R v A Professional Conduct Committee

[2019] NZHC 43

PERMANENT SUPPRESSION ORDER OF NAME AND IDENTIFYING PARTICULARS OF APPELLANT. PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF APPELLANT IS PROHIBITED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-1060

[2019] NZHC 43

BETWEEN

Dr R Appellant

AND

A PROFESSIONAL CONDUCT COMMITTEE

Defendant

Hearing:	1 November 2018
Appearances:	W L Aldred and A E Goodall for Appellant A A Lewis for Respondent
Judgment:	30 January 2019

JUDGMENT OF CULL J

[on costs]

[1]                 Following the Court orders made by consent on 26 November 2018,1 where the parties agreed that the appellant’s appeal be upheld and the Health Practitioners Disciplinary Tribunal’s decision on liability be set aside, the parties were extended time to file memoranda on costs.

[2]                 In the absence of agreement between counsel for the parties, the appellant seeks scaled costs on a 2B basis calculated at $13,553.98.

1      R v Professional Conduct Committee, HC Wellington CIV-2017-485-1060, 26 November 2018.

R v A PROFESSIONAL CONDUCT COMMITTEE [2019] NZHC 43 [30 January 2019]

[3]                 The respondent agrees that costs should be calculated on a 2B basis, and that the disbursements claimed are reasonable, but disputes the appellant’s entitlement to receive payment of all the costs.

[4]                 The reason for the respondent’s position is that the respondent conceded the appeal, following my indication during a hearing on 1 November 2018 that the admissibility of the taped telephone call, which formed the basis of the charges laid against the appellant, appeared to be unlawfully obtained. Because that issue had not been raised by the appellant during the Tribunal hearing or in the notice of appeal, the respondent submits the appellant should not be awarded full costs.

[5]                 The respondent accepts that the appellant is entitled to 50 per cent of the costs, as a pragmatic solution, to reflect the fact that the costs claimed were not expended on the issue that ultimately led to the success of the appeal.

[6]                 In response, the appellant acknowledges that the respondent had conceded the appeal as a result of my comments at the commencement of the hearing on 1 November, but submits that the Tribunal’s decision was always indefensible and the appeal was a meritorious one.

[7]                 Counsel for the appellant, Ms Aldred, submits that the appellant had consistently contended her conduct did not amount to professional misconduct and the respondent had been selective in recounting the Court’s comments at the commencement of the hearing. Ms Aldred points to my expression of serious doubts about the respondent’s case amounting to professional misconduct.

[8]                 I had raised with counsel the appropriateness of such a serious professional misconduct finding, where the appellant’s conduct may at best have been incautious and perhaps even careless. I considered the finding of serious misconduct seemed to overreach the facts in this case.

[9]                 While I accept the respondent’s careful submission that the outcome of the appeal was not as a result of the appellant’s challenge to the admissibility of the evidence, the finding of serious misconduct, in these circumstances, was not an

appropriate one. The appellant had been the subject of a serious misrepresentation by a lawyer, who claimed to be Counsel for the Child. Although incautious, the appellant understood that she was talking to a Court-appointed Counsel for the Child, as would have been normal in her day-to-day work, and responded candidly about the suitability of another psychologist to undertake assessments in the Family Court. It transpired that the lawyer was not Counsel for the Child. He was taping the conversation between himself and Dr R, to advance his own case for the care of his children.

[10]              In the circumstances, I consider that the usual course of a costs award to the successful party should follow, with an award of costs as sought by the appellant’s counsel in her first costs memorandum. The appellant is awarded costs of $13,553.98. These are scale costs on a 2B basis together with disbursements, which are accepted by the respondent as being reasonable.

Result

[11]              The appellant is entitled to 2B scale costs, together with disbursements, as sought.

Cull J

Solicitors:

Wotton & Kearney, Wellington for the Appellant