G v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 1380

G v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 1380 [18 June 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS ORIDENTIFYING PARTICULARS OF THE APPLICANTIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-510[2019] NZHC 1380IN THE MATTER of an application for judicial reviewBETWEEN GApplicantAND LEGAL COMPLAINTS REVIEWOFFICERRespondentNEW ZEALAND LAW SOCIETYIntervenorOn the papersCounsel: A O'Connor for ApplicantA M Powell and A P Lawson for RespondentP I C Comrie-Thomson for IntervenorJudgment: 18 June 2019JUDGMENT OF THOMAS J(COSTS)[1] Mr G successfully sought judicial review of the Legal ComplaintsReview Officer's (LCRO) decision to publish his name. While I indicated aprovisional view that Mr G was entitled to costs, I invited memoranda from counselwhich have now been received and considered.[2] Counsel for the LCRO submits that costs and disbursements cannot be awardedagainst the LCRO as a quasi-judicial officer and her actions in this case do not meetthe threshold for an award of costs against a judicial officer.[3] Mr G seeks the indulgence of the Court to make a costs determination in hisfavour (even at a reduced rate) so as to reimburse him for his out of pocket expensesin bringing this litigation. Mr O'Connor, for Mr G, stressed that the case was notbrought as a matter of choice; rather it was a necessary step to protect Mr G'sreputation within his professional career.[4] In Mr O'Connor's submission, there is a strong distinction between a judicialofficer, such as "Justices or Coroners" as opposed to a quasi-judicial officer. He saysthe roles of a judicial officer and a quasi-judicial officer are conceptually different. Ajudicial or quasi-judicial officer's immunity from liability in tort is quite different fromcosts that historically "follow the event", irrespective of the function of theunsuccessful party.[5] On the basis there was no claim for costs in relation to it, the Law Society wasneutral as to the issue of costs between Mr G and the LCRO.The law[6] Rule 14.2(1)(a) of the High Court Rules 2016 provides that costs are awardedto the party who succeeds unless there are exceptional reasons. However, an award ofcosts is discretionary.1[7] In Coroner's Court v Newton, the Court of Appeal held that costs will only beawarded against a judicial officer or body in the rarest of circumstances:2In this subject area it is important to keep first principle squarely in mind.Costs will only be awarded (even in judicial review proceedings) againstjudicial officers such as Justices or Coroners in the rarest of circumstanceswhen such a judicial officer has done something which calls for strongdisapproval. It is certainly not the practice to grant costs against Justices or aCoroner merely because that person made a mistake in law. It must be shown1 High Court Rules, r 14.1.2 Coroner's Court v Newton [2006] NZAR 312 (CA) at [44].that the judicial officer concerned has acted perversely, oppressively or in badfaith.[8] The question of whether the LCRO is a quasi-judicial officer was addressed inU v Legal Complaints Review Officer.3 Faire J listed the following provisions of theLawyers and Conveyancers Act 2006 as illustrating that the Officer is a quasi-judicialofficer:4(a) Section 206(2) of the Lawyers and Conveyancers Act 2006 grants thefirst defendant the power to hold hearings or, with the consent of theparties, to reach a determination on the papers;(b) Section 206(5) states that the first defendant is entitled to regulate herown procedure, subject to the requirements of the Lawyers andConveyancers Act 2006 and rules made thereunder;(c) Counsel and witnesses have the same privileges and immunities as ifthey were in a court of law when appearing before the first defendantpursuant cls 8 and 9 of the Third Schedule of the Lawyers andConveyancers Act 2006;(d) By s 211, the first defendant has the power to confirm, modify orreverse any decision of a Standards Committee and to exercise any ofthe powers which were, or could have been, exercised by theStandards Committee;(e) By s 209 of the Lawyers and Conveyancers Act 2006, the LCRO hasthe power to direct the Standards Committee to reconsider the matterand, in that case, the Standards Committee must have regard to thedirection given by the first defendant and the reasons for it;(f) The first defendant is entitled to order costs pursuant to s 210(1) ofthe Lawyers and Conveyancers Act 2006. Such orders are enforceableas a final judgment pursuant to s 215(1);(g) Clause 11 of the Third Schedule provides the first defendant with animmunity from civil or criminal liability in relation to acts oromissions in the course of carrying out her functions, duties or powersunless she has acted in bad faith; and(h) Section 262 provides that wilfully obstructing or deceiving the LCROis an offence punishable on summary conviction to a fine notexceeding $25,000.[9] This approach has been followed in subsequent High Court decisions. Forexample, Woolford J in Zhao v Legal Complaints Review Officer described the LCRO as3 U v Legal Complaints Review Officer HC Auckland CIV-2010-404-6350, 3 June 2011 at [54]–[62].4 At [54]."a quasi-judicial officer therefore prima facie immune from costs awards".5 On thisbasis, Woolford J identified the issue when considering whether costs should beawarded as whether the LCRO has acted oppressively, perversely, or in bad faith so asto justify a costs award being made against her. In Deliu v Hong, Winkelmann J stated,"... [I]t will be rare for costs to be awarded against a quasi-judicial officer such as theLCRO".6[10] The issue is whether an order for costs is necessary to express disapproval ofthe conduct of the judicial officer or body:7In short, errors of law will not by themselves support an award of costs; errorsof process will normally not support an award of costs; and judicialmisconduct in the way in which the hearing is conducted will normally haveto be of a particularly egregious kind for costs to be awarded. The question isnot whether the applicant is in some sense "deserving" of costs - in a largesense, such a person often will be. The critical point is that the order for costsis an expression of disapproval of the conduct of the judicial officer incharacter. There must be a clear basis for such an order.[11] In Ms Powell's submission, for the LCRO, any error in this case did not fallinto the category of "rarest of circumstances" which would call for strong disapprovalby this Court in the form of an order for costs.8 She notes that there have been nofindings of perverse or oppressive conduct or bad faith against the LCRO. Rather, theerrors identified were those of law and process only.[12] I accept that the errors identified in this case were errors of law and processonly, and that such errors would not normally support an award of costs against ajudicial officer or body, as noted in Coroner's Court v Newton.9[13] I also accept there is no basis for criticism of the LCRO's conduct before thisCourt. The LCRO abided the decision of the Court, save on the question of costs:105 Zhao u Legal Complaints Review Officer [2013] NZHC 1052, [2013] NZAR 917 at [18].6 Deliu v Hong HC Auckland CIV-2011-404-3758, 18 December 2012 at [13].7 Coroner's Court v Newton, above n 2, at [46].8 At [44].9 At [46].10 This is consistent with the principle noted by McCarthy P in New Zealand Engineering, CoachBuilding, Aircraft, Motor and Related Trades Industrial Union of Workers v Court of Arbitration[1976] 2 NZLR 283 at 285.Generally, when judicial bodies or judicial officers are so joined, they take nopart in the argument and abide the judgment of the court.[14] In Mr O'Connor's submission, the application of the principle in Coroner'sCourt v Newton in this case would create an inequality in the system, as a litigantcannot get costs against a quasi-judicial officer if successful but would be liable forcosts if unsuccessful. I note Ms Powell's submission in reply that it would be rare foran abiding judicial or quasi-judicial officer or body to seek costs against anunsuccessful litigant.Result[15] For these reasons, I decline to award costs and disbursements to Mr G. Theyare to lie where they fall.Thomas JSolicitors:Iorns Legal, Porirua for ApplicantCrown Law, Wellington for RespondentMeredith Connell, Auckland for Intervenor