Reid v New Zealand Law Society

[2024] NZHC 2721

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-836

[2024] NZHC 2721

BETWEEN

DAVINA VALERIE REID

Appellant

AND

THE NEW ZEALAND LAW SOCIETY

Respondent

Hearing:

On the papers

Counsel:

J Mason for Appellant

P Collins for Respondent

Judgment:

20 September 2024

JUDGMENT OF MUIR J

Judgment as to Costs (with Associated Stay)

This judgment was delivered by me on 20 September 2024 at 3.30 pm, Pursuant to Rule 11.5 of the High Court rules.

Registrar/Deputy Registrar Date: ……………………………

Solicitors/Counsel:

Phoenix Law Limited

Shortland Chambers, Auckland

REID v THE NEW ZEALAND LAW SOCIETY [2024] NZHC 2721 [20 September 2024]

The application

[1]The New Zealand Law Society (NZLS) seeks:

(a)Quantification of costs in respect of the scale 2B award already made by me in respect of Ms Reid’s failed appeal from a decision of the New Zealand Lawyers & Conveyancers Disciplinary Tribunal.1

(b)An award of costs in respect of Ms Reid’s application for leave to appeal that decision to the Court of Appeal (costs having been reserved on account of an unresolved application for legal aid).2

[2]        I have considered Mr Collins’  memoranda  and  that  of  Ms  Mason  dated 18 September 2024. Ms Mason advises that she is in receipt of instructions to appeal the decision of the Legal Aid Tribunal on review of the decision of Legal Aid Services declining Ms Reid’s application for legal aid in respect of both her unsuccessful appeal and unsuccessful application for leave.

[3]        In my substantive decision I awarded costs on a 2B basis reserving leave to apply for recession of the order if Ms Reid was granted legal aid. In my decision declining leave to appeal I reserved costs “pending advice as to the outcome of     Ms Reid’s application for legal aid”. That application was declined. Two reviews have been unsuccessful, but she retains an ability under s 59 of the Legal Services Act 2011 to appeal to the High Court on a question of law.

Discussion

[4]        There can, in my view, be no reasonable argument about the quantum of costs sought on the appeal and application for leave. In both cases calculations proceed on an orthodox 2B basis.

1      Reid v New Zealand Law Society [2023] NZHC 2370.

2      Reid v New Zealand Law Society [2024] NZHC 411, a subsequent application for leave to appeal to the Court of Appeal was also declined.

[5]        Although it is appropriate therefore to quantify and award the costs on my substantive judgment ($10,320.48 including disbursements) and on my leave judgment ($5,019), I do so on the basis that one, other, or both of the awards (as the case may be) are set aside if Ms Reid’s intended appeal is successful.

[6]        I intend also to stay enforcement proceedings (including bankruptcy proceedings) in respect of the awards for a period of seven months from today’s date (or such earlier date as the appeal decision is delivered) to facilitate disposition of the intended appeal. In the event the appeal has been prosecuted diligently but a decision is not to hand at the expiration of the seven month period, Ms Reid may apply for an extension of the stay. She may do so by memorandum. She will need to provide affidavit evidence in relation to the steps taken.

Result

[7]        On Ms Reid’s appeal, I award costs and disbursements in favour of NZLS in the sum of $10,320.48.

[8]        On the application for leave to appeal to the Court of Appeal I award costs in favour of NZLS in the sum of $5,019.

[9]        I stay enforcement of both awards until 20 April 2025 or such earlier date as the High Court delivers its decision on appeal from the decision of the Legal Aid Tribunal dated 18 September 2024.3

[10]      I direct provision of the High Court’s decision on Ms Reid’s intended appeal to the solicitors for NZLS on receipt.

[11]      In the event Ms Reid’s appeal is successful with the further result that she receives an award of legal aid for the appeal and/or application for leave, the costs awards now made (or either of them) are to be considered rescinded from the date of such award of legal aid.

3      Nothing that if the appeal is successful and a remission takes place, a further extension of the stay is likely pending the ultimate outcome of the application for legal aid.

[12]Ms Reid is at liberty to apply for extension of the stay in the event:

(a)she has prosecuted her appeal diligently, but no appeal decision has been published by the date of expiration of the stay; or

(b)her appeal is successful but her application has been remitted for further consideration and no decision on it has yet been made.

[13]      If Ms Reid fails to file her intended appeal within 14 days of today’s date or otherwise to prosecute it with reasonable diligence, I reserve leave to NZLS to apply for the stay to be lifted.

Muir J