251/2021
[2023] NZCA 423

BETWEEN	PAPALI’I TOTI LAGOLAGO Appellant
AND	JUDICIAL CONDUCT COMMISSIONER Respondent

Hearing:	28 April 2022 (further submissions received on 6 and 23 June, and 8 July)
Court:	Cooper P, Courtney and Collins JJ
Counsel:	A C Beck for Appellant N M H Whittington and K S Rouch for Respondent
Judgment:	5 September 2023 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe costs judgment is set aside.
CThe Commissioner is to pay Ms Lagolago’s costs in the High Court calculated on a 2B basis, but reduced by one half. Ms Lagolago is also to be paid the disbursements she incurred.
D The Commissioner must also pay Ms Lagolago’s costs in this Court for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

Introduction

This is an appeal from a judgment of the High Court declining an application for costs against the respondent in the context of an application for judicial review (the costs judgment).[1]
[1]Lagolago v Judicial Conduct Commissioner [2021] NZHC 832 [Costs judgment].
The appellant, Papali’i Toti Lagolago, is a solicitor. She made two complaints to the Judicial Conduct Commissioner against Churchman J under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the JCC Act). The complaints arose in the context of a judgment in which Churchman J dealt with an application for leave to appeal to this Court from a costs judgment delivered by Clifford J in the High Court.
Both complaints were dismissed, and it is not necessary to explain the detail of them. It is sufficient for present purposes to record that the Commissioner considered there was no jurisdiction for him to consider the first complaint, because he saw it as a challenge to the correctness of a judicial decision, which he was prevented from considering by ss 8(2) and 16(1)(a) and (f) of the JCC Act. In the Commissioner’s view the subject matter of the second complaint had been previously considered in dealing with the first complaint, and was therefore outside his jurisdiction under s 16(1)(i).[2]
[2]Section 16(1)(i) of the JCC Act provides that the Commissioner must dismiss complaints if the subject matter of the complaint has previously been considered, and the complaint fails to raise any issue of significance that that has not been previously considered.
Ms Lagolago then applied for judicial review under the Judicial Review Procedure Act 2016. She alleged that the Commissioner was wrong to determine there was no jurisdiction to consider the complaints. She was partially successful.[3] Edwards J held that the Commissioner was right to dismiss the first complaint on jurisdictional grounds under ss 8 and 16(1)(a) and (f) of the JCC Act, save in respect of one aspect of the complaint. The exception related to an alleged failure by Churchman J to disclose a previous involvement he had in relation to an application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZCA 423
Decision Date: 5 September 2023 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Ms. Papali’i Toti Lagolago against the Judicial Conduct Commissioner, challenging the refusal of the High Court to award her costs following a successful application for judicial review. Ms. Lagolago, a solicitor, had made complaints to the Commissioner against a judge under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. Dismissed by the Commissioner on jurisdictional grounds, she sought judicial review, partially succeeding in having one complaint remitted for further investigation. The High Court declined to award costs to Ms. Lagolago, finding that while she was the successful party, her success was partial, and that an award of costs might disincentivize the Commissioner’s future cooperation. The appeal to the Court of Appeal contested the denial of costs, arguing that the Judge misapplied the principle that costs follow the event and ignored the public interest in ensuring that public officials act within their jurisdiction. The Court of Appeal found in favour of Ms. Lagolago, allowing the appeal and setting aside the costs judgment. It held that while the Commissioner was entitled to a reduction in costs due to Ms. Lagolago’s partial success and the lack of merit in some of her arguments, the denial of any costs was unjustified. The Court ordered the Commissioner to pay Ms. Lagolago’s costs in both the High Court and the Court of Appeal, reflecting the public interest in ensuring the proper scope of the Commissioner’s jurisdiction.

Orders