Z v A Professional Conduct Committee

[2025] NZHC 991

NOTE: ORDER SUPPRESSING NAME AND PARTICULARS OF IDENTITY OF APPELLANT CONTINUES PENDING FURTHER ORDER OF COURT. NAMES AND IDENTIFYING PARTICULARS OF COMPLAINANTS

SUPPRESSED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000048

[2025] NZHC 991

IN THE MATTER OF

an appeal pursuant to s 106(2) of the Health Practitioners competence Assurance Act 2003

BETWEEN

Z

Appellant

AND

A Professional Conduct Committee Respondent

Hearing:	On the papers
Appearances:	A Waalkens KC and S Courtney for the Appellant J Coates and C Robinson for the Respondent
Judgment:	29 April 2025

JUDGMENT OF WALKER J

[Costs]

This judgment was delivered by me on 29 April 2025 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

A Waalkens KC, Barrister, Wotton + Kearney (Auckland) J Coates, Dentons Kensington Swan

[Z] v A Professional Conduct Committee [2025] NZHC 991 [29 April 2025]

[1]                 Following judgment of this Court allowing Z’s appeal against the New Zealand Health Practitioners Disciplinary Tribunal, Z seeks costs of $31,055.59 on a 2B basis. The costs claim is supported by a schedule setting out steps taken in the appeal proceeding which appears to be in order.

[2]                 The Professional Conduct Committee (PCC) opposes any costs award. In the alternative it argues that any award ought to be reduced given the circumstances of the case.

[3]                 Having regard to the principles settled by the Court of Appeal in Roberts v Professional Conduct Committee of the Nursing Council of New Zealand,1 I am satisfied that the appellant is entitled to a costs order in the amount claimed. I set out my reasons.

The Contest

[4]                 Mr Waalkens KC, anticipating the respondent’s challenge to the costs’ application, submitted:

(a)The general costs regime under the High Court Rules applies on an appeal from a decision of the Tribunal and the default position that an unsuccessful party should pay costs prevails since none of the grounds in r 14.7 apply.

(b)The fact that this Court only interfered with the second threshold step findings of the Tribunal does not mean that costs should not follow the event.

(c)Disciplinary Tribunals cannot resist costs based on performing a public function.

1      Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2014] NZCA 141.

(d)It is only where there is a genuine public interest arising (not merely the undertaking of a public function) that costs may be reduced or negatived.

[5]                Mr Coates for the respondent submits that this is a case in which the Court should exercise its discretion and make no order of costs against the PCC or alternatively, should reduce any costs award. He advanced the proposition that “something else” in addition to success “may sometimes” be required – relying on the language the Court employed in Roberts and that this is just the sort of case in which something else ought to be required.

[6]                 Mr Coates submits that the Tribunal’s factual findings and the first step in the test for professional misconduct were upheld on appeal, the prosecution was important, and Z was not totally exonerated. He noted that professional disciplinary costs not met by a particular practitioner fall on the medical profession generally, and that the fact that the costs order made by the Tribunal against Z fell away because of the appeal is a relevant factor.

Outcome

[7]                 The starting point is that, on any realistic assessment, Z was the successful party on appeal. This is so notwithstanding that the path to success was only in respect of the second threshold test for professional misconduct. As a corollary, the fundamental principle is that costs follow the event.

[8]                 The Court of Appeal in Roberts said that ultimately it is a question of degree of emphasis and that the usual presumption that costs follow the event may be more easily displaced due to the public function of PCCs.2 However, the mere performance of its statutory function cannot, without more, be enough to disturb the fundamental principle that costs follow the event.3

2      At [28] and [29].

3      McCaig v A Professional Conduct Committee [2016] NZHC 306.

[9]                 I accept that this case was an important one. It was unique in that the complainants were not patients but junior colleagues. Neither (experienced) counsel was able to point to a similar prosecution in that context. As it transpired, the case exposed some systemic weaknesses in a hierarchical teaching environment. However, those factors are not sufficient in my view to displace the fundamental principle in relation to costs. I further reject the other factors relied on by Mr Coates in the circumstances of this case.

[10]Accordingly, I make an order in favour of the appellant for 2B costs of

$31,055.59.

............................................................

Walker J