S v New Zealand Teachers Council

[2015] NZHC 664

NOTE:SUPPRESSION ORDER AS PER [135] OF JUDGMENT CITED AT FOOTNOTE 1 BELOW

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2051 [2015] NZHC 664

UNDER

the Judicature Amendment Act 1972

IN THE MATTER OF

New Zealand Teachers Council's conduct in respect to application made for the renewal of a teacher's practising certificate

BETWEEN

S Applicant

AND

THE NEW ZEALAND TEACHERS COUNCIL

Respondent

On the papers
Judgment:	2 April 2015

JUDGMENT OF MALLON J (Costs)

[1]      I refer to my judgment granting S declarations that the New Zealand Teachers Council (the Teachers Council) erred in various respects in relation to his application to renew his practising certificate.1   The parties are agreed that S is entitled to costs from the Teachers Council.  They differ as to the basis on which those costs should be calculated.

[2]      The Teachers Council submits that costs should be calculated in accordance with category 2B in the High Court Rules.  It submits that this was an average case

requiring a normal amount of time.   It says that the case does not have particular

1      S v New Zealand Teachers Council [2014] NZHC 2881.

S v THE NEW ZEALAND TEACHERS COUNCIL [2015] NZHC 664 [2 April 2015]

significance or importance for anyone other than S, as the case was very much confined to its own facts.  It says that those facts are most unlikely to reoccur and that, in any case, the Teachers Council is always required to consider each case on its facts.  It calculates 2B costs as totalling $36,914.50.

[3]      S submits that this was a particularly complex and difficult judicial review claim that involved a considerable volume of documentation and legislation that was less than clearly drafted.  Added to that, it is said that counsel had to steer S a path that was considerably different from that which had preceded this proceeding over a number of years.   S is now teaching overseas following the events which are discussed in the judgment.  As such it is said that the principal beneficiaries of the judgment are other New Zealand teachers.  S submits that the decision has particular significance for them, because they rely on the Teachers Council to act appropriately and legally in relation to the issue and renewal of practising certificates.

[4]      For these reasons S considers that category 3 of the High Court Rules is appropriate.  However, rather than contending for Band B or Band C, S’s calculation appears to have applied the category 3 daily rate to the actual time taken for steps as invoiced to S.   This calculation totals $81,571.18.   This sum falls between costs

calculated on a category 3B basis and on a category 3C basis.2

[5]      I agree with S that some complexity arose from the extensive history that led to the judicial review claim and because the statutory provisions are difficult to follow.3    I also agree with S that the decision has importance beyond S’s particular circumstances.  S’s renewal application was erroneously put on hold pursuant to a Teachers  Council  policy  rather  than  a  fact-specific  assessment.    The  Teachers Council also incorrectly approached whether an extension could be granted pending the completion of a Complaints Assessment Committee investigation.  These errors in  the  exercise  of  the  Teachers  Council’s   statutory  powers  had   significant

consequences for S.   He lost his employment and was deported.   While the exact

2      Approximately $55,000 and approximately $137,000 respectively based on the steps identified by the Teachers Council in its 2B calculation.

3      A major difficulty is that, due to the number of amendments made to the Education Act 1989, the numbering is complicated.   For example, the relevant sections referred to in my judgment include ss 139AJ, 139 AM, 139AZD, 139 AUA, and 139 AZB.  This makes it difficult to find relevant provisions to gain an overall understanding of how they are intended to operate.

circumstances are unlikely to be repeated, it is important for other teachers that the

Teachers Council approaches its statutory powers correctly.

[6]      On the other hand the grounds of review were straightforward and orthodox, there was only one substantive deponent for each party, and the focus of the hearing was therefore narrow.  Overall I am not persuaded that this was a proceeding that, because of its complexity or significance, required counsel to have special skill and experience in the High Court, albeit that both counsel are very experienced.

[7]      I therefore conclude that category 2 is the appropriate category for the proceeding.  However I consider that it is appropriate to apply Band C to two steps in the proceeding: item 30 (applicant’s or respondent’s preparation of briefs of evidence or affidavits) and item 33 (preparation for hearing).  I consider that, taking into account the matters discussed in [5] above, a comparatively large amount of time for those steps would be reasonable.   Additionally, the Teachers Council’s schedule does not include any allowance for the interlocutory application for name suppression.   There should be an allowance on a 2B basis for the filing of that application (item 22).  With these adjustments to the Teachers Council’s calculation, the costs calculation is $47,063.50.  I make an order in S’s favour for that amount. As agreed, the disbursements are fixed at $2,191.18.

Mallon J