GEARY V PROFESSIONAL CONDUCT COMMITTEE HC WN CIV-2009-485-002641

GEARY V PROFESSIONAL CONDUCT COMMITTEE HC WN CIV-2009-485-002641 14 June 2011IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2009-485-002641IN THE MATTER OF An appeal under s 106 Health PractitionersCompetence Assurance Act 2003BETWEEN IAN RUSSELL GEARYAppellantAND PROFESSIONAL CONDUCTCOMMITTEERespondentHearing: On the papersCounsel: A Beck for AppellantP J Radich and L I Van Dam for RespondentJudgment: 14 June 2011 at 11:30 AMI direct the Registrar to endorse this judgment with a delivery time of 11.30am on the 14th day of June 2011.JUDGMENT OF MACKENZIE J AS TO COSTS[1] By a judgment delivered on 22 July 2010, Wild J dismissed the appellant'sappeal to this Court against decisions of the Health Practitioners Disciplinary Tribunal finding the appellant guilty of professional misconduct amounting to both malpractice and serious negligence and imposing penalties, including cancellation ofthe appellant's registration as a psychologist. By a further judgment delivered on 30 September 2010, Wild J dismissed an application by the appellant for leave to appeal against the earlier judgment.[2] The respondent now applies for costs. Because of Wild J's subsequentappointment to the Court of Appeal, the application has been referred to me for decision.[3] In its application for costs, the respondent notes the appellant's advice thatthe appellant was granted legal aid in respect of both the appeal and the application for leave to appeal to the Court of Appeal. Under s 40(2) of the Legal Services Act 2000, no order for costs may be made against the appellant unless the Court is satisfied that there are exceptional circumstances. Section 40(3) provides:In determining whether there are exceptional circumstances under subsection(2), the court may take account of, but is not limited to, the following conduct by the aided person:(a) any conduct that causes the other party to incur unnecessary cost:(b) any failure to comply with the procedural rules and orders of the court:(c) any misleading or deceitful conduct:(d) any unreasonable pursuit of 1 or more issues on which the aided person fails:(e) any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:(f) any other conduct that abuses the processes of the court.[4] Counsel for the respondent relies particularly on paras (a) and (d) of that provision. As to para (a), counsel for the respondent submits that the appellant'sappeal to the High Court and subsequent application for leave to appeal to the Court of Appeal were preceded by a series of related but wholly unsuccessful challenges against the respondent, which are detailed in counsel's memorandum. Counselsubmits that the persistent legal challenges were brought by the appellant in a bid to prevent the Tribunal hearing the professional misconduct charge against him and that, having failed in that bid, the appellant then sought to challenge the Tribunal'sfinding of professional misconduct and its decision to strike him off the register of psychologists. The respondent submits that this string of unsuccessful legal challenges has undoubtedly caused the respondent to incur unnecessary cost.[5] As to para (d), the respondent submits that the crux of the appellant's appealwas that his conduct could not constitute professional misconduct. Counsel submitsthat the appellant's position on this issue was "soundly rejected by Wild J in both thedecision on the appeal and the leave decision". Counsel submits that that very issuewas previously raised and rejected in the earlier litigation. Counsel for therespondent accordingly submits that the appellant's continued pursuit of that issue was unreasonable. Counsel submits that the present is an exceptional case warranting an award of costs. The respondent submits that as its source of income ispractising fees of registered psychologists, it is the appellant's peers and indirectlythe public who have borne the burden of the appellant's "saga of litigation". It seeks costs on a category 2B basis totalling $9,024.[6] In his memorandum in response, counsel for the appellant submits that there are no exceptional circumstances. Counsel notes the high threshold referred to inAwa v Independent News Auckland Ltd1 and Laverty v Para Franchising Ltd.2[7] As to the issue of conduct causing unnecessary cost, counsel for the appellant submits that the conduct relied upon must be conduct in relation to the proceeding to which the costs application relates. Counsel refers to the decision of the Supreme Court in Paper Reclaim Ltd v Aotearoa International Ltd3 on the question of conduct relevant for the purposes of increased or indemnity costs and notes that the Court of Appeal has applied that principle to costs generally in Boyko v Body Corporate 205963.4 Counsel submits that the respondent has not identified any conduct of the appellant that increased the costs to it in the appeal or application for leave to appealand submits that the appellant's points were focused and were presented concisely.He submits that the conduct of the appellant did not deviate from what is expected of a litigant in the High Court.[8] As to the alleged unreasonable pursuit of issues, counsel submits that there was a fundamental distinction between the issues involved in the judicial review proceedings and the appeal proceedings. He submits that the question in the judicial1 Awa v Independent News Auckland Ltd [1996] 2 NZLR 184 (HC); [1997] 3 NZLR 590 (CA).2 Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA).3 Paper Reclaim Ltd v Aotearoa International Ltd [2007] 3 NZLR 169.4 Boyko v Body Corporate 205963 [2010] NZCA 602.review context was whether the appellant's disclosures about a patient couldconstitute misconduct, whereas the question in the appeal was whether it didconstitute misconduct. He submits that that is not the same issue and that it was not unreasonable for the appellant to pursue the appeal in the way that he did.[9] On the question of whether there has been conduct causing the respondent to incur unnecessary cost, I accept Mr Beck's submission that the inquiry must beconfined to conduct in this particular litigation. When the inquiry is so focused, I can see nothing in Wild J's judgment which indicates that any conduct in relation tothe appeal itself has caused unnecessary cost, to a level which would give rise to exceptional circumstances. The appellant was entitled to pursue his right of appeal. It is clear from the two judgments of Wild J that he formed an adverse view of theappellant's actions in pursuing what he described as a crusade against the complainant "doggedly if not obsessively pursued". Wild J's comments areprincipally directed to the appellant's actions which were under consideration in thedisciplinary proceedings, and on the appeal. They do not seem to me to be directed at the way in which the appeal itself was conducted.[10] On the question of whether there has been unreasonable pursuit of issues, I do not think that, in pursuing an appeal against a decision which had the effect of depriving him of his professional standing, the appellant can be said to have been acting unreasonably. I consider that there is force in Mr Beck's submission that theissues in the earlier litigation, and on the appeal, were different. The earlier litigationover whether the appellant's actions could constitute professional misconduct couldnot have given him any cause for optimism as to the outcome in the disciplinary proceedings on whether those actions did constitute professional misconduct. However, I do not consider that the appellant's pursuit of the appeal, or theapplication for leave to appeal can be categorised as an unreasonable pursuit of issues. A professional person should not lightly be held to be acting unreasonably inpursuing a right of appeal against a disciplinary decision affecting the professional'sright to practice.[11] For these reasons I hold that there are not in this case exceptional circumstances justifying a departure from the ordinary rule that no costs are to be awarded against a legally aided person. I decline to order costs.[12] Counsel for the respondent did not, in the alternative, seek an order under s 40(5) specifying what order for costs would have been made against the appellant if s 40 had not affected the position. For completeness, I should do so, for what it is worth. I specify that, but for the operation of s 40(2), I would have awarded costs on a 2B basis in the amount claimed by the respondent, namely $9,024."A D MacKenzie J"Solicitors: Gault Mitchell, Wellington for AppellantMinter Ellison Rudd Watts, Wellington for Respondent