Sharman v New Zealand Association of Counsellors Incorporated

[2014] NZHC 1235

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1360 [2014] NZHC 1235

UNDER	the Judicature Amendment Act 1972
IN THE MATTER OF	an application for judicial review
BETWEEN	TINA MARIE SHARMAN Plaintiff
AND	NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED First Defendant
AND	HEARING PANEL OF THE ETHICS COMMITTEE OF THE NEW ZEALAND ASSOCIATION OF COUNSELLORS Second Defendant

Hearing:	On the papers
Judgment:	4 June 2014

COSTS JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 4 June 2014 at 1.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
Vallant Hooker & Partners, Auckland

Gilbert Walker, Auckland

SHARMAN v NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED [2014] NZHC 1235 [4 June 2014]

[1]      In September 2013 I gave judgment in respect of Ms Sharman’s application for  judicial  review  of  a  decision  of  the  Hearing  Panel  of  the  New  Zealand Association   of  Counsellors   (NZAC),  upholding  five  of   six   charges   against Ms Sharman and finding her guilty of professional misconduct.1     I dismissed the second ground of review (error of law based on admission of a statement) and the third ground of review (unreasonableness).  In relation to the first ground of review

(breach of natural justice) I found nearly all of the multiple challenges without merit. I found however that Ms Sharman was correct that there was a lack of particulars in connection with an allegation of dishonesty, and that the reasons given for that finding were inadequate.  I found however that those errors had no bearing upon the finding of professional misconduct because the Panel had placed no weight at all upon  the  finding  of  dishonesty  in  finding  a  charge  of  professional  misconduct proved.   I found that there was ample in the conduct admitted by Ms Sharman to justify a finding of professional misconduct.   I therefore exercised my discretion against the grant of relief.  I said that if the parties were unable to agree costs, they may file memoranda.

[2]      The parties have been unable to agree costs.  The defendant seeks costs on the grounds that costs should follow the event.  The plaintiff however seeks an order that costs lie where they fall, or at least a reduced award of costs on the grounds that Ms Sharman would have succeeded but for the Court exercise of the discretion to refuse relief.  Ms Sharman says that a finding of dishonesty is a serious allegation and that the fact that a party has partially succeeded is an important factor in terms of costs, citing r 14.1 of the High Court Rules.

[3]      The  fundamental  principle  is,  that  the  party who  fails  with  respect  to  a proceeding  should  pay  costs  to  the  party  who  succeeds.    The  first  defendant succeeded in the proceeding.  Ms Sharman advanced multiple grounds of attack on the Panel’s decision.   I found only one had merit.   That did not however avail Ms Sharman in terms of the relief that she sought.   As I found, there was ample evidence to justify the Tribunal’s finding of professional misconduct.  An allegation of  dishonesty  is  a  serious  allegation,  but  other  serious  allegations  were  proved

against Ms Sharman, sufficient for the finding of professional misconduct to be made out.

[4]      I am therefore satisfied that costs should follow the event2 and in accordance with the first defendant’s application, they should be on the scale basis on a 2B basis and disbursements, amounting to $17,023.80 as set out in the schedule attached to counsel’s memorandum of 17 March 2014.

Winkelmann J