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]…

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: [2013] NZHC 3507
Decision Date: 19 December 2013

CaseChat Overview and Summary

The High Court of New Zealand was presented with a case where Garry Albert Muir, Clive Richard Bradbury, and Gregory Alan Peebles sought judicial review of a decision made by the Judicial Conduct Commissioner. The Commissioner had decided not to take further action on complaints lodged against certain judicial officers. The plaintiffs argued that the Commissioner's decision was flawed and sought an order for review. The Commissioner, on the other hand, defended the decision and argued that the plaintiffs' claims were without merit. The legal issues before the court involved determining the appropriate banding for the costs incurred during the judicial review process. The court had to decide whether the costs should be awarded on a 3C basis for all steps in the proceeding, or if a lesser banding was appropriate for some steps.

The court considered the submissions made by both parties regarding the appropriate banding for each step of the proceeding. The Commissioner's counsel argued that Band C was appropriate for the proceedings as a whole due to the length and complexity of the pleadings, the wide range of attacks on the Commissioner's decision, and the significance of the matters raised for the proper administration of the complaints regime and for the administration of justice. On the other hand, the plaintiffs' counsel contended that the Commissioner had failed to demonstrate why an average amount of time would not suffice in respect of each step in the proceeding. The court found that the complexity and significance of the case were relevant to categorisation, not banding, and that banding should be determined by reference to the time which is reasonable for each particular step in the proceeding.

The court concluded that Band C was appropriate for the commencement of defence by the Commissioner due to the complexity and length of the pleadings. However, for the brief telephone conferences, the court found Band A to be appropriate. In relation to the interlocutory application for extension of confidentiality orders, the court found Band B to be inadequate but rejected the submission that the proceeding was a matter of purely public interest. The court found that costs should be awarded on a 3C basis for the interlocutory application. For trial preparation, the court found that Band B was appropriate for some steps, while Band C was appropriate for others. Lastly, the court found that Mr Muir was not jointly and severally liable to pay costs in relation to items 34 and 35, as he had withdrawn from the case.

In conclusion, the court awarded costs to the Commissioner on the following terms: items 2, 32 and 33 were categorised as 3C; items 10, 11 and 13 were categorised as 3A; and items 22, 24, 25, 26 and 30 were categorised as 3B. Mr Muir was not liable to pay costs in relation to items 34 and 35.

Orders