A v NATIONAL STANDARDS COMMITTEE [2020] NZHC 715

A v NATIONAL STANDARDS COMMITTEE [2020] NZHC 715 [7 April 2020]ORDER PROHIBITING PUBLICATION OF APPELLANT'S NAME, THENAMES OF THE COMPANIES INVOLVED IN THE TRANSACTIONS, THENAMES OF THE TRUSTS INVOLVED IN THE TRANSACTIONS, THECOMPLAINANTS' NAMES AND ANY OTHER PARTICULARS WHICHMIGHT LEAD TO THE APPELLANT BEING IDENTIFIEDIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-001035[2020] NZHC 715UNDER The Lawyers and Conveyancers Act 2006IN THE MATTER OF Disciplinary proceedings under Part 7 of theActBETWEEN AAppellantAND NATIONAL STANDARDS COMMITTEERespondentHearing: On the papersCounsel: D P H Jones QC and D J G van Hout for AppellantM Hodge and M J Mortimer for RespondentJudgment: 7 April 2020JUDGMENT OF WYLIE J[COSTS]This judgment was delivered by Justice WylieOn 7 April 2020 at 3.30pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:Russell Legal/D P H Jones QC, AucklandMeredith Connell, Auckland[1] I refer to my substantive judgment. I dismissed Mr A's appeal against adecision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal andheld that the respondent Committee was entitled to its reasonable costs anddisbursements.1[2] I have now received memoranda from counsel. The Committee seeks costs ona 2B basis together with a filing fee for sealing the judgment. The total sum sought is$10,685.50. Mr A agrees that the appeal is appropriately categorised on a 2B basis buthe seeks to offset costs he says should be awarded in his favour in regard to a partiallysuccessful application he made to adduce further evidence. Further, he argues thatcosts on the substantive appeal should be discounted for various reasons which Ioutline below.[3] I agree with counsel that it is appropriate to categorise the substantiveproceedings on a 2B basis. Indeed, the parties had already agreed that thatcategorisation was appropriate in a consent memorandum filed shortly after the noticeof appeal was filed. The only dispute between the parties is whether or not any stepswere taken by the Committee to commence its response to the appeal – item 53 in sch3 of the High Court Rules 2016. The Committee has claimed a time allowance forthat step of 0.5 of a day. Mr A says that no response was either required or filed. I amworking from home during the current COVID-19 crisis and I do not have access tothe file. I cannot check whether a response was filed. If a response was filed then theCommittee is entitled to its costs for taking that step. If there was no response filedthen it is not. Counsel should be able to agree on that issue. I also note that subsequentto the hearing, there were further steps required to deal with name suppression issues.Mr A asked for additional name suppression which had not been sought at the hearing.Memoranda were filed and I convened a teleconference. The Committee has notclaimed for these costs. It is entitled to do so – see item 54 in sch 3. Again, counselshould be able to agree these items.[4] I do not consider that I can deal with costs on the interlocutory hearing toadduce further evidence. That hearing was before Duffy J. She reserved leave to the1 A v National Standards Committee [2020] NZHC 563.parties to file memoranda in relation to costs.2 Mr A invites me to fix costs on thatapplication but I do not consider that it is appropriate for me to do so. Under r 14.8,costs on an interlocutory application are generally fixed in accordance with the ruleswhen the application is determined. In effect, costs on an interlocutory application aredealt with separately and not as part of the substantive proceeding. This reflects theposition that the merits of the interlocutory application may differ from the merits ofthe substantive proceeding.3 There are sound practical reasons in this case for abidingby that general rule. There are competing submissions from both counsel as to themerits of the interlocutory and what did or did not happen at that hearing. Thosecompeting submissions should be referred to Duffy J so she can make the appropriatecosts order.[5] Mr A also seeks to reduce the costs otherwise payable by him because ofcriticisms I made of the Tribunal's decision in my substantive judgment. I observedthat aspects of the decision were relatively superficial and that some findings wereconclusory.4 With respect to counsel's submissions, in this regard the shortcomingsin the Tribunal's decision cannot be laid at the Committee's door. I am not aware ofany rule or practice suggesting that the costs of a party who successfully defends apoorly reasoned but nevertheless correct decision should be reduced and no authoritywas cited for this proposition. I decline to allow a discount for this factor.[6] I do however consider that Mr A should be entitled to a modest discount for hissuccess in overturning the Tribunal's decision declining him name suppression. TheCommittee did not accept before me that, notwithstanding the additional medicalevidence that had become available, the Tribunal's decision could no longer besupported in this regard. This issue did not occupy too much time at the hearing ofthe appeal. I direct that the costs otherwise payable by Mr A are to be reduced by 10per cent to allow for Mr A's partial success in this regard. I decline to direct that partof Mr A's costs of obtaining a brief of evidence from Dr Goodwin be met by theCommittee as requested by Mr A. There is no justification for such direction and the2 A v National Standards Committee [2020] NZHC 392 at [31].3 Chapman v Badon Ltd [2010] NZCA 613; (2010) 20 PRNZ 83 at [12].4 A v National Standards Committee, above n (1), at [44(b)].evidence was relied on mainly to support the substantive appeal and only in part todeal with the name suppression issue.[7] The schedule of costs claimed by the Committee will require some amendmentas a result of this decision. Counsel should be able to agree on the amended costspayable. In the event of dispute, I direct that the same is to be referred to the Registrar.I certify for the filing fee payable on sealing the judgment.________________________________Wylie J