NOTE: ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANT, LAW FIRM AND AFFECTED PERSON.	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2019-404-2484
[2020] NZHC 678	

UNDER THE	The Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990 and Rule 8.20 and Part 30 of the High Court Rules 2016	
IN THE MATTER	Of an application for pre-commencement discovery	
BETWEEN	P
Applicant	
AND	NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY
Respondent	

Hearing:	27 February 2020	
Appearances:	R S Reed QC & J L Libbey for Applicant C P Paterson for Respondent	
Judgment:	2 April 2020	
Reissued:	16 April 2020	

JUDGMENT OF PAUL DAVISON J

This judgment was recalled and reissued me on 16 April 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Solicitors:
Cook Morris Quinn, Auckland Crown Solicitor, Auckland

P v NATIONAL STANDARDS COMMITTEE OF THE NZLS [2020] NZHC 678 [2 April 2020]

Introduction

[1]	The applicant, a legal practitioner, applies for an award of indemnity costs to be made against the respondent, the National Standards Committee of the New Zealand Law Society (the Committee), in connection with his application for pre- commencement discovery (the discovery application) of documentation the Committee holds regarding a determination made by the Committee at a meeting it held on 21 February 2019. The Committee initially opposed the discovery application, but shortly prior to the hearing withdrew its opposition and provided the applicant with the requested documents. The applicant now seeks an award of indemnity costs saying that the respondent: pursued hopeless opposition to the application; had not acted in accordance with its duty of candour; and had opposed the application for pre- commencement discovery when it knew that the applicant was entitled to the documentation as it recorded a determination that had been made by the Committee regarding the outcome of its own motion investigation into the applicant’s conduct.

[2]	The Committee opposes the applicant being awarded indemnity costs, and says that scale 2B costs is the appropriate basis for the calculation of the applicant’s costs.

Background

[3]	In May 2018, the law firm of which the applicant was formerly a partner, forwarded a written report to the New Zealand Law Society (NZLS) regarding his conduct on the evening of the firm’s social function in December 2016. NZLS referred the matter to the Committee which decided to commence an own motion investigation into the matter pursuant to s 130(c) of the Lawyers and Conveyancers Act 2006 (the Act). On 14 January 2019 the Committee notified the applicant of its decision to conduct an own motion investigation into the matter and advised that it had scheduled a hearing to take place on 21 February 2019 to be conducted on the papers. In its covering letter the Committee informed the applicant:

You will be advised of the outcome by written Notice of Determination, which may take some weeks to be prepared and approved by the Standards Committee.

[4]	On 15 February 2019 the applicant filed written submissions with the Committee. In an email on 20 February 2019, Mr Matthew Fogarty, who is the Committee Secretary and legal standards solicitor at the Lawyers Complaints Service of NZLS, acknowledged receipt of the applicant’s submissions and advised:

The Standards Committee will hold its hearing on the papers tomorrow.

On behalf of the Standards Committee, I will advise you in due course in writing of the outcome of the hearing. It may take a few weeks for the written determination to be issued.

[5]	On 21 February 2019 the Committee proceeded with a hearing on the papers. The hearing was attended by Mr Fogarty. During the hearing Mr Fogarty made handwritten notes in which he recorded the Committee’s views regarding the applicant’s conduct and whether it amounted to misconduct as defined by the Act. Mr Fogarty’s note concluded as follows:

Prima facie misconduct but exercise [statutory] discretion not to prosecute.

S12(b) + S12(c)

 ORDERS

1).	 Censure

2).	$10K fine (1 victim, 2 no naming)

3).	Costs: $1,500

4).	[Anonymised] publication.

[6]	Typewritten minutes of the meeting were subsequently prepared. The minutes record the attendance of the members of the Committee and of Mr Fogarty as Committee Secretary. The typewritten minutes also record that two members of the Committee recused themselves at the commencement of the hearing regarding the applicant, and thereafter did not participate further. The typewritten minutes state:

NSC 1 determined:

•	Unsatisfactory conduct pursuant to sections 12(b), 12(c) and 152(2)(b) of the Act.

•	$10,000 fine.

•	$1,500 costs.

•	Censure.

•	Anonymised publication (section 142(2) of the Act).

[7]	In addition to the details of what the Committee had “determined”, the typewritten minutes also record the identities of the members of the Committee who proposed and seconded the determination, and that the proposed determination had the agreement of all other Committee members. This is recorded in the minutes in the following format:1
(XX/YY/all)

[8]	Having not received notification of the outcome of the hearing held on 21 February 2019, on 19 March 2019 the applicant’s counsel Ms Reed QC wrote to Mr Fogarty asking to be advised when the Committee’s decision was expected to be released. Mr Fogarty replied the same day. He said:

Realistically, my best guess estimate at this stage is that it might be another month or so before the Standards Committee is in a position to delivers (sic) its determination.

The delay is regretted, and I am conscious your client no doubt wants to know the outcome as soon as possible (which is understandable), but the Standards Committee has a significant case load and so this is of course not the only determination that needs to be drafted.

Please let me know if your client considers there is any pressing need for the determination to be delivered earlier than indicated above.

If I am in a position to do so, I will provide a revised estimate later on.

[9]	Ms Reed wrote back to Mr Fogarty on 19 March 2019 requesting that she be advised of the outcome of the determination and to receive reasons for the determination within a reasonable period. Counsel wrote:

…

I do trust that there will not be significant delays given the matter has already been heard and determined. I would be grateful if you [could] keep me up to date on any delays and in the circumstances they will be minimised.

1	The “XX/YY” is used in this judgment to anonymise the names of the Committee members.

[10]	On 18 April 2019 Mr Fogarty wrote to Ms Reed. He said that regrettably it had not been possible for the Committee to deliver its written determination prior the Easter holiday break. He advised that his best estimate was that the determination would be delivered during the week commencing 6 May 2019.

[11]	On 23 April 2019, Ms Reed wrote again to Mr Fogarty. She said:

I note in your email there is no reason recorded for the continuing delays in the release of the Committee’s decision which it reached in February. My client is entitled to be advised of the decision as soon as possible after it is made.

[12]	On 24 April 2019 Mr Wayne Anderson, who is a Senior Legal Administrator at NZLS, wrote to Ms Reed on behalf of Mr Fogarty. Mr Anderson said:

Thank you for your email. [Mr Fogarty] is on leave this week and asked me to respond on his behalf.

This matter remains with the Standards Committee because the Committee needs to discuss and approve the detailed reasoning of any written decision and/or determination before it can be issued. Therefore, it takes some time after the hearing (depending on how many other decisions/determinations the Committee is dealing with) to get the written decision/determination finalised. Once the Committee confirms its determination in this case we will forward this to you on behalf of [the applicant] as soon as possible.

[Mr Fogarty] is hoping to have the Committee’s determination with you during the week commencing 6 May 2019.

[13]	On 1 May 2019 Mr Fogarty wrote to the applicant’s former firm. He said:

The Standards Committee determination is in the process of being drafted. I expect it will issue within the next week or two. I also expect a copy to be provided to [the law firm] in accordance with sections 153(4)(b), 193 and 195(2)(b) of the Lawyers and Conveyancers Act 2006.

[14]	Mr Fogarty went on to request a copy of an email sent by the applicant containing an apology for the conduct which had resulted in the own motion investigation. Later that same evening, Mr Fogarty sent an email to Ms Reed in which he said:

I don’t have much to add to my colleague [Mr Anderson’s] email below, but note that the submissions on behalf of [the applicant] raised various considered jurisdictional matters (as well as other matters) which require, in turn, a considered response by the Standards Committee. The Standards

Committee’s written determination will record not only its findings, but also the reasons for its findings. This is not dissimilar to a reserved court judgment.

I appreciate your client’s position and will deliver the determination on behalf of the Standards Committee as soon as I am in a position to do so. As noted in [Mr Anderson’s] email below, my current expectation is that I will be in a position to issue the Standards Committee’s determination during the week commencing 6 May. Ultimately, however, I am in the hands of the Standards Committee. The members will be advised of your client’s position regarding timeframes.

[15]	On 9 May 2019 Mr Fogarty forwarded a further email to Ms Reed. He said:

Dear [Ms Reed]

I refer to our email correspondence below.

The Standards Committee will be considering this matter further at its meeting tomorrow, 10 May. Effectively, this is a continuation of its hearing on the papers which commenced at its previous meeting.

In relation to your client’s intended email of apology to [redacted], we have received the attached comments from [name of law firm]. At this stage, the Standards Committee has not sought a further response from your client, and I’m not sure much turns on the issue in any event, but your client is welcome to comment further if he wishes to do so.

Please contact me if you wish to discuss further, otherwise I will be in touch on behalf of the Standards Committee as soon as I am in a position to do so. We thank you and your client for your patience.

[16]	Ms Reed responded immediately to Mr Fogarty’s email. In her email sent on 9 May she said:

Dear [Mr Fogarty],

I am astounded and concerned that your previous emails to me that the decision had been considered and made and would be delivered and issued (1 May email) appear to be incorrect as you will still (sic) investigating matters with [the applicant’s former firm] that you did not disclose to me or allow my client to comment on. Even more concerning is that your 1 May email was sent to me after you had already made further inquiries of [the applicant’s former firm] and without advising me of such inquiries. Your email was sent to [the applicant’s former firm] just over an hour before you advised me the decision was to be issued shortly.

[17]	In her email Ms Reed complained that she would not be able to obtain instructions from the applicant overnight and be in a position to present his response to the new information to the Committee at its meeting the following day. She said:

I consider this raises an issue of natural justice together with other issues such as whether or not the Committee’s determination was made and if so whether it can be recalled and reconsidered at another meeting... I submit that the Committee cannot deal with the matter tomorrow in the absence of my client’s response relying on the fundamental principles of natural justice. Please confirm by return that the Committee will not consider the matter tomorrow.

[18]	Mr Fogarty responded by email forwarded to Ms Reed later on the evening of 9 May. He said:

Dear [Ms Reed]

Thank you for your email.

A standards committee’s determination is not formally made until such time as written confirmation of the same (typically in the form of a written Notice of Determination which is signed for and on behalf of the standards committee, typically by the convenor) is delivered to the parties to any given complaint or own motion investigation matter. No such written determination has been issued.

As such, if your client wishes to respond to the email from [the applicant’s former firm] (which we advised in our email below that he was welcome to do), then he will have a reasonable opportunity to do so before the Standards Committee delivers its written determination.

There is no expectation or requirement for your client to respond overnight. Likewise, there is no reason why the Standards Committee cannot consider this matter further at its meeting of tomorrow. As you know, subject to sections 142(1) and 142(3) of the LCA, a standards committee may regulate its procedure in such manner as it thinks fit. We also refer your client to section 153(8) of the LCA.

If you consider the Standards Committee is proceeding otherwise than in accordance with the rules of natural justice, please specify in what manner your client considers this to be the case. As one would expect, neither the Standards Committee nor the Lawyers Complaints Service has any intention to act in a manner that is contrary to the rules of natural justice .

[19]	On 20 May 2019 Ms Reed forwarded a written statement made by the applicant to Mr Fogarty as the secretary to the Committee. Mr Fogarty acknowledged receipt of the statement in an email dated 21 May 2019. He said:

I confirm receipt of [the applicant’s] statement – thank you.

The Standards Committee will continue its hearing on the papers on Monday
27 May, at which time it will consider [the applicant’s] statement. The Standards Committee will then proceed to finalise its determination, which will then be delivered in writing to you in the usual way.

[20]	On 27 May 2019 Mr Fogarty wrote to the applicant enclosing the Committee’s Notice of Determination (the Notice). The Notice is also dated 27 May 2019 and is signed by the Convenor of the Committee. The Notice contains:

(a)	A detailed background of the circumstances which led to the applicant’s former firm referring the matter to NZLS and to the Committee initiating its own motion investigation into the matter.

(b)	An outline summary of the Committee’s process in conducting the investigation and decision making.

(c)	A section setting out the Committee’s legal jurisdiction in which it addresses the submissions made on behalf of the applicant regarding the issue of whether the applicant’s conduct had occurred at a time when he was providing regulated services.

(d)	The Committee’s determination, being to refer the matter to the Disciplinary Tribunal for consideration pursuant to s 152(2)(a) of the Act.

(e)	Notice that the determination is to remain confidential between the parties.

(f)	Notice to the applicant that within 30 days he could apply to the Legal Complaints Review Officer (LCRO) for a review of the Committee’s determination.

[21]	In the section of the Notice in which the process followed by the Committee was summarised it said:

15.	The Standards Committee deliberated over the course of three meetings, held on 21 February 2019, 10 May 2019, and (by telephone conference) on 27 May 2019. At the meeting on 21 February 2019 a provisional decision was made, subject to considering and approving written reasons for that decision. At the meeting on 10 May 2019 the Standards Committee considered draft reasons for its provisional decision on 21 February 2019 and asked for

alternative draft reasons to be prepared for further consideration. At its meeting on 27 May 2019, the Standards Committee resolved not to finalise the preliminary decision made on 21 February 2019 and it approved the decision set out in this Notice of Determination.

16.	The Standards Committee gave consideration as to whether what it had decided at its 21 February 2019 meeting constituted a determination within the meaning of section 152(1) of the Act or whether it was free to continue the hearing and reach a different decision, with acceptable reasoning. In doing so, it considered an email from counsel for [the applicant] dated 9 May 2019. The Standards Committee concluded that it had not made a final determination on 21 February 2019, that the hearing had not concluded, and that it was free to continue its deliberation and reach a different decision for the following reasons:

(a)	the decision that was reached at its meeting on 21 February 2019 was intended to be provisional and subject to approval of acceptable reasons;

(b)	no written determination had been finalised by the Standards Committee and delivered to the parties;

(c)	the Standards Committee is not functus officio because it had not completed its statutory function which includes the communication of a reasoned decision; and

(d)	the communication to [the applicant] of this written Notice of Determination will represent the Standard Committee’s determination.

[22]	Upon receiving the Notice of Determination the applicant and his counsel noted that in the course of reaching its decision the Committee had given consideration to whether it was able to reach a different final determination than the decision it had made at the hearing held on 21 February 2019. The applicant also noted that in a footnote to the Notice, the Committee had referred to the composition of the Standards Committee at its respective meetings, inferring that the composition of the Committee had changed over the course of the meetings.

[23]	The applicant noted that he had not been given an opportunity to make submissions to the Committee on the issue of whether the Committee could make a different decision when sitting as a differently constituted committee, or whether a differently constituted committee could consider whether a previous committee had made a decision or not.

[24]	Moreover, prior to receiving the Notice, the applicant had understood that the Committee had already made a determination at the 21 February 2019 meeting. The applicant considered that in the course of its correspondence, the Committee had clearly indicated that a determination had been made at the hearing on 21 February 2019, but it had not yet been written up as a notice of determination with the reasons for the determination set out. The applicant considered that having made a determination on 21 February 2019, the Committee had no jurisdiction to thereafter purport to make a further and different determination.

[25]	The applicant was also concerned that the Committee had failed to comply with the requirements of natural justice in its process and consideration of the matter, and considered making an application for judicial review of the Committee’s determination. However before commencing judicial review proceedings the applicant decided to first seek further information regarding what the Committee had decided at the hearing held on 21 February 2019.

[26]	The applicant’s solicitors accordingly requested the Committee to provide disclosure of all relevant documents it held in relation to the own motion investigation. The Committee co-operated and provided the applicant’s counsel with a schedule entitled: “Register of documents disclosed and withheld in respect of [Own Motion Investigation]” listing a total of 148 documents. Item 67 of the schedule lists three documents relevant to the hearing on 21 February 2019. The three documents referred to are: the Committee’s agenda, Mr Fogarty’s handwritten notes, and the typewritten minutes from the respondent’s 21 February 2019 meeting. The schedule states the reason why two of the documents were withheld from disclosure:

Disclosed agenda item. Minutes withheld where they relate to unrelated matters and in respect of this matter on the basis of deliberative privilege.

[27]	On 11 November 2019 the applicant made an application for an order for pre- commencement discovery against the Committee, specifically seeking an order directing the Committee to disclose the two documents it had withheld in relation to its hearing on 21 February 2019. In the same application, the applicant also sought

an order for the suppression of his name and identifying particulars.2 The application was supported by an affidavit sworn by the applicant. The grounds of the application for pre-commencement discovery stated that the documents sought to be discovered related solely to the issue of whether a determination was made by the Committee on 21 February 2019. The application stated:

Clearly the minutes of the 21 February 2019 meeting directly recorded any decisions made on that day and were subsequently verified by the members of the Committee when the formal minutes of the meeting were later circulated.

[28]	Together with the pre-commencement discovery application, the applicant filed a draft statement of claim for judicial review in which he alleged that the Committee’s decision or decisions made on 27 May 2019 and set out in the Notice of Determination are invalid, as the Committee had already made a determination of the own motion investigation on 21 February 2019, and the Committee’s purported reclassification of its determination of 21 February 2019 as a “provisional decision”, and determination of 27 May 2019 were made without jurisdiction. The draft statement of claim further states that the applicant is unable to plead further causes of action with sufficient particularity until pre-commencement discovery has been obtained, however the applicant anticipates pre-commencement discovery may disclose causes of action alleging: abuse of process and or procedural impropriety; taking improper or irrelevant considerations into account; error of law and fact; acting unreasonably; and lack of jurisdiction.

[29]	On 6 December 2019, the Committee filed a notice of opposition to the pre- commencement discovery application. The grounds upon which the Committee opposed the making of an order for pre-commencement discovery were:

(a)	The documents in respect of which pre-commencement discovery is sought (being portions of the Minutes of a meeting of the Committee on 21 February 2019) are subject to deliberative privilege held by the respondent.

2	The application for suppression of the applicant’s name was heard on 28 November 2019 and on 3 December 2019, Palmer J made orders for suppression of the name of the person affected by the applicant’s conduct, the identity of the applicant’s former firm, details of the incident and the applicant’s name, nature of practice and other identifying information. P v The National Standards Committee of the New Zealand Law Society [2019] NZHC 3159.

(b)	The Committee has not waived the privilege.

(c)	There are no special circumstances whereby the deliberative privilege is outweighed by any competing interest.

(d)	It is not impossible or impracticable for the applicant to formulate his claim without refence to the documents sought.

(e)	The order sought is not necessary.

[30]	The Committee supported its notice of opposition with an affidavit sworn by Mr Fogarty. In his affidavit Mr Fogarty described the Committee’s decision-making process, and set out the progress of the applicant’s matter through the Committee’s investigative and deliberative process. Mr Fogarty said:

I rely on and adopt as my evidence the correspondence I sent on this matter, annexed to this affidavit and the affidavit of [the applicant]. I do not understand the Committee’s decision making process in this case to have departed from the general practice I have outlined at paragraphs 4-20 of this affidavit. My emails to parties at the time were intended to reflect that. That is consistent with my understanding (both then and now) that a Committee has not made a determination until the written notice of determination (stating the Committee’s determination and the reasons for it) has been signed and issued to the parties in accordance with section 158 of the Lawyers and Conveyancers Act 2006. I believe my emails reflect that, although I accept it will be a matter the Court will be asked to decide.

[31]	On 28 November 2019, Palmer J made a timetable order which required the applicant’s submissions to be filed by 30 January 2020, and the Committee’s submissions to be filed by 13 February 2020. The application for pre-commencement discovery was allocated a half-day hearing on 27 February 2020.

[32]	On 30 January 2020, the applicant made an application seeking an order granting him leave to cross-examine Mr Fogarty on his affidavit at the hearing. The Committee did not file a notice of opposition to that application, but indicated that the application would be opposed. The Registrar set the application for leave to cross- examine down for hearing on 12 February 2020, however following the parties filing of a joint memorandum on 11 February 2020, Downs J made an order by consent that

the application for leave to cross-examine Mr Fogarty was to be determined on 27 February by the Judge hearing the pre-commencement discovery application.

[33]	On 13 February 2020, the Committee waived the deliberative privilege it had claimed until then, and voluntarily provided the applicant with the documents which had been sought in the pre-commencement discovery application. On 17 February the parties filed another joint memorandum to advise the Court that they agreed that there was no longer any need for the application for pre-commencement discovery or the application for leave to cross-examine Mr Fogarty to be determined by the Court. In their joint memorandum the parties said that they would endeavour to agree any issue as to costs, but nevertheless requested that the 27 February 2020 hearing date be retained in case an oral hearing was required to determine costs.

[34]	On 17 February 2020 Lang J issued a Minute directing that any memorandum seeking costs, together with supporting submissions, was to be filed by 20 February 2020. On 20 February 2020 the applicant filed an application seeking an award of indemnity costs. The application is opposed by the Committee.

Submissions

Submissions for the applicant

[35]	Ms Reed QC, for the applicant, submits that indemnity costs should be awarded to the applicant for two reasons. Firstly because the Committee has pursued hopeless opposition to the applicant’s applications. Secondly because by withholding two of the 21 February documents (being Mr Fogarty’s handwritten notes and the typewritten minutes), the Committee had acted in breach of its duty of candour owed to the Court. The applicant says that the Committee’s opposition to the pre-commencement discovery application was hopeless and always destined to fail because:

(a)	The documents sought by the applicant on their face recorded that a determination of unsatisfactory conduct had been made together with further orders relating to a fine, costs, a censure and anonymisation, being the kind of determinations that the applicant anticipated would be recorded in them; and

(b)	The deliberative privilege claimed by the Committee would not have been sustained upon inspection of the two documents by the Court, inspection of which the Committee had agreed.

(c)	The Committee had not acted in accordance with its duty of candour when it opposed the application for pre- commencement discovery and improperly claimed deliberative privilege when it knew that the minutes of its meeting of 21 February 2019 did not support that assertion, and in fact contradicted it.

(d)	The Committee failed to provide the documents to the applicant and the Court notwithstanding that they comprised the very documents at the heart of the proposed judicial review proceedings, and notwithstanding that the documents were fundamental to the Court’s consideration and determination of the intended application for judicial review.

(e)	The Committee filed an affidavit sworn by Mr Fogarty in opposition to the pre-commencement discovery application, the contents of which implied that a determination had not been made at its meeting on 21 February 2019, when Mr Fogarty had attended the meeting and had subsequently prepared minutes of the meeting which recorded that a determination had been made together with orders consequent upon that determination. The suggestion made in the affidavit being inconsistent with the contents of the contemporaneous documents.

(f)	The Committee opposed the applications for pre- commencement discovery and for leave to cross-examine Mr Fogarty when it knew that that the applicant was entitled to apply to review its purported determination of 27 May 2019, and had tried to justify reaching its different determination made on 27 May 2019 by recording in its 27 May determination that

the 21 February 2019 determination was only a provisional decision and was not a final determination, when the respondent knew that the 21 February decision was recorded and being a “determination”.

[36]	Ms Reed says that the applicant is entitled to costs following the Committee belatedly and voluntarily providing the documents sought by the applicant. Ms Reed notes that the applicant has not yet filed any judicial review proceedings, and says that it is quite possible that none will be filed. She accordingly submits that rather than the determination of costs being deferred for consideration following determination of the proposed judicial review proceedings, the issue of costs should be decided now.

[37]	Ms Reed submits that the ground on which the Committee withheld the two documents, namely a claim of deliberative privilege, could never have been upheld as the documents are records of decisions and determinations, and do not contain any deliberative content. She submits that Mr Fogarty’s handwritten notes and the meeting minutes record that at its meeting on 21 February 2019, the Committee made a determination that the applicant’s behaviour amounted to unsatisfactory conduct as defined in the Act,3 and that the Committee had exercised its discretion by deciding not to prosecute the applicant before the Disciplinary Tribunal. Ms Reed says that the determination recorded in the documents was not described or qualified as being “preliminary”, “provisional”, or conditional.

[38]	Ms Reed submits that the determination made by the Committee on 21 February also included decisions regarding the amount of the fine to be imposed, the amount of costs to be paid by the applicant, that the applicant be censured, and that publication of the decision be anonymised.

[39]	Ms Reed submits that as regards the legal significance and effect of the 21 February decision, it is relevant to note that pursuant to s 26(3) of the Act, a decision supported by a majority of the votes cast at a meeting of a Standards Committee “is the decision of the Committee”, and that a Standards Committee is required by the provisions of s 26(5) to cause full and accurate minutes to be kept of the proceedings

3	Section 12.

of each meeting “which minutes must record all decisions reached and orders made by the Committee at the meeting.” She submits that these requirements of s 26 support the applicant’s contention that the decision made by the Committee on 21 February 2019 and detailed in the typewritten minutes of the meeting under the heading, “NSC 1 determined:”, is consistent with that decision being regarded by the Committee as at that date, as its effective and final decision in relation to its own motion investigation of the applicant.

[40]	Ms Reed notes that the Practice Note Concerning the Functions and Operations of Lawyers Standards Committees provides that a Standards Committee must make a determination on the complaint or matter before it at the hearing of the Standards Committee.4 The Practice Note further provides:5
Any determination or decision should be made at the hearing itself wherever possible. In more complex cases, particularly where the parties and their witnesses have been heard in person, the determination or decision may be reserved but should be delivered as soon as possible after the hearing.

[41]	Ms Reed also notes that s 152(1)(b) provides that, having inquired into a complaint, a Standards Committee may make a determination that the matter be considered by the Disciplinary Tribunal or make a determination that there has been unsatisfactory conduct on the part of a practitioner. The Standards Committee also has the power to: make an order censuring the person to whom the complaint relates;6 impose a fine not exceeding $15,000;7 and make an order for the payment of costs.8

[42]	Ms Reed says that it is apparent from the 21 February minutes and Mr Fogarty’s handwritten notes that the Committee exercised those powers at its meeting on that date to make a finding of unsatisfactory conduct, and deciding to order the payment of a fine and costs, and to censure the applicant. In making those decisions says Ms Reed, the respondent had exercised its statutory powers to do so and thereafter

4	New Zealand Law Society Practice Note Concerning the Functions and Operations of Lawyers Standards Committees, cl 8.8(a). The power to make a practice note is conferred by reg 28 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008.
5	At cl 8.9.
6	Lawyers and Conveyancers Act 2006, s 156(1)(b).
7	Lawyers and Conveyancers Act 2006, s 156(1)(i).
8	Lawyers and Conveyancers Act 2006, s 157(1).

it only remained for it to prepare and set out its reasons and notify the applicant of the determinations it had made.

[43]	Counsel further submits that the contents of the two documents are inconsistent with, and directly contradict, the Committee’s claim of deliberative privilege on which it based its notice of opposition to the application for pre-commencement discovery. She submits that the documents call into question the accuracy of the statement made by Mr Fogarty in his affidavit asserting that a determination was not made by the respondent at its meeting on 21 February 2019.

[44]	Ms Reed submits that when providing an affidavit explaining the reasons for, or process involved in, making a determination under the Act, the Committee has a duty to be candid and provide all relevant evidence and documents. She submits that the duty of candour which exists in relation to legal proceedings is equally applicable in the context of an application for pre-commencement discovery where the applicant has indicated his intention to commence proceedings and has filed a draft statement of claim identifying the issues in dispute.

[45]	Counsel for the applicant submits that in the Committee’s correspondence with her prior to 27 May 2019, it had indicated that a decision had been made on 21 February, and what remained to be done was the drafting of and approval of the detailed reasoning for the determination. She submits that prior to issuing the Notice of Determination on 27 May, the Committee gave no indication that it was reconsidering the decisions it had made on 21 February, or that the 21 February determination was preliminary or provisional and that a different determination may be made.

[46]	Referring to Mr Fogarty’s explanation of the Committee’s deliberative process as set out in his affidavit, Ms Reed submits that it is significant that Mr Fogarty did not mention that the constitution of the Committee changed and differed between the meetings on 21 February and 27 May. She submits that the passage of the affidavit describing the Committee’s deliberative process over the period following the meeting on 21 February and the issue of the Notice on 27 May had been carefully drafted, and having regard to the absence of any clear reference to the change in the composition

of the Committee, it could be considered to be misleading. Ms Reed further submits that a solicitor who knows or becomes aware that a misleading impression has been created by an affidavit is under a duty to correct that impression and put the matter right by requesting that the affidavit be removed from the Court file.9 Ms Reed submits that the Committee’s failure to take such steps illustrates the manner in which the Committee has conducted its opposition to the applications based on ill-founded grounds of opposition, and less than complete and candid information.

[47]	Ms Reed says that by withholding the two documents and by its opposition to the pre-commencement discovery application on the grounds that the documents were protected by deliberative privilege, it is clear that the Committee failed to discharge its duty of candour. She submits that the Committee attempted to resist the disclosure of documents which showed that when it purported to make the decision to refer the matter to the Tribunal on 27 May 2019, a valid determination had already been made on 21 February. Counsel says that had the Committee succeeded with its original position of withholding the two documents, the Court would have been placed in the position of determining the application for judicial review without being able to consider the relevance and effect of those documents on the legality of the different and subsequent determination made by the respondent on 27 May 2019.

[48]	Ms Reed submits that by declining the applicant’s request for the 21 February documents; by its ill-founded opposition to the applications for pre-commencement discovery; and by opposing the application for leave to cross-examine Mr Fogarty, the Committee failed to display the behaviour to be expected of a disciplinary committee of the NZLS having regard to its position as a representative of the legal profession and its statutory responsibility to comply with the principles of natural justice. Ms Reed says that by reason of the Committee’s ill-founded opposition to the applicant being provided with the 21 February documents, the applicant has unnecessarily incurred significant legal costs.

9	EBR Holdings Ltd (In Liq) v Van Duyn [2019] NZHC 3325 at [106].

[49]	In summary Ms Reed submits that the applicant should be awarded indemnity costs because the respondent advanced and persisted in advancing a hopeless case of opposition to the applicant’s request for the 21 February documents.

Submissions for the respondent

[50]	Ms Paterson, for the Committee, opposes the making of an order for indemnity costs, and says that the pre-requisite grounds for the making of an order awarding indemnity costs have not been established. She says that, having chosen to waive privilege in the face of an application already underway, the Committee accepts that it is liable to pay costs determined on a 2B basis. She says however that indemnity costs could not be imposed at this interlocutory stage without consideration of the merits of the applicant’s claim for judicial review and that any application for indemnity costs should be made and determined following the outcome of the judicial review proceedings that the applicant has signalled.

[51]	Ms Paterson submits that the Committee’s opposition to the pre- commencement discovery application was not based on hopeless grounds. She says that as a quasi-judicial decision maker, the respondent, is in appropriate cases, entitled to rely on a public interest privilege over its deliberative materials. Ms Paterson says that a tribunal cannot be required to disclose or give evidence of its deliberative process and thinking. She submits that the only determination made by the Committee was the decision it set out in the Notice of Determination dated 27 May 2019, and that deliberative privilege applies to the Committee’s considerations of the matter prior to it reaching the decision set out in the Notice.

[52]	Ms Paterson submits that until the Committee had approved a notice of determination, including its reasons with which all members of the Committee agreed, the respondent committee was not functus officio and it was entitled and able to revisit and reconsider any previous decisions it had made regarding the matter it had under investigation.

[53]	Ms Paterson says that a costs application is not the appropriate time for the court to engage in a detailed assessment of the respective parties’ contentions regarding the nature of a national standards committee’s decision-making under the

Act. She says that for the present, the only issue the Court needs to determine is whether the Committee acted “very unreasonably” or in a flagrant manner. She says that the Committee’s response to the applicant’s allegations is that its claim of deliberative privilege was informed by and based on its understanding of decision- making under the Act which is reasonably arguable, and by seeking to have the deliberative privilege it claimed upheld, it was not mounting hopeless opposition to the pre-commencement discovery application. Furthermore says Ms Paterson, the Committee’s opposition to the application was not only based on a claim of deliberative privilege, but also on wider grounds including that it was not impossible or impracticable for the applicant to formulate his claim for judicial review without the information he sought. She submits that the applicant’s draft statement of claim demonstrates that.

[54]	Ms Paterson says that the Committee accepts that as a body exercising public power and being the proposed Committee of an application for judicial review, it has a duty of candour. She submits however that as a quasi-judicial decision-maker it can exercise and claim deliberative privilege over its deliberative materials and communications, including draft notices of determination. Ms Paterson says that the Committee provided the applicant with a schedule listing all of the documents in its possession and identifying those that it would withhold, and thereafter engaged with the applicant in correspondence in relation to challenges raised by the applicant to certain claims of privilege, and as a result provided some further information.

[55]	Ms Paterson submits that the Committee’s manner of dealing with the applicant’s request for relevant documents and information regarding the decision contained in the Notice of Determination was consistent with the parties adopting opposing, but nevertheless good faith, positions. It was not a case of the Committee adopting an approach to withhold documents from the applicant that he was clearly legally entitled to.

[56]	The Committee rejects the applicant’s criticisms of its conduct in the course of its opposition to the applications, and rejects the applicant’s criticism of Mr Fogarty’s evidence in his affidavit which is alleged to be capable of being misleading. Ms Paterson says that Mr Fogarty’s affidavit was not inaccurate or misleading. She notes

that Mr Fogarty specifically stated in his affidavit that he did not discuss the detail of the deliberative process having regard to the Committee exercising deliberative privilege. Furthermore says Ms Paterson, the suggestion that the contents of Mr Fogarty’s affidavit could be misleading should be considered in light of the Committee having agreed to providing the documents sought by the applicant to the Judge hearing the application for determination of whether the claim of deliberative privilege would be upheld. In these circumstances there could be no possibility of the applicant being misled by the position taken by the respondent.

[57]	Ms Paterson says that the dispute between the parties turns on the stark differences in their respective interpretations of the Committee’s decision-making power and how that affects its ability to assert deliberative privilege. She submits that the dispute over that issue did not affect the Committee’s conduct of the interlocutory proceedings, and it did not conduct itself as regards the applications unreasonably, let alone at the level of “very unreasonably” such as would justify the imposition of indemnity costs.

Discussion

[58]	Pursuant to r 14.6 of the High Court Rules 2016, the Court has the power to make an order for increased costs10 and indemnity costs.11 Rule 14.6(4) sets out the circumstances in which the Court may order a party to pay indemnity costs:

(4)	The court may order a party to pay indemnity costs if—

(a)	the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or

(b)	the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party; or

(c)	costs are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the fund, and the party claiming costs has acted reasonably in the proceeding; or

10	Rule 14.6(3).
11	Rule 14.6(4).

(d)	the person in whose favour the order of costs is made was not a party to the proceeding and has acted reasonably in relation to it; or

(e)	the party claiming costs is entitled to indemnity costs under a contract or deed; or

(f)	some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.

[59]	Here the applicant relies on r 14.6(4)(f)12 and says that the Committee’s opposition of the application for pre-commencement discovery, while without merit and always destined to fail, was nevertheless pursued until shortly before the matter was to be heard, thereby causing the applicant to incur quite unnecessary legal costs and expenses.

[60]	The Court of Appeal in Bradbury v Westpac Banking Corp said as regards the costs provisions in the High Court Rules that:13

[27]	The distinction among our three broad approaches: standard scale costs; increased costs; and indemnity costs may be summarised broadly:

(a)	standard scale applies by default where cause is not shown to depart from it;

(b)	increased costs may be ordered where there is failure by the paying party to act reasonably; and

(c)	indemnity costs may be ordered where that party has behaved either badly or very unreasonably.

[28]	…Indemnity costs, which depart from the predictability of the Rules Committee’s regime, are exceptional and require exceptionally bad behaviour. That is why to justify an order for such costs the misconduct must be “flagrant”: Prebble v Awatere Huata (No 2) [2005] 2 NZLR 467 at [6] (SC).

[61]	In N-Tech Ltd v Abooth Ltd, Kós J observed, as regards increased and indemnity costs:14

It follows from these authorities that increased or indemnity costs may be awarded on the basis of lack of merit, in a case where the trial is not completed, only where the lack of merit is both obvious and incontrovertible. So clearly so that there is no reasonable possibility that the Court might form a different

12	The application however erroneously refers to r 14.6 (3)(d) which relates to increased costs.
13	Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] NZLR 400 at [27]
14	N-Tech Ltd v Abooth Ltd [2012] NZHC 1167 at [108].

view with the benefit of all the evidence and closing submissions. No difficult or detailed speculation is involved. The claim is and was so flawed that nothing in the evidence and submissions to follow could save it – and the plaintiff has acted unreasonably in bringing or continuing the claim. It is, thus stated, a double hurdle. The first assesses the claim; the second, the claimant’s conduct.

[62]	Applying the requisite criteria and principles set out in Bradbury and N-Tech, for the applicant to succeed and obtain an order for indemnity costs he must overcome the hurdles of first showing that the Committee’s opposition to his pre-commencement discovery application was wholly without merit, and secondly that the Committee’s conduct in the course of defending the application was flagrant and “very unreasonable”.

[63]	The issue here is not the merit of the applicant’s possible future challenge to the legality of the Committee’s Notice of Determination, but the merits or justifications for the Committee opposing the pre-commencement discovery application and application for leave to cross-examine Mr Fogarty.

[64]	I agree with Ms Paterson’s submission that the determination of this application for an order for indemnity costs is not the appropriate occasion on which to assess the merits of a possible future challenge by the applicant to the legality of the Notice of Determination of 27 May 2019 by which it has referred the matter to the Disciplinary Tribunal for consideration. Although Ms Reed made some submissions regarding the matter, I did not hear anything approaching full argument from the parties. That is a matter properly left for determination in the context of a judicial review, should that eventuate.

[65]	Accordingly, I do not propose to make any findings as regards the merits of the applicant’s possible future challenge of the legality of the respondent’s decision to refer the matter to the Disciplinary Tribunal as set out in the Notice of Determination. I do note however that a Standards Committee has the power to regulate its procedure in such manner as it thinks fit,15 and to reserve delivering and issuing a Notice of

15	Lawyers and Conveyancers Act 2006, s 142(3).

Determination following a hearing.16 I also note that a Notice of Determination must state the determination and the reasons for it.17

[66]	Turning now to the merits of the Committee’s opposition to the application for pre-commencement discovery application and for leave to cross-examine Mr Fogarty. The opposition hinges upon an assertion of deliberative privilege.

[67]	In Comalco New Zealand Ltd v Broadcasting Standards Authority,18 this Court observed that:19

There is ongoing public interest in preserving public confidence in Courts and tribunals… The policy simply recognises the wider realities of decision- making needs. Some decisions are made best, and some indeed on delicate subject-matter can be made, in a considerable degree of privacy. There is a real danger of damaging misconceptions otherwise. Nakhla v McCarthy represents a situation where, as can happen, the opposite was true: there was a greater risk of misconception through non-disclosure. It was the exception, not the rule. The policy evaluation is one to be made in the circumstances of each case as it arises.

[68]	The provisions of the Act canvassed above provide a reasonable foundation for the Committee’s adoption of the position that its hearing records and minutes relating to its consideration of the applicant’s matter during the period prior to it reaching and issuing its notice of determination on 27 May 2019 were protected by deliberative privilege. Furthermore, I consider that it is reasonably arguable that the steps taken by the Committee in conducting a hearing on the papers on 21 February 2019, and notwithstanding the decisions made at that hearing thereafter deciding upon a different outcome when it met on 27 May 2019 to resume the hearing, were within its powers.

[69]	As well as the provisions of the Act and Practice Note which I have referred to, the respondent adopting the position that its 21 February records were subject to deliberative privilege was entirely consistent with the purpose of deliberative privilege being the maintenance and preservation of public confidence in the courts, tribunals and   other   statutory   decision   makers   such   as   Standards   Committees, by  the

16	New Zealand Law Society Practice Note Concerning the Functions and Operations of Lawyers Standards Committees, cl 8.9.
17	Lawyers and Conveyancers Act 2006, s 158(2)(a).
18	Comalco New Zealand Ltd v Broadcasting Standards Authority [1995] 3 NZLR 469 (HC).
19	At 473.

maintenance of a privilege covering all or any deliberative materials or records which precede the judgment or decision delivered or issued by the judicial officer, tribunal, or statutory decision maker. A Standards Committee’s decisions during the course of an investigation on issues remain at large and are open to alteration and modification at any time up until the notice of determination required by s 158 of the Act is issued. Where decisions are made at a hearing of the Standards Committee, until they are set out in a notice of determination and the notice is issued in accordance with the Act, it is open to the Committee to change or modify it. Of course all decisions to alter or modify earlier decisions made by the Committee must be made in accordance with the Act.

[70]	In my view, the Committee’s decision to categorise the 21 February documents as being protected by deliberative privilege was not unreasonable or without justification. Having decided that deliberative privilege applied to those documents, the Committee’s position of opposing the applicant’s pre-commencement discovery application was entirely justified. The fact that it subsequently decided to waive privilege and voluntarily provide the documents to the applicant, does not detract from the legitimacy of its earlier position. I am certainly not persuaded by the applicant that the Committee’s grounds of opposition to the pre-commencement discovery application could not possibly have succeeded.

[71]	I also reject Ms Reed’s submission that the Committee’s decisions on 21 February (set out in the meeting minutes and Mr Fogarty’s handwritten note) comprised the Committee’s determination and as such were not protected by deliberative privilege. It is clear from the email correspondence exchanged between Ms Reed and Mr Fogarty following the 21 February hearing that Ms Reed may have read Mr Fogarty’s emails as indicating that a determination had been made by the Committee at the hearing on that date. In his email to Ms Reed sent on 19 March 2019 at 6.09 pm, Mr Fogarty however explained that he estimated that it might be another month or so “before the Standards Committee is in a position to deliver its determination.” Essentially the same explanation was given by Mr Fogarty in his email to Ms Reed on 18 April 2019 in which he said that it had not been possible for the Committee to deliver its written determination prior to Easter. Mr Anderson’s email to Ms Reed on 24 April 2019 saying that the matter remained with the Standards

Committee because it “needs to discuss and approve the detailed reasoning of any written decision and/or determination before it can be issued”, may well have been read as indicating that while the decision itself had been made, it was the reasons for the decision that needed to be agreed and finalised before the determination could be issued.

[72]	However, in his email to Ms Reed of 1 May 2019, Mr Fogarty said that the Committee’s written determination would record “not only its findings, but also the reasons for its findings. This is not dissimilar to a reserved court judgment.” Although Mr Fogarty knew what the Committee had decided on 21 February, it appears from his emails that until the Committee had finalised its determination including its reasons for its determination, both he and the Committee considered that there was no determination to be issued. That approach is reflected in Mr Fogarty’s emails to Ms Reed of 9 May 2019 in which he said that the hearing scheduled the following day, was effectively a continuation of the earlier hearing, and explained that a standard committee’s determination is not formally made until such time as a written notice of determination, signed for on behalf of the standards committee is issued and delivered to the parties. In his affidavit Mr Fogarty also says that it was always his understanding that a Committee has not made a determination until the written notice of determination in which it has set out its reasons, has been signed and issued to the parties in accordance with the requirements of s 158 of the Act. Such an approach is consistent with the existence and application of deliberative privilege to the decision making functions of the Committee at all stages prior to it issuing its written determination. Such an approach is also consistent with Elias CJ’s observation in Lewis v Wilson & Horton that:20
The third main basis for giving reasons [in a judgment] is that they provide a discipline for the Judge which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice.

[73]	This observation confirms that formulation of reasons for a decision forms part of a decision-making process. A decision-making committee should not be bound by any initial view it took of a matter if, in the course of formulating its reasons, it decides it should reach a different conclusion. While the 21 February documents record what

20	Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [82].

the Committee had decided on that date, until it had finalised the determination in a notice of determination and issued it pursuant to s 158 of the Act, it was always open to the Committee to amend or change whatever it had earlier decided. Accordingly, I reject Ms Reed’s submission that the decisions made by the Committee on 21 February and set out in the meeting minutes and in Mr Fogarty’s handwritten note comprised the Committee’s determination, and as such were not protected by deliberative privilege.

[74]	For these reasons I do not consider that the Committee acted unreasonably by adopting the position of initially opposing the pre-commencement discovery application on the grounds that the 21 February documents were covered by deliberative privilege. The fact that the Committee subsequently waived privilege shortly before the scheduled hearing of the application does not alter the status of the 21 February documents as being within the scope of deliberative privilege.

[75]	I also reject the applicant’s submission that the Committee initially attempted to resist making disclosure of the 21 February documents in order to prevent the applicant and the Court from having recourse to the documents in the context of judicial review proceedings. Having found that Mr Fogarty and the Committee were justified in treating the documents as being covered by deliberative privilege, the withholding of the documents was entirely appropriate. The Committee properly disclosed the existence of the documents in the schedule it prepared and provided to the applicant, and it agreed to provide the documents to the court hearing the application for pre-commencement discovery to enable the Judge to determine whether the claim of privilege was properly made. The intended process by which the Judge would see the documents and determine whether the claim of deliberative privilege was properly made, would ensure that the applicant and the Court were not misled. If the Court concluded that the claim of deliberative privilege had been made without proper foundation, the documents would at that stage have been provided to the applicant. I accordingly find that on the material before the Court the applicant has not made out his allegations that the Committee’s conduct of withholding the 21 February documents was contrary to its duty of candour or that it had the potential to be misleading.

[76]	I reject the applicant’s submission that because Mr Fogarty stated in his affidavit that the Committee had not made a determination of the applicant’s matter at the 21 February hearing, that his affidavit “could be said to be misleading”. I also reject the submission that by omitting to make any reference to a change to the composition of the Committee having taken place, Mr Fogarty’s affidavit was potentially misleading. While the issue of composition of the Committee was not addressed in Mr Fogarty’s affidavit, that may well be because the issue his affidavit was principally directed at was whether deliberative privilege applied to the documents. In any event, I note that the issue of the composition of the Committee was indirectly referred to in footnote 4 of the Notice of Determination,21 which shows the Committee was adopting a transparent approach as regards its decision-making process.

[77]	The Committee’s opposition to the application for leave to  cross-examine  Mr Fogarty at the hearing of the pre-commencement discovery application was not improper or unreasonable. Cross-examination of deponents in judicial review proceedings requires leave, and the applicant to show the relevance of the issues to be addressed in the proposed cross-examination, and that cross-examination is necessary in order to meet the requirements of justice.

[78]	In Geary v The Psychologists Board,22 the Court of Appeal said:

[22]	Judicial review is part of the High Court's supervisory jurisdiction and fact-finding is not a central activity. If cross-examination was permitted as of right, there would be a risk of unwarranted dalliance into factual assessments by the courts. The avoidance of that kind of exercise is the core of the presumption against cross-examination in judicial review proceedings, and recognised in the relevant authorities. The rule of practice is a commonsense response to the nature of the litigation.

[23]	Cross-examination is properly constrained by a leave requirement. The criteria for leave - necessity and the requirements of justice - are not unduly onerous. If a party can point with sufficient particularity to a basis upon which cross-examination is necessitated by the shape of the case, then leave will be granted. We find no justification for a wholesale reconsideration of the policy approach which has evolved.

21 “Regarding the composition of the Standards Committee at its respective meetings on 21 February 2019, 10 May 2019, and 27 May 2019, see…Erwood v Maxted [2015] NZSC 181 at [10] and Waikato District Health Board v New Zealand Nurses Organisation [2017] NZCA 247 at [53] to [56].”
22 Geary v the Psychologists Board [2009] NZCA 134, [2009] NZAR 338.

[79]	The application for leave to cross-examine Mr Fogarty set out particulars of five issues on which the applicant wished to cross-examine him. Each of the identified issues was directed at establishing that the Committee had made a final determination of its own motion investigation as to the outcome, penalty, and other orders at its meeting on 21 February 2019. In relation to each issue, the applicant sought to cross- examine Mr Fogarty regarding the process followed by the Committee and to show that it had proceeded as if it had made a final determination at the meeting on 21 February 2019. The applicant’s proposition being that once the Committee had made its determination on 21 February 2019, thereafter, as a matter of law, it could not be altered or amended. However, the Committee’s position as I understand it, was that the issue in dispute concerned the nature of the Committee’s decision-making power, and how that affected its ability to assert deliberative privilege. The Committee’s position being that it was a question of law which would not be informed by any evidence adduced by cross-examination of Mr Fogarty regarding the Committee’s deliberations prior to it issuing its Notice of Determination dated 27 May 2019. In my view, as the Committee’s position was that as a matter of law its determination of the matter was that set out in its written Notice of Determination and the matters recorded in Mr Fogarty’s handwritten notes and in the Committee’s minutes of 21 February 2019 were merely preliminary or provisional, it was not unreasonable for it to oppose the application to cross-examine Mr Fogarty.

Result

[80]	The applicant’s application for an order that the respondent pay indemnity costs is disallowed and is dismissed.

[81]	The applicant is however entitled to costs on his pre-commencement discovery application, and I make an order that the respondent pay scale 2B costs together with disbursements to be fixed by the Registrar.

[82]	The respondent having succeeded in its opposition to the application for indemnity costs, is entitled to costs on this application. The respondent’s costs are to be calculated pursuant to scale 2B. If the parties are unable to agree as to costs, they

are to file costs memoranda not exceeding three pages in length apart from any annexures, within 10 working days from the date of delivery of this judgment.

Paul Davison J