Tulloch v Deputy Legal Complaints Review Officer

[2024] NZHC 3963

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-479

[2024] NZHC 3963

BETWEEN

JAMES SHALLCROSS TULLOCH

Applicant

AND

DEPUTY LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

AND

IRENE NANCY TULLOCH

Second Respondent

Hearing:

On the Papers

Counsel:

J S Tulloch Self Represented

N P Tetzlaff for Second Respondent

Judgment:

20 December 2024

JUDGMENT OF CHURCHMAN J [COSTS]

Introduction

[1]    On 25 November 2024, I dismissed the application by James Tulloch (the applicant) for judicial review of a decision of the Legal Complaints Review Office (LCRO) (the first respondent).1 Irene Tulloch is the second respondent. Ms Tulloch now seeks costs of $2,390 and $110 for disbursements. Mr Tulloch contests this.2

1      Tulloch v Deputy Legal Complaints Review Officer [2024] NZHC 3527 [Substantive Judgment].

2      Mr Tulloch has not provided a formal memorandum in opposition but replied to counsel for the second respondent with the reasons for his refusal to pay costs, which is annexed to the application.

TULLOCH v DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2024] NZHC 3963 [20 December 2024]

[2]    I determine this application on the papers, applying the general principle that costs are at the discretion of the Court.3

Background

[3]    Mr and Ms Tulloch are siblings. A dispute arose over arrangements for the family home, and for their elderly mother. In March 2022, Mr Tulloch complained to a Standards Committee of the New Zealand Law Society (as Ms Tulloch is a practicing lawyer). The Standards Committee found there was no breach of professional obligations. Mr Tulloch applied to the LCRO, which upheld the Standards Committee’s decision.4 Mr Tulloch then commenced a judicial review of the LCRO decision in March 2024. He did not name Ms Tulloch as the respondent in his claim.

[4]    However, at the first case management conference in April, Jagose J joined Ms Tulloch to the proceedings.5 This is because the Judicial Review Procedure Act 2016 provides that if an “application relates to any decision made in proceedings, every party  to  those  proceedings”  must  be  named  as  a  respondent.6  Because  Ms Tulloch was a party in the LCRO decision, she had to be named as a respondent in the judicial review challenging that LCRO decision.

[5]    On 10 May 2024, Ms Tulloch filed a Notice of Appearance, and notified the Court that she would abide the decision. Ms Tulloch took no further active steps in the proceeding. However she incurred the costs (and disbursements) of those two preliminary steps.

[6]    I determined the claim in late November, finding no reviewable errors of law in the LCRO decision. In that substantive judgment, I stated:7

[90] Should any question of costs arise the respondents are to file memoranda within 14 days of the date of this judgment with the applicant having 14 days to reply.

3      High Court Rules 2016, r 14.1.

4      The LCRO issued a corrected copy of the decision on 16 August 2023.

5      Tulloch v Deputy Legal Complaints Review Officer HC Auckland CIV-2024-404-479, 10 April 2024 (Minute of Jagose J) at [2].

6      Judicial Review Procedure Act 2016, s 9(1)(b).

7      Substantive Judgment, above n 1, at [90].

Parties’ positions

[6]                 On 26 November 2024, counsel for the second respondent wrote to Mr Tulloch requesting costs and disbursements of $1,544. Mr Tulloch declined to make payment; and challenges the proposed costs order. He says the request is “presumptuous” as the Court, rather than him, joined Ms Tulloch to the proceeding. Further, he says the costs were an “unnecessary extravagance” as Ms Tulloch, a qualified lawyer, could have filed the necessary documents herself.

[7]                 Counsel for Ms Tulloch submits that the joining of Ms Tulloch was the “inevitable and correct result of his application”, and Mr Tulloch “should be responsible for the resulting consequences.” Costs should follow the event in the ordinary way, and Mr Tulloch was the unsuccessful party. The costs requested by the second respondent have increased beyond the original offer to settle, due to the necessity of filing a formal costs application. The costs orders now sought are $2,390 with disbursements of $110.

Analysis

[8]                 It is appropriate to make a costs order in respect of the second respondent. It is neither extravagant nor wrong that Ms Tulloch obtained legal counsel and took the requisite steps required to protect her interests.

[9]                 While acknowledging that Mr Tulloch is self-represented and may not have been aware of s 9(1)(b) of the Judicial Review Procedure Act, I consider he would have been aware that any unsuccessful judicial review would require him to pay costs to a respondent. The first respondent, quite properly, has not sought costs. However, it is reasonable for this Court to order the reasonable costs of the second respondent be paid.8 I am satisfied that the quantum of costs sought is reasonable.

8      Applying High Court Rules, r 14.2.

Conclusion

[10]              I award costs to the second respondent, payable by the applicant of $2,390 plus disbursements of $110.

Churchman J

Solicitors:

Smith & Partners, Auckland for Second Respondent