Lagolago v Judicial Conduct Commissioner

[2021] NZCA 304

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA251/2021
 [2021] NZCA 304

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

Counsel:	A C Beck for Appellant NMH Whittington and K S Rouch for Respondent
Judgment: (On the papers)	8 July 2021 at 9.30 am

JUDGMENT OF COURTNEY J
[Review of Registrar’s decision]

The application for review of the Deputy Registrar’s decision is allowed and a waiver of the filing fee granted.

____________________________________________________________________

REASONS

Introduction

1. Ms Lagolago brought judicial review proceedings against the Judicial Conduct Commissioner regarding his handling of complaints she had made about the conduct of a Judge.  She succeeded on one ground and failed on the rest.[1]  Edwards J declined to make a costs award, directing that costs should lie where they fell.[2]

   [1]Lagolago v Judicial Conduct Commissioner [2020] NZHC 3413.

   [2]Lagolago v Judicial Conduct Commissioner [2021] NZHC 832 [Costs decision].

2. Ms Lagolago has appealed Edwards J’s costs decision.  She has applied for a waiver of the filing fee that would otherwise be required and indicated that she will not advance the appeal if the fee is not waived.

3. The Registrar has the power to waive a prescribed fee in specified circumstances.[3]  Relevantly, these include that the proceeding concerns a matter of genuine public interest.  A proceeding concerns a matter of public interest if, among other things, it has been commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public.[4]  Ms Lagolago says that the appeal raises a matter of public interest, namely the position of the Commissioner regarding costs in judicial review proceedings in which the Commissioner is a defendant.

   [3]Court of Appeal Fees Regulations 2001, reg 5.

   [4]Regulation 5(4).

4. A Deputy Registrar concluded that no matter of public interest was raised because (1) the Judge had expressly found it unnecessary to determine the nature of the Commissioner’s role in order to resolve the issue of costs and (2) there was no public interest component in the substantive proceeding.  The Deputy Registrar accordingly refused the waiver application.  Ms Lagolago seeks a review of that decision.

Review of the Deputy Registrar’s decision

1. The Judge gave two reasons for refusing to make a costs award in favour of Ms Lagolago.  First, Ms Lagolago had only succeeded on one aspect of the complaint and failed on others, so a reduction of costs under either r 14.7(d) or r 14.7(g) of the High Court Rules 2016 would have been warranted.[5]  Secondly, the Commissioner had merely filed an appearance in order to assist the Court on questions of jurisdiction and as to costs and there had been no objection to the Commissioner making submissions which were of assistance to the Court.  The Judge considered that an award of costs in those circumstances might act as a disincentive to such assistance being provided in the future.[6]

   [5]Costs decision, above n 2, at [7].

   [6]At [8].

2. In a memorandum supporting the application for review of the Deputy Registrar’s decision Mr Beck, for Ms Lagolago, explains that the point of substantial public interest that Ms Lagolago seeks to raise in the appeal is the Judge’s indication that the Commissioner ought not to be exposed to costs, notwithstanding that he was the defendant in the judicial review proceeding and advanced submissions in support of his position.  Mr Beck points out that the Commissioner’s position and the effectiveness of that role is a matter of considerable public interest and the basis on which the Commissioner might be protected from costs in proceedings seeking to impugn his conduct is a matter of public interest.

3. I am satisfied that the basis on which the Commissioner may be liable for costs in judicial review proceedings brought against him is a matter of public interest.  I accept Mr Beck’s submission that, in considering this issue, the Deputy Registrar appears to have misunderstood the nature of the argument being advanced; the argument does not depend on the Judge’s view of the Commissioner’s position in the substantive proceeding but rather on the Commissioner’s exposure as a litigant to the costs regime in the High Court Rules.

4. The application for review of the Deputy Registrar’s decision is allowed and a waiver of the filing fee granted.

Solicitors:
Meredith Connell, Wellington for Respondent