Muir v Judicial Conduct Commissioner

[2013] NZHC 3507

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1646 [2013] NZHC 3507

IN THE MATTER OF       a decision of the Judicial Conduct

Commissioner dated 30 November 2011

BETWEEN  GARRY ALBERT MUIR, CLIVE RICHARD BRADBURY AND GREGORY ALAN PEEBLES Plaintiffs

ANDJUDICIAL CONDUCT COMMISSIONER Defendant

On the papers

Counsel:                  G A Muir in Person

G J Judd QC for Plaintiffs Bradbury and Peebles
D J Goddard QC and L Theron for Defendant

Judgment:                19 December 2013

JUDGMENT OF GODDARD J

This judgment was delivered by me on 19 December 2013 at 3.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Wynyard Wood, Auckland for Plaintiffs Bradbury and Peebles

Gault Mitchell Law, Wellington for Defendant

MUIR v JUDICIAL CONDUCT COMMISSIONER [2013] NZHC 3507 [19 December 2013]

Introduction

[1]      This costs decision follows my judgment in the judicial review of a decision by the Judicial Conduct Commissioner (the Commissioner) to take no further action in respect of complaints made to the Commissioner by Messrs Muir, Bradbury and Peebles.  There was no appearance by or on behalf of Mr Muir at the substantive review hearing, a matter I shall return to.

[2]      On 7 May 2013 I issued my judgment dismissing the plaintiffs’ application and awarding costs in relation to the hearing in favour of the defendant on a 3C basis, including costs for second counsel on a 3B basis.1   Costs were also awarded in favour of the Commissioner for attendances by his counsel on a 3C basis.

[3]      The plaintiffs have disputed the costs award on that basis in relation to some steps in the proceeding.

[4]      It is unfortunate that a considerable delay has occurred in resolving the costs issue.   Although Ms Theron filed submissions on behalf of the Commissioner on

17 June 2013  and  Mr Muir and  Mr Judd QC filed submissions in  response on

25 June 2013, these were not received by me until a matter of weeks ago, due to administrative oversight in the Registry.

[5]     The issue is whether costs on a 3C basis, as sought on behalf of the Commissioner in relation to all interlocutory matters, as well as for the substantive hearing, ought to be awarded; or whether a lesser banding is appropriate for some steps in the proceeding.

Banding

[6]      McGechan on Procedure provides the following commentary on banding:2

The appropriate time band for each interlocutory step in the proceeding is fixed by the judge who deals with that step, and the banding for the trial stages by the trial Judge. ...

1      Muir v Judicial Conduct Commissioner [2013] NZHC 989 at [192]-[193].

2      McGechan on Procedure (online looseleaf ed, Brookers) at [HR14.5.01].

Awarding 2B costs for all steps in a case is unobjectionable, because it reflects an average case requiring a normal amount of time for every step. But otherwise, a blanket assessment for banding is not desirable, nor even possible under the Rules: Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400 at [161].

[7]      If a party seeks other than Band B, that party must demonstrate why an average time for that particular step would be insufficient.3

[8]      In  her  submissions,  Ms Theron  advanced  broad  reasons  why Band  C  is appropriate for the proceedings as a whole, rather than particularising each step.  She highlighted:

(a)      the length and complexity of the statement of claim and amended statement of claim;

(b)the Commissioner’s concerns about the pleadings that were dealt with at the case management conference;

(c)      the wide range of attacks on the Commissioner’s decision;

(d)that the way the case was framed made it necessary to go beyond the normal scope of judicial review proceedings in order to consider the underlying circumstances that gave rise to the complaint;

(e)      the significance of the matters raised for the proper administration of the complaints regime and for the administration of justice more generally; and

(f)      the complexity introduced into the management of the proceeding by the shifting arrangement for representation of the plaintiffs.

[9]      Mr Judd, for Messrs Bradbury and Peebles, responded by submitting that the

Commissioner had failed to examine each step in the proceeding for the purpose of

3      Paper Reclaim v Aotearoa International Ltd [2007] NZCA 544, 18 PRNZ 743 at [36].

demonstrating why a normal amount of time for that particular step would be insufficient, instead asking simply for a blanket Band C classification.

[10]     He further submitted that the complexity and significance of the case was relevant to categorisation, not banding.  Banding should be determined by reference to the time which is reasonable for each particular step in the proceeding.   He directed the Court to r 14.2(e), which provides:

What is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs.

[11]     Mr Judd contended that the Commissioner had failed to discharge the onus of demonstrating why an average amount of time would not suffice in respect of each step in the proceeding.

[12]     It is therefore necessary to consider each step in the proceeding.

Commencement of defence by the defendant

[13]     Ms Theron submitted that 6 days was required for the commencement of the defence by the Commissioner.   Mr Judd has contended for two days as sufficient. The complexity and significance of a proceeding is relevant to categorisation, and not generally to banding.  In this case, however, the sheer factual complexity of the proceeding, and the way in which the case was framed, is relevant to determining whether a comparatively large amount of time for each particular step should be considered as reasonable.  These factors are not to be diminished simply by the skill and experience of counsel engaged.

[14]     With that in mind, I am satisfied that the reasons put forward by Ms Theron establish that Category B would be insufficient with respect to this step.  The statement of claim and the amended statement of claim were dense and lengthy documents that each ran to over 50 pages.  The wide range of attacks on the Commissioner’s  decision  and  the  way  in  which  the  case  was  framed  justifies Category C being awarded.

Case management conference (items 10, 11 and 13)

[15]     Mr Judd argued that Band A is appropriate for items 10, 11 and 13, as these items related  to brief telephone conferences.    Ms Theron did not  address these particular steps with any specificity.  I accept Mr Judd’s submissions in this regard, as my recollection is that these telephone conferences were brief.   3A costs are therefore awarded for items 10, 11 and 13.

Interlocutory application for extension of confidentiality orders

[16]     Mr Judd argued that no costs should be awarded for the steps relating to the interlocutory application because “the proceeding was a matter of public interest, and the  party  opposing  costs  acted  reasonably  in  the  conduct  of  the  proceeding”.4

Alternatively, he said Band B is appropriate. Ms Theron submitted that a C Banding is appropriate for the reasons outlined at [5]. Those reasons are directed primarily at items 30-33. They are less applicable to the interlocutory application. I am not satisfied that Band B is inadequate. However, in adopting this conclusion, I reject Mr Judd’s submission that this proceeding was a matter of purely public interest falling within r 14.7(e). Costs are therefore awarded in relation to the interlocutory application on a 3C basis.

Trial preparation (items 30, 32 and 33)

[17]     Mr Judd submitted Band B was appropriate for these steps, as the hearing lasted less than three days and the Commissioner submitted only a brief affidavit for the purpose of putting documents before the Court.

[18]     In  relation  to  item  30,  I  am  not  satisfied  that  the  reasons  advanced  by Ms Theron establish 2.5 days as insufficient.   The Commissioner’s affidavit was relatively brief.

[19]     In relation to items 32 and 33 however, I find that Band B allows insufficient time for the same reasons as given in paragraphs [13] and [14].

4      High Court Rules, r 14.7(e).

Mr Muir

[20]     On 2 December 2012, Mr Muir advised the Court and other parties that he would not appear at the review hearing, which took place on 3-5 December 2012. Mr Muir says that, at that point, the defendants could have moved for judgment against him.   He seeks clarification as to whether the costs awarded should apply jointly and severally to all of the plaintiffs beyond the point at which he withdrew.

[21]     In all other respects he adopts the submissions of Mr Judd.

[22]     Under r 14.14 of the High Court Rules, the liability of each of 2 or more parties ordered to pay costs is joint and several, unless the Court otherwise directs. Mr Muir is correct that, had he been the sole plaintiff, his withdrawal from the case would have allowed the Commissioner to apply for judgment against him at that point, and thus avoid the cost of the hearing.  On that basis, I find Mr Muir is not jointly and severally liable to pay costs in relation to items 34 and 35 (appearance at hearing for principal counsel and second counsel).

Result

[23]     I award costs to the Commissioner on the following terms: (a)           items 2, 32 and 33 are categorised as 3C;

(b)      items 10, 11 and 13 are categorised as 3A; and

(c)       items 22, 24, 25, 26 and 30 are categorised as 3B.

[24]     Mr Muir is not liable to pay costs in relation to items 34 and 35.

Goddard J