P v National Standards Committee of the New Zealand Law Society

[2021] NZHC 1412

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-882

[2021] NZHC 1412

UNDER

the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990 and Part 30 of the High Court Rules

IN THE MATTER

of an application for judicial review

BETWEEN

P

Applicant

AND

THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY

Respondent

Hearing:

On the papers

Appearances:

R S Reed QC and J L Libbey for Applicant

C P Paterson and P J O’Boyle for Respondent

Judgment:

15 June 2021

COSTS JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 15 June 2021 at 2.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Cook Morris Quinn, Auckland

Meredith Connell, Auckland

Counsel:            R S Reed QC, Auckland

P v NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2021] NZHC 1412 [15 June 2021]

[1]                 This judgment determines P’s application for an award of costs and disbursements  against  the  respondent   (“NSC”),   following   my   judgment   of  17 February 2021.1

[2]                 By an application for discovery, P sought to set aside NSC’s claim to deliberative privilege in respect of certain documents pertaining to its consideration of a complaint made against him. Deliberative privilege protects from disclosure documents which evidence the deliberations of a judicial or quasi-judicial body, subject only to the privilege being outweighed by disclosure being required in the interests of justice.

[3]                 NSC abided the decision of the Court on the application. Through counsel, the New Zealand Law Society (“NZLS”) appeared as contradictor following its appointment as such by Palmer J on 7 September 2020, and on terms which preclude any award of costs against it.2

[4]                 P contends that he succeeded on his application and should have an award of costs. NSC submits that there should be no award of costs for the following reasons:

(a)NSC was acting judicially or in the capacity of a quasi-judicial decision-maker and, as a general rule, costs are not ordered against a party acting in such a capacity;

(b)it provided all documents in issue to the Court;

(c)it abided the decision of the Court in respect of the challenge to deliberative privilege, as it is doing in respect of P’s substantive application for judicial review;

(d)the Court upheld NSC’s claims to deliberative privilege in respect of all but one of the relevant documents, and found against the respondent

1      P v National Standards Committee of the New Zealand Law Society [2021] NZHC 196.

2      P v National Standards Committee of the New Zealand Law Society HC Auckland CIV-2020-404- 882, 7 September 2020 (Minute No 2) at [7].

only on the basis the privilege was overridden by public interest considerations.

Discussion

[5]                 As NSC submits, with one exception the documents in dispute were subject to deliberative privilege.

[6]                 Regardless, for reasons which follow, I am satisfied P is entitled to 2B costs and disbursements on his application.

[7]                 P’s substantive case is that a decision by NSC to prosecute him for misconduct was unlawful for several reasons, but principally because a differently constituted committee had previously determined the complaint, and on a basis more favourable to him. His case is that, in those circumstances, the subsequent decision to prosecute him for misconduct was invalid.

[8]                 P could not advance his substantive case, and the Court could not determine it, without at the very least having reliable information as to how events had transpired after the complaint against him was first made. This was not a case in which there was a fulsome affidavit or affidavits stating what had occurred, or in which such was apparent on the face of the information already available.

[9]                 At the hearing before me, NZLS submitted that P had sufficient information on the “already disclosed” material to argue his case. With respect to NZLS, P did not.  P required access to documents which evidenced whether or not the decision he alleged had in fact been made and, if so, when and by whom. Given that, this was a case where, quite clearly, the interests of justice required disclosure of the critical documents.

[10]              In the first instance, P’s counsel proposed that they be allowed to inspect the documents on a “counsel only” basis, so that they could ascertain whether there was anything to be gained by pursuing an application or whether it would be a pointless exercise. That offer was declined, several times as I understand it.

[11]              Given that, P was required to either abandon the point or to make a formal application for the documents, and incur the costs of doing so. He elected the latter and, in my view, he succeeded as he was bound to do in this particular instance.

[12]              That NSC may have acted in a quasi-judicial capacity, and that is in dispute, does not in my view render it immune from an award of costs if it declines to make available information that the interests of justice require to be disclosed.

[13]              In those circumstances, I am satisfied that NSC must pay the costs and disbursements P was required to incur.

Result

[14]              I grant P’s application for an award of costs on a 2B basis, and disbursements, in respect of his application dated 19 January 2021.

Peters J