IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-404-2608 [2013] NZHC 1867

UNDER	the Lawyers and Conveyancers Act 2006

AND UNDER	the Law Practitioners Act 1982

IN THE MATTER OF	an appeal against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal

BETWEEN	DONNA MARIA TAI TOKERAU DURIE HALL
Appellant

AND	WELLINGTON STANDARDS COMMITTEE (NO. 2) Respondent

AND	NGATI TUWHARETOA WAI 575
STEERING COMMITTEE Intervener

Hearing:	(on the papers)

Counsel:	H A Cull QC for the Appellant
G L Turkington for the Respondent
K S Feint for the Intervener

Judgment:	26 July 2013

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 26 July 2013 at 11:00 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

HALL v WELLINGTON STANDARDS COMMITTEE (NO. 2) [2013] NZHC 1867 [26 July 2013]

[1]       The appellant seeks costs following the substantive judgment.     Costs are sought for the proceeding before the Disciplinary Tribunal as well as the proceeding in the High Court.   Indemnity costs are sought in a sum of $140,106.89.   In the alternative, the appellant seeks increased costs assessed on a 3C basis in a sum of
$77,968.80 for the High Court proceeding and indemnity costs of $30,055.51 (inclusive of GST) for the Disciplinary Tribunal proceeding.

[2]       The respondent submits that there is no justification for any increase above costs assessed on a 2B basis and that, in reliance on r 14.7(e), costs should be reduced by 50% because the proceeding concerns a matter of public interest and the respondent has acted reasonably in the conduct of the proceeding.

[3]       I have taken full account of the submissions for the appellant in support of indemnity costs.   I am satisfied that the high threshold for indemnity costs under r 14.6(4) and as discussed in Bradbury v Westpac Banking Corporation is not met. The principles and their application to this proceeding are discussed in some detail in the submissions of Mr Turkington for the respondent.  In broad terms I agree with those submissions.

[4]       Some matters relied on in support of the application for increased costs, outlined in the submissions of Ms Cull QC for the appellant, in my judgment are not relevant or not sufficiently established to justify application of any of the identified factors in r 14.6(3).  I refer in particular to: the fact that there was a two day hearing before the Disciplinary Tribunal; aspects of delay (although steps must now be taken to  seek  to  ensure  that  the  matter  is  resolved  as  expeditiously as  possible);  the complexity of the background facts; the error or errors of the Tribunal; and adverse publicity for the appellant.

[5]       However, there are other matters which do require some consideration in respect of the application for increased costs.   I am satisfied that the respondent
should not have applied to strike out the appeal.  This application was dealt with in

the  earlier  judgment  of  Collins  J.3        Mr  Turkington  advanced  a  number  of submissions to the essential effect that the respondent’s strike out application was a reasonable  application  and  responsibly  brought.     However,  the  conclusion  of Collins J was that the decision of the Supreme Court in Siemer v Heron4  was “a complete answer”.5   Mr Turkington referred to submissions he had made in support of the strike out  application  to  the effect  that  the High  Court  could  exercise  a discretion to decline to hear the appeal.  Collins J did not, in as many words, address
that argument.   It is, with respect, not a tenable argument having regard to the decision of Collins J.  It may have some relevance to the respondent’s argument that the appellant, following the Tribunal’s decision, should have completed the hearing before the Tribunal rather than appealing a decision which was not determinative. But  that  is  not  relevant  to  the  question  whether  the  respondent’s  strike  out application was a reasonable step to take.

[6]       I am satisfied that the appellant is entitled to increased costs on the strike out application and steps related to the strike out application.  I will come back to the quantum.  I should also note that neither counsel submitted that costs on the strike out application should be referred to Collins J and, given the delay, and cost that has already been incurred, I am satisfied that it is appropriate for this to be determined by me in conjunction with determination of costs for other aspects of the appeal.

[7]       The appellant’s case for increased costs for the remainder of the appeal is not as strong as that relating to the strike out application.  The appellant did succeed in establishing that the Tribunal applied the wrong test.  The point has some general importance beyond the interests of the parties.   I am also satisfied that it was not unreasonable for the appellant to seek to have the ultimate merits on the disciplinary charge to be determined by this Court.  In that regard I am satisfied that substantially more time was required for various steps than would be covered by band B.

[8]       Against this, there is some force in the submission for the respondent that the better course for the appellant, in her own interests, would have been to complete the
proceeding before the Disciplinary Tribunal rather than to have brought this appeal

3	Hall v Wellington Standards Committee [2012] NZHC 1723, [2012] NZAR 790.
4	Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.
5	Hall v Wellington Standards Committee, above n 3, at [25].

part way through it.  This is the point referred to above when considering costs on the application to strike out the appeal.   The submission had no weight in that context because the right to proceed with the appeal was not subject to the discretion of the High Court.   Costs are, however, subject to the Court’s discretion.   This discretion must be exercised in accordance with the rules and general principles.  I am satisfied that the matter now being considered can be taken into account in assessing  costs  and,  in  particular,  in  assessing  the  appellant’s  application  for increased costs.

[9]       I am also satisfied that, approaching the matter in this way, does not involve unwarranted application of hindsight to the appellant’s decision to lodge an appeal before completion of the matter before the Disciplinary Tribunal.   The procedural course taken by the appellant was unusual.6   The matter could have been completed before the Tribunal because, as Mr Turkington points out, the Tribunal had set aside three days for the hearing and there was therefore a further day available.  Had the
ultimate decision gone against the appellant, an appeal could then have been brought on all matters.  Also, any realistic assessment of the prospects on the appeal that was taken should have taken account of the reasonable likelihood that, if there was success on the appeal relating to the test applied by the Tribunal, there would still be need for matters to be completed in the Tribunal.   In other words, although the appellant had a right of appeal, she was not bound to appeal and had alternative procedural avenues open which would not have prejudiced her position so that, to some extent, the further costs incurred are of her own making.

[10]    Weighing these competing considerations I am satisfied that there is no justification for increasing the appeal costs save for those relating to the strike out application.   But there is no justification for reducing the costs, as sought for the respondent.

[11]     There are two further issues relating to High Court costs.  One is whether the costs category should be 2 or 3.   I am satisfied that the appropriate category is 2.
The other issue is whether there should be an allowance for second counsel for the

6 And see Collins J, above n 3, at [14].

appellant.  This is not a case justifying an allowance for second counsel (which of course is not in any way an adverse reflection on the contribution of Ms Arcus).

[12]     I do not consider it is appropriate for the costs of the earlier hearing before the Tribunal to be fixed in the High Court.  There are two reasons.  The first is that, in general, costs at first instance are best fixed by the tribunal of first instance.  This is not altered by the fact that there is to be a newly constituted Tribunal to complete the disciplinary proceeding.  The second is that the question of costs relating to the first Tribunal hearing is far better assessed once a final decision on the disciplinary charge has been made by the newly constituted Tribunal.

Quantum

[13]     The result in relation to costs in the High Court, and in considerable measure based on steps in the proceeding agreed by counsel, is as follows:

Strike out steps: band C

Time Allowance

23: notice of opposition to application to strike out appeal	2
24: written submissions	3
26: appearance at hearing	0.5

Other High Court steps: band B	10

10: first case management conference	0.4

11: memorandum for first conference	0.4

13: appearance at first conference	0.3

11: memorandum for second conference	0.4

13: appearance at second conference	0.3

15: preparation for pre-trial conference 6 November 2012	0.5

31: preparation of list of issues, list of authorities
and common bundle	2.5

55: preparation of case on appeal	1

56: preparation of submissions	3

57: appearance	1.75

26.05

26.05 x $1,990 (category 2)	51,839.50

Plus agreed disbursements:

Notice of appeal	483.40

Setting down	1,208.40

Hearing fee	1,208.40

$54,738.70

[14]     There is an order that the respondent pay costs and disbursementss to the appellant of $54,738.70.

Application by intervener for costs

[15]     The reasons for the intervener’s appearance on the appeal, and the result in the intervener’s favour, is recorded in the earlier judgment and need not be repeated here.

[16]     At the hearing the intervener applied for costs.  There is no reference to this in the earlier judgment.  Ms Feint, for the intervener, is unsure whether I had decided not to award costs to the intervener or whether the application was overlooked.  The intervener makes its application on the assumption that the matter was overlooked whilst accepting that, if there was a decision which was not recorded then the matter cannot be taken any further.

[17]     The appellant objects to the application.  There are two grounds.  The first is that the Court has no jurisdiction unless the judgment is recalled and it should not be. The second that costs are not awarded to interveners as a matter of court practice.

[18]     I am surprised by the position adopted by the appellant on the first point.  At best for the appellant this would depend on whether the intervener’s application had simply been overlooked or whether there was an unrecorded decision not to award costs.

[19]     If there had been a decision not to award costs it would have been recorded. The fact of the matter is that it was overlooked and there is no impediment to my considering the application.

[20]     I am also satisfied that there is no practice sufficient to justify declining the intervener’s application.  The only practice referred to is that of the Supreme Court on advising interveners, when leave is granted to intervene, that the intervener will not necessarily be granted hearing time and sometimes stating that there will be no costs award to the intervener in any event.   On the other hand, as Ms Cull noted, s 99A of the Judicature Act 1908 makes provision for an award of costs to an intervener.  And I note that the scope for an award is wider than indicated by the heading to the section.

[21]     This is a case where the intervener is entitled to costs.   The appellant was seeking to overturn a decision made by the Tribunal in the intervener’s favour and on an important point of principle directly affecting the intervener’s rights.   In my judgment, the appellant’s approach on this matter was unreasonable.  The Tribunal’s decision was plainly correct.

[22]     The intervener seeks costs for its involvement before the Tribunal as well as in this Court. A sum of $5,000 was proposed during the hearing before me.  Ms Cull submitted that a sum of $2,000 would be reasonable.

[23]     For the intervener Ms Feint noted that costs in the High Court on a 2A basis would total $4,079.50, compared with $5,000 sought for the Tribunal costs as well as the High Court costs.  Ms Feint also noted that the sum of $5,000 is less than the total costs incurred.  There is a small error in the 2A calculation, as noted by Ms Cull, which would reduce the figure by $398.

[24]     I am satisfied that the application for total costs of $5,000, covering costs in the Tribunal and in the High Court, is amply justified, particularly when compared with  scale  costs  on  a  2A  basis  in  the  High  Court.    It  would  not  have  been unreasonable for the intervener to have sought costs in the High Court on a 2B basis. And my impression is that the actual time claimed for the appearance is less than the time involved because Ms Feint attended Court for the hearing on more than one occasion and accommodated the interests of other counsel.

[25]	There is an order that the appellant pay the intervener costs in a sum of

$5,000.

Woodhouse J

Counsel:
Ms H A Cull QC, Barrister, Wellington
Mr G L Turkington, Barrister, Wellington
Ms K S Feint, Barrister, Wellington
Instructing Solicitors:
Mr G McAsey, McAsey Gill, Solicitors, Lower Hutt
Lawyers Complaints Service, New Zealand Law Society, Wellington
Mr r Drummond, Gibson Sheat, Solicitors, Wellington