JEREMY JAMES MCGUIRE v SECRETARY FOR JUSTICE [2018] NZSC 116

JEREMY JAMES MCGUIRE v SECRETARY FOR JUSTICE [2018] NZSC 116 [27 November 2018]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 22/2018[2018] NZSC 116BETWEEN JEREMY JAMES MCGUIREAppellantAND SECRETARY FOR JUSTICERespondentHearing: 1 August 2018Court: Elias CJ, William Young, Glazebrook, O'Regan andEllen France JJCounsel: Appellant in personU R Jagose QC and G L Melvin for RespondentP N Collins for New Zealand Law Society as IntervenerS W B Foote and T J Mackenzie for New Zealand Bar Associationas IntervenerJudgment: 27 November 2018JUDGMENT OF THE COURTA The appeal is dismissed.B There is no order for costs.____________________________________________________________________REASONSElias CJ, William Young, Glazebrook and O'Regan JJ [1]Ellen France J [90]ELIAS CJ, WILLIAM YOUNG, GLAZEBROOK AND O'REGAN JJ(Given by William Young J)Table of ContentsPara No.The appeal [1]The legislative scheme [6]The background to Mr McGuire's application for approval [13]The 2013 decision [19]Subsequent events [23]Challenges to the result of the disciplinary proceedings [23]The 2015 decision [25]Mr McGuire's claim against the New Zealand Law Society [26]Mr McGuire's later interactions with the Ministry of Justice [28]The grounds upon which the 2013 decision is challenged [29]The High Court judgment [33]The Court of Appeal judgment [37]Our approach [41]The process provided for by s 83 [41]The privative effect of ss 82(3) and 83 [43]The application for review of the 2013 decision is misconceived [46]Costs [52]How the issue arose [52]The position as it was understood to be before Joint ActionFunding [55]The costs rules [62]Controversies over the primary rule and the lawyer in personexception [68]Joint Action Funding [71]The approach of the Court of Appeal in the present case [74]Commissioner of Inland Revenue v New Orleans Hotel (2011) Ltd [75]The arguments before us [77]Our position [82]Disposition [89]The appeal[1] In issue in this appeal is a decision by the respondent, the Secretary for Justice,to decline an application by the appellant, Mr Jeremy McGuire, for approval to providelegal aid services as a lead provider in family law. This decision was made on7 November 2013 (the 2013 decision).[2] On 19 September 2016, Mr McGuire, representing himself, issued judicialreview proceedings in the High Court in respect of the 2013 decision and also acertificate of standing issued by the New Zealand Law Society (the Law Society).1 Hesubsequently amended his statement of claim to include a challenge to anotherdecision made by the Secretary in 2015 (the 2015 decision) to refuse him approval toprovide legal aid services as a lead provider in criminal law and as a duty solicitor.Mr McGuire's challenges to the certificate of standing and the 2015 decision are notin issue in this appeal.[3] The Secretary applied to strike out the claim in respect of the 2013 decision.This was on the basis of s 83 of the Legal Services Act 2011 (the Act) which provides:83 Judicial reviewA person may not apply for judicial review of any decision madeunder this subpart until the person has sought and obtained a reviewof the Secretary's decision under section 82.As we will explain, Mr McGuire had a statutory right under s 82 of the Act to seek areview of the 2013 decision, a right which he did not exercise. The position of theSecretary is that as Mr McGuire has not sought and obtained a review under s 82, heis not entitled to apply for judicial review of the 2013 decision.[4] The Secretary's application was dismissed by Cull J2 but a cross-appeal againsther decision was allowed by the Court of Appeal.3[5] The primary question for this Court on appeal is whether the Court of Appealwas correct to allow the cross-appeal. As will become apparent, however, the case hasalso given rise to important and controversial issues as to costs which meritconsideration.The legislative scheme[6] Section 75 of the Act provides that a person must not provide a legal aid serviceunless approved by the Secretary to do so. Applications for approval are made under1 The challenge is to the reference in the certificate to then open complaints to the Law Societyagainst Mr McGuire.2 McGuire v The Secretary for Justice [2017] NZHC 365 [McGuire (HC)].3 McGuire v The Secretary for Justice [2018] NZCA 37, [2018] 3 NZLR 71 (French, Miller, Cooper,Winkelmann and Clifford JJ) [McGuire (CA)].s 76. Under s 77(1) approval can only be granted "if the Secretary is satisfied that theperson meets the criteria prescribed in regulations".4 Section 77(4) requires theSecretary to provide reasons for his or her decision to give or decline approval.[7] Section 78(1) provides for the establishment of selection committees to assessapplications for approval to provide legal aid services and to advise the Secretary ofthe suitability of applicants.[8] As noted above, s 82 allows for review of a decision of the Secretary regardingapproval. It provides:(1) A person may apply to the Review Authority for a review of a decisionof the Secretary in respect of that person—(a) declining the person's application for approval to provide 1 ormore legal aid services or specified legal services:(2) An application for review must be lodged with the Review Authoritywithin 20 working days from the date of notice of the Secretary'sdecision.(3) The Review Authority may accept a late application no later than3 months after the date on which notice of the relevant decision wasgiven to the person, if the Review Authority is satisfied thatexceptional circumstances prevented the application from being madewithin 20 working days after the date on which notice is given.The right of review under s 82 extends to decisions imposing conditions on approvalsto provide legal aid services,5 interim restrictions6 (imposed under s 101), sanctions7(imposed under s 102) and cancellations8 (made under s 103). This subpart alsoincludes s 83 which we have set out above.[9] The Review Authority is established by s 84 of the Act. Section 84(2) requiresthe Minister of Justice to appoint one person to be the Review Authority and empowersthe Minister to appoint one or more Deputy Review Authorities. Such persons must4 The criteria are prescribed in the Legal Services (Quality Assurance) Regulations 2011.5 Legal Services Act 2011, s 82(1)(b).6 Section 82(1)(c).7 Section 82(1)(d).8 Section 82(1)(e).be enrolled as barristers and solicitors of the High Court, and have at least seven years'legal experience.9[10] The Review Authority determines a review by confirming, modifying, orreversing the decision under review.10 It must provide reasons for its decision11 andits decision is binding on the Secretary and the person to whom the decision applies.12[11] Regulation 27 of the Legal Services (Quality Assurance) Regulations 2011provides:27 Conduct of review(1) In conducting a review, the Review Authority—(a) must consider the application and any written submissionsmade by the person seeking the review; and(b) must consider any written submissions made by the Secretary;and(c) may consider any statement, document, information, ormatter that in the Review Authority's opinion may assist theAuthority to deal effectively with the subject of the review,whether or not it would be admissible in a court of law.(2) The Review Authority may—(a) request further information from the Secretary or the personseeking the review; and(b) have regard to that information; and(c) specify a date by which the information must be provided; and(d) refuse to consider any information provided after that date.[12] Part 3 of sch 3 to the Act contains further provisions applying to the ReviewAuthority.13 Clause 19(1) and (2) of that schedule provide that the Review Authoritymust perform his or her functions independently of the Minister and that the Ministercannot direct the Review Authority in relation to its functions. And cl 20 requires theReview Authority to conduct reviews "with all reasonable speed".9 Section 84(3).10 Section 86(1).11 Section 86(2).12 Section 86(3).13 Section 87.The background to Mr McGuire's application for approval[13] Mr McGuire was admitted as a barrister and solicitor in 1992. He practisedinitially in Wellington and later moved to Palmerston North.[14] Mr McGuire has faced a number of professional complaints and some of thesehave resulted in adverse findings by various standards committees of the Law Society.Most of these were of only limited significance. As well, since the 2013 decision,Mr McGuire has achieved a reasonable measure of success in judicial reviewproceedings challenging those findings. There was, however, one complaint whichwas of far more moment. It resulted in disciplinary charges before the Lawyers andConveyancers Disciplinary Tribunal and was of critical significance to the 2013decision.[15] In 2008 Mr McGuire entered into contingency fee arrangements with a legallyaided client. In late 2008, Mr McGuire's client complained to the Legal ServicesAgency (LSA) (operating under the now repealed Legal Services Act 2000) thatMr McGuire was seeking the payment of a fee additional to the grant of legal aid. TheLSA took the view that the contingency fee arrangements were precluded by the termsof the Legal Services Act. Accordingly, on 13 September 2010 the LSA cancelled hislegal aid approvals and terminated his legal services contract. As a result of thisdecision, Mr McGuire was no longer able to provide legal aid services.[16] Mr McGuire initiated a review of this decision and, when this wasunsuccessful, he sought judicial review in proceedings which were eventuallydismissed by Dobson J in the High Court in April 2013.14 His subsequent attempts tochallenge this in the Court of Appeal failed as: (a) his first appeal was deemedabandoned as he did not meet the time limits; and (b) his application for an extensionof time for a second appeal was dismissed.15 Presumably because of the continuingcurrency of the review and disciplinary proceedings to which we have just referred,Mr McGuire did not initially apply for approval when the Legal Services Act 2011came into effect.14 McGuire v The Ministry of Justice [2013] NZHC 894.15 McGuire v The Ministry of Justice [2014] NZCA 556.[17] There were also civil proceedings between Mr McGuire and his client in whichMr McGuire unsuccessfully attempted to recover the fees he claimed he was entitledto under the contingency fee arrangements. In the High Court he was ordered to payindemnity costs.16 A separate decision as to quantum was delivered later.17Mr McGuire appealed against both judgments. His appeal against those judgmentswas dismissed by the Court of Appeal which made an increased costs order againsthim on the basis, inter alia, that his appeal was "completely lacking in merit bothfactually and legally".18[18] As we have noted, he was prosecuted before the Lawyers and ConveyancersDisciplinary Tribunal in respect of the contingency fee arrangements. In October2011, he pleaded guilty before the Tribunal to a charge of unsatisfactory conduct.19The proceedings were adjourned to allow mentoring and supervision arrangements tobe put in place with a view to the eventual imposition of a rehabilitative sanction.Eventually, on 3 October 2013 he was censured by the Tribunal and ordered to pay$14,700 in costs.20The 2013 decision[19] Mr McGuire's application for approval as a lead provider of family lawservices was made on 13 May 2013, around a month after the dismissal of his reviewproceedings in respect of the termination of his contract under the 2000 Act. At thisstage, the Tribunal had not imposed a sanction in respect of the charge ofunsatisfactory conduct to which Mr McGuire had pleaded guilty. He had, however,presumably either completed or largely completed the mentoring and supervisionarrangements put in place after the October 2011 hearing.16 McGuire v Sheridan HC Wellington CIV-2009-485-1901, 15 April 2010 at [77].17 McGuire v Sheridan HC Wellington CIV-2009-485-1901, 12 May 2010.18 McGuire v Sheridan [2011] NZCA 15 at [18]. Leave to appeal to the Supreme Court was declined:see McGuire v Sheridan [2011] NZSC 40.19 Wellington Standards Committee (No 1) v McGuire [2011] NZLCDT 28.20 Wellington Standards Committee (No 1) v McGuire [2013] NZLCDT 41.[20] Mr McGuire's application was referred to a selection committee forrecommendation to the Secretary on 9 July 2013. That committee recommended thatthe application be declined. It considered that Mr McGuire:(a) had not met the professional entry requirements;(b) did not have service delivery systems to provide and account for legalaid services in an effective, efficient and ethical manner;(c) had not provided references that supported his experience andknowledge in family law; and(d) had not demonstrated experience and competence in family law.[21] The selection committee's recommendation was provided to the Secretary aspart of the Secretary's decision on Mr McGuire's suitability to provide legal aid. TheOctober 2013 decision of the Tribunal as to the penalty and costs resulting from thedisciplinary charges against Mr McGuire was also made available to the Secretary.Mr McGuire also made further submissions in respect of the recommendations of theselection committee.[22] The Secretary's decision addressed the recommendations of the selectioncommittee, the decision of the Tribunal, and the additional material supplied byMr McGuire. In the event, the Secretary's views coincided with the recommendationsof the selection committee. It is, however, clear that the Secretary gave the applicationindependent consideration and engaged directly with Mr McGuire's submissions andadditional material (including references) which he had supplied.Subsequent eventsChallenges to the result of the disciplinary proceedings[23] Mr McGuire sought judicial review of the Tribunal's decisions and he waspartly successful before Mallon J.21 She considered that the censure imposed by the21 McGuire v Wellington Standards Committee (No 1) [2014] NZHC 3042 [Wellington (HC)].Tribunal went beyond the sanction contemplated when Mr McGuire had pleadedguilty and reflected not just the disciplinary offence which he had acknowledged butalso concerns about his subsequent behaviour, most significantly, his apparent inabilityto accept that he had been in the wrong.22 As a result, she quashed the censure.23 Shelater awarded Mr McGuire costs of $14,700, effectively cancelling out the Tribunal'scosts award.24[24] Mr McGuire's appeal against the judgment of Mallon J was dismissed, withthe Court of Appeal awarding increased costs by 50 per cent given the untenable natureof most of the arguments advanced, coupled with Mr McGuire making seriousallegations without evidential foundation.25The 2015 decision[25] On 24 July 2015, Mr McGuire applied to the Secretary for approval to providelegal aid services in criminal law and as a duty solicitor. This application was declinedby a decision conveyed to Mr McGuire by letter on 27 October 2015. Mr McGuireexercised his statutory right of review but the decision of the Secretary was upheld.Mr McGuire's claim against the New Zealand Law Society[26] In his pleadings and affidavits, Mr McGuire has referred on a number ofoccasions to a settlement between himself and the Law Society which was entered intoin August 2016. Due presumably to a confidentiality agreement, the nature ofMr McGuire's claims is not completely apparent. It is, however, clear that he wasdissatisfied with the way in which complaints against him had been dealt with and inrespect of which he had been successful in subsequent judicial review proceedings.26[27] As a result of the settlement, the Law Society wrote to Mr McGuire on31 August 2016 apologising for "the stress, inconvenience and embarrassment caused22 At [84]–[89].23 At [92].24 McGuire v Wellington Standards Committee (No 1) [2015] NZHC 448.25 McGuire v Wellington Standards Committee (No 1) [2015] NZCA 569 at [52].26 Wellington (HC), above n 21; McGuire v Manawatu Standards Committee [2015] NZHC 2100;McGuire v Manawatu Standards Committee [2016] NZHC 1052 [McGuire (Gendall J)]; and hewas partly successful in McGuire v New Zealand Law Society [2017] NZHC 2484.to you by the errors which resulted in three censure orders for unsatisfactory conductin 2012 and 2014". The letter also stated: "The Law Society also regrets the deepdistress the disciplinary prosecution in 2008–2011 caused you." And on 1 September2016, the Law Society issued him with a legal aid provider certificate of standingwhich recorded that it considered that "Mr McGuire is of good standing" but referredto his plea of guilty to the disciplinary charge in October 2011 and to two opencomplaints against him.Mr McGuire's later interactions with the Ministry of Justice[28] On 15 September 2016 Mr McGuire sent his new certificate of standing toMs Amy Davis at the Ministry of Justice and asked if this would change his positionin terms of legal aid approval. She responded by saying that as the open complaintsreferred to were "still on-going": the Secretary for Justice will not be able to make an assessment of whetheror not you meet the criteria for approval.He responded by saying that:If I can't even apply with this certificate then serious questions need to beasked.Ms Davis responded by saying:You are not prevented from applying.My advice is that any application from you, with that certificate of standing,will be premature and will likely be declined for the same reasons your firstapplication was declined. As I have stated before, it is impossible for theSecretary for Justice to assess whether or not anyone meets the fit and properperson requirements when complaint determinations are outstanding.The grounds upon which the 2013 decision is challenged[29] The challenge to the 2013 decision as pleaded in the amended statement ofclaim rests on complaints about both the selection committee and the Secretary.[30] As against the selection committee, there are the following contentions:(a) Two of the three legal members of the selection committee had been ona Law Society standards committee which had earlier censuredMr McGuire, a censure which was set aside in the High Court in 2016.27(b) One of the legal members had refused to provide Mr McGuire with areference on the basis that she did not know him well enough, but shewas the source of adverse comments in the selection committee'srecommendations on his ability and experience as a family lawyer.(c) For these reasons and because of pervasive hostility towardMr McGuire, the committee was biased against him.(d) What are said to be mistakes of law in the recommendations as to arequirement for recent relevant legal experience and the view thatMr McGuire did not have such experience.[31] As against the Secretary, there are contentions that the decision wasunreasonable and unfair because it was based on the recommendations of the selectioncommittee and that the Secretary had made a number of legal and factual errors.[32] The pleading relies on events which post-dated the 2013 decision, in particularthe results of subsequent litigation in which Mr McGuire was involved. That apart,the factual basis for all the contentions, including those relating to the legal membersof the selection committee, was known to Mr McGuire in 2013.The High Court judgment[33] Cull J considered that the principal issue was whether the statutory languagein s 83 of the Act ousted the right to judicial review in breach of s 27(2) of theNew Zealand Bill of Rights Act 1990.28 If s 83 did not oust the right to judicial review,then Mr McGuire's failure to exercise his statutory review rights under the Act would27 See McGuire (Gendall J), above n 26.28 McGuire (HC), above n 2, at [31(1)].be of no moment. In approaching this question, she referred to s 6 of the Bill of Rightsand considered whether she could interpret s 83 of the Act in a way which rendered itconsistent with s 27(2):29The interpretation of s 83 of the Act that is consistent with the rights andfreedoms of the NZBORA must be the preferred interpretation, as s 6NZBORA provides. For this reason, I accept Mr McGuire's argument that thewords in s 83 "a person may not apply for judicial review" is permissible incircumstances where a person has not met the strict time limits within the Act.If s 83 is interpreted as a mandatory requirement, the statutory provisionoperates as a privative clause, which purports to oust this Court from itsjudicial review function. Such an interpretation is inconsistent with theNZBORA.[34] She considered that it would have been futile for Mr McGuire to seek a reviewof the 2013 decision by the Review Authority.30 That finding was based on thecorrespondence set out above between Mr McGuire and Ms Davis that took place inSeptember 2016.31 Cull J thought the correspondence made it plain to Mr McGuirethat there was no point in him reapplying or seeking a review until outstanding clientcomplaints against him had been determined.32[35] Cull J continued:[41] I accept Mr McGuire's submission that in the face of that clearindication, seeking a review before the Review Authority would have been awaste of its and his time. For that reason, I am unable to accept the Secretary'ssubmission that the operation of the Act provisions, restricting or oustingjudicial review rights, could be ameliorated by Mr McGuire making a freshapplication, if he had failed to meet the time limits under s 82.[42] On these facts and in these circumstances, I am not prepared to reads 83 as a mandatory requirement that a person must apply for a review to theReview Authority, before taking the only other step available to him, tochallenge the 2013 decision, being judicial review.Something appears to have miscarried in [41]. The evidence to which she referred –the correspondence in September 2016 – could not have been material to the decisionmade by Mr McGuire in 2013 not to seek a review.29 At [38] (footnote omitted).30 At [40].31 See above at [28].32 McGuire (HC), above n 2, at [40].[36] Accordingly, Cull J dismissed the Secretary's application to strike out thechallenge to the 2013 decision.33The Court of Appeal judgment[37] The Court of Appeal started its analysis with its view of the natural andordinary meaning of s 83:[44] We think the meaning is clear. The section provides instraightforward terms that there can be no application for judicial review untilthe applicant has sought and obtained a review of the Secretary's decision byapplication to the Review Authority under s 82. The result of such a reviewmight be favourable or unfavourable. Obviously, if favourable, there wouldbe no need to make an application for judicial review. It would only be if anadverse decision of the Secretary were upheld by the Review Authority thatthe applicant would need to apply for judicial review. In other words, at thepoint when any relevant rights or privileges had been affected, the practitionerwould have the right to apply for judicial review.[45] Viewing s 83 in the context of the provisions of subpt 2 of pt 3 of theAct, it can be seen as a deferral of the right to apply for judicial review whilethe special statutory process envisaged by the Act takes place. Thestatutory scheme requires the review to be carried out expeditiously. A timelimit is provided within which an application for review must be lodged (20working days from the date of notice of the Secretary's decision), but theReview Authority may accept a late application no later than three monthsafter the date of notice if there were exceptional circumstances that preventedthe application from being made within 20 working days. [46] There is nothing in this context that suggests that any interpretationother than the plain meaning would serve the statutory purpose. Thepreference is for the statutory review process to be followed before resort ismade to the High Court.[47] We think it implicit in the drafting of s 83 that if a person affected doesnot seek a review of the Secretary's decision under s 82, whether within 20working days or within a period of up to three months in the case ofexceptional circumstances, then the right to apply for judicial review will belost. Any other interpretation would simply enable the statutory procedures tobe bypassed. This means s 83 impinges on the right affirmed by s 27(2) ofthe New Zealand Bill of Rights Act.(footnotes omitted)33 At [56].[38] The Court then turned to whether, on this interpretation, s 83 was, for thepurposes of s 5 of the Bill of Rights, a justified limit on s 27(2):[48] We consider that it is demonstrably justified for a number ofreasons. First, as already discussed, the right to make an application to theHigh Court is simply deferred, not abridged. If the Review Authority'sdecision is unacceptable, the applicant can apply to the High Court at thatpoint. The right to do so is only lost where the applicant fails to participate inthe statutory procedures set out in the Act. Second, the Review Authority hasall the powers necessary to give relief in an appropriate case. The fact that itcan substitute its decision on the merits and in a process not attended by delayand cost, thereby providing an appropriate alternative to an immediateapplication for judicial review, is a further indication that the limits arejustified. The fact that there is a statutory process providing for a prompt andthorough reconsideration of declined applications no doubt assists inachievement of the clear statutory objective of ensuring that competentpersons are contracted to provide legal aid services for members of the public.[49] In our view, the natural and ordinary meaning of s 83 results inreasonable limits, demonstrably justified in a free and democratic society, onthe right to apply for judicial review.[50] The consequence is that in terms of a Hansen analysis, the naturalmeaning of the provision must be adopted.[39] The Court of Appeal noted that although Cull J made reference to R v Hansen,34she did not undertake the approach adopted in Hansen.35 She had considered whethers 83 could be interpreted in a manner that was consistent with the right to judicialreview pursuant to s 6 of the Bill of Rights, without first determining whether anylimitation on the right was demonstrably justifiable. Although disagreeing with thisapproach to analysing purported limitations on rights under the Bill of Rights, theCourt of Appeal considered that even if s 6 was applied in that way, Cull J'sinterpretation of s 83 was not possible.36 It said:37We consider there is no doubt that s 83 is intended to be prohibitive, and notpermissive. The words "may not" admit of no ambiguity, and there is nothingin the context in which they are used that suggests to the contrary.34 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.35 McGuire (CA), above n 3, at [51].36 At [51].37 At [52].[40] On that basis, the Court of Appeal concluded that the High Court was wrongnot to strike out the challenge to the 2013 decision.38 It accordingly struck out thatpart of Mr McGuire's claim.Our approachThe process provided for by s 83[41] Section 83 is expressed in slightly awkward terms but the underlying policyand purpose are apparent. A statutory review process is provided and the scheme ofthe Act is that dissatisfaction with a decision made by the Secretary should beaddressed pursuant to that review process before judicial review proceedings arecommenced. The statutory review is carried out by the Review Authority, being alegally qualified person who acts independently of the Minister. There is nothing inthe Act or regulations to suggest that the Review Authority should defer to the decisionof the Secretary. If of the opinion that the Secretary's decision is wrong, the ReviewAuthority will reverse or vary it. We read s 82 as providing for a fresh considerationof the application.[42] In the course of argument, Mr McGuire referred to the relevant OperationalPolicy of the Ministry of Justice which provides:The scope of any review is limited to the information originally submitted inthe application and assessed by the Selection Committee. If new informationis submitted by the applicant, it is considered to be a new application andtherefore must be submitted to the Ministry for assessment in accordance withthe application for approval process.Where the circumstances relating to an application change significantly afterconsideration by the selection committee or the Secretary, it may be sensible for thenew circumstances to be addressed in a fresh application to the Secretary. This wouldbe particularly so if the new circumstances relied on relate to experience (or otherfactors) which differ materially from those addressed by the selection committee. Thatsaid, the statement in the Operational Policy is wrong. As noted earlier, reg 27provides that the Review Authority must consider "any written submissions made bythe person seeking the review". We see no justification for confining the review38 At [59].process to the material which was before the selection committee and no basis at allfor preventing an applicant for review complaining about the processes andrecommendations of the selection committee or the decision of the Secretary.The privative effect of ss 82(3) and 83[43] Given the constitutional importance of judicial review, reinforced as it is bys 27(2) of the Bill of Rights, the courts approach privative clauses cautiously and inparticular will give anxious consideration to their interpretation and application.[44] Section 83 is a channelling provision which operates privatively by deferringjudicial review until the statutory review process has been completed. Further, wherea s 82 review has not been sought and, by reason of s 82(3), can no longer be sought,the apparent effect of s 83 is to exclude judicial review.[45] We propose to leave open the questions whether ss 82(3) and 83 are properlyregarded as privative and inconsistent with the right of judicial review provided for bys 27(2) of the Bill of Rights and, if so, whether they are justified limits for the purposesof s 5 (on both of which questions there is scope for debate). We also leave open thequestion whether s 83 is capable of any meaning other than that applied to it by theCourt of Appeal. This is because on any conceivable approach to the questions justidentified, the application for review of the 2013 decision is misconceived.The application for review of the 2013 decision is misconceived[46] A restrictive reading of a privative clause so as to permit judicial review willusually (and perhaps always) represent a conclusion by the court that the decision inquestion is not a decision of the kind preserved, on the proper interpretation of thestatute, from review or perhaps that the particular challenge in issue is not of the kindprecluded. Neither condition is satisfied in this case. The decision to refuseMr McGuire approval to provide legal aid services was clearly just the sort of decisionfor which the statutory review process was established.[47] It will be recalled that Cull J held that Mr McGuire had received indicationsfrom the Ministry that "seeking a review before the Review Authority would havebeen a waste of its and his time".39 In reaching this conclusion, she referred to the2016 correspondence which, of course, could have had no bearing on the decisionstaken in 2013. It is, however, probably the case that Mr McGuire did consider that areview would be pointless while the disciplinary proceedings were pending and thatthis is why he did not exercise his s 82 rights in respect of the 2013 decision.[48] That Mr McGuire had pleaded guilty to a disciplinary charge associated withhis dealings with a legally aided client was plainly material to whether he should begranted approval. Also material was his general complaints history. There were alsoother reasons why approval was declined. It may well be that the prospects of successof a s 82 review were as limited as he feared. It remains the case however that he wasperfectly entitled to have all of the issues reassessed by the Review Authority. In anyevent, because s 83 operates primarily by deferring the right to seek judicial review,the principal issue for us is whether it was impracticable for him to exercise hisstatutory review rights first and then issue judicial review proceedings later. As willbe apparent, we do not see that course of action as impracticable.[49] Although Mr McGuire referred us to the extract from the Operational Policy,he did not suggest that the Ministry's policy of limiting the scope of review was thereason why he did not seek review of the 2013 decision. As noted earlier, he soughtreview of both the original cancellation of his approval and the 2015 decision.[50] The statutory scheme amounts to a form of licensing. The appropriateness ofa particular lawyer being able to provide legal aid services has to be determined inlight of the actual circumstances as they are at the time of the application. That this isso is reflected in the time limits imposed by s 82 and the "reasonable speed"requirement imposed on the Review Authority by cl 20 of sch 3 to the Act. It is alsoconsistent with the limited currency (three months) of a certificate of standing fromthe Law Society. Given this, it seems inescapable that, in this case, the statutoryreview process initiated promptly after the 2013 decision, providing for freshconsideration of the application and conducted with "reasonable speed", offered a farbetter mechanism for challenging the 2013 decision than judicial review commenced39 See above at [35].nearly three years later. This is all the more so given the entitlement of Mr McGuireto re-apply for approval, an application which would be assessed in light of thecircumstances then current. In a practical sense, the 2013 decision has been overtakenby the 2015 decision. Further, the judicial review proceedings raise no point of generalprinciple. In these circumstances and, in light of the effluxion of time, no sensibleremedy could be provided in these proceedings.[51] Mr McGuire did not exercise his statutory review rights at the time and we seeno justification for him now being permitted to challenge the 2013 decision so longoutside the time limits provided by s 82(3). It follows that his application for judicialreview must fail and can therefore be struck out.CostsHow the issue arose[52] Although Mr McGuire successfully opposed the Secretary's strike-outapplication in the High Court, Cull J did not award him costs.40 Mr McGuire appealedagainst the judgment of Cull J on this point; an appeal which was unsurprising given:(a) the then usual practice of awarding costs to lawyers who had successfully sued ordefended in person; and (b) Cull J not having given reasons for departing from thispractice.[53] Before the appeal came on for hearing, the Court of Appeal in Joint ActionFunding Ltd v Eichelbaum decided that lawyers who appear in person are not entitledto costs if successful.41 If correctly decided, Joint Action Funding was fatal toMr McGuire's appeal. As it turned out, his appeal was overtaken by subsequentevents; this because the Secretary's cross-appeal against the substantive judgment ofCull J was successful and therefore the basis for Mr McGuire's claim for costs fellaway.[54] When leave to appeal was granted in the present case, the correctness of JointAction Funding was put in issue and, as a result, there were interventions from the40 She did, however, direct that he recover his disbursements: see McGuire (HC), above n 2, at [57].41 Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249, [2018] 2 NZLR 70.Law Society and the New Zealand Bar Association (the Bar Association). As well, theSolicitor-General, who appeared for the Secretary, also engaged extensively with theissue.The position as it was understood to be before Joint Action Funding[55] Until the Court of Appeal judgment in Joint Action Funding, the generalunderstanding was that a successful litigant in person was entitled to recoverdisbursements but not costs.42 We will refer to this as "the primary rule". As anexception to the primary rule, a litigant in person who was also a lawyer could recovercosts. We will refer to this as "the lawyer in person exception". A party who hadconducted litigation using an employed lawyer could also recover costs. We will referto this as "the employed lawyer rule". Whether the employed lawyer rule was properlyseen as an application of the primary rule (in the sense that such a party was not to beregarded as self-represented) or an exception may be open to debate. As will becomeapparent there is some practical overlap between the employed lawyer rule and thelawyer in person exception where the litigant is a lawyer but is represented by a lawyerwhom he or she employs.[56] The primary rule can be traced back many centuries – in fact to passages inCoke's Institutes explaining the Statute of Gloucester 127843 – and has been42 Although it upheld the primary rule, the Court of Appeal in Re Collier (A Bankrupt) [1996] 2NZLR 438 (CA) at 441–442 noted that there may be exceptional circumstances which justifydeparting from the application of the rule. Disbursements have been held to include expensesincurred by a McKenzie friend: see Knight v The Veterinary Council of New Zealand HCWellington CIV-2007-485-1300, 31 July 2009. We leave open whether there is an exceptionalcircumstances exception and express no opinion as to the disbursements allowed in Knight.43 Statute of Gloucester 1278 (Eng) 6 Edw 1 c 1. In Sir Edward Coke's The Second Part of theInstitutes of the Laws of England (E and R Brooke, London, 1797) at 288 he said: "Here is expressemention made but of the costs of his writ, but it extendeth to all the legall cost of the suit, but notto the costs and expences of his travell and losse of time, and therefore costages commeth of theverb conster, and that againe of the verb constare, for these costages must constare to the court tobe legall costs and expences."consistently applied in New Zealand.44 Suggestions that the court should abrogate theprimary rule have been rejected on the basis that this would properly require legislativeaction.45[57] The leading case on the lawyer in person exception is The London ScottishBenefit Society v Chorley.46 There Brett MR observed:47When an ordinary litigant appears in person, he is paid only for costs out ofpocket. He cannot himself take every step, and very often employs a solicitorto assist him: the remuneration to the solicitor is money paid out of pocket.He has to pay the fees of the court, that is money paid out of pocket; but forloss of time the law will not indemnify him. When, however, we come to thecase of a solicitor, the question must be viewed from a different aspect. Thereare things which a solicitor can do for himself, but also he can employ anothersolicitor to do them for him; and it would be unadvisable to lay down that heshall not be entitled to ordinary costs if he appears in person, because in thatcase he would always employ another solicitor.The solicitors in Chorley were entitled to the same costs as if they had employed asolicitor, except for those items which did not exist by virtue of the fact they wereacting for themselves.48[58] In Chorley, the work in respect of which costs were recovered may have beencarried out by employees of the defendant solicitors (although this is not entirely clearfrom the report). If so, the case might be thought to exemplify the employed lawyerrule. It is, however, usually regarded as supporting the lawyer in person exception,which is certainly consistent with the reasoning.44 Lysnar v National Bank of New Zealand Ltd (No 2) [1935] NZLR 557 (CA); Re GJ Mannix Ltd(1983) 1 NZCLC ¶95-081 (HC); McKaskell v Benseman HC Christchurch CP 381/87, 28 June1989; Jagwar Holdings Ltd v Julian (1992) 6 PRNZ 496 (HC); Re Cameron HC Dunedin A56/84,8 March 1995; Re Collier, above n 42; Pell v Booth CA259/94, 23 August 1999; Hotham v WeirCA228/05, 4 December 2006; R v Meyrick [2008] NZCA 45; Knight v Veterinary Council of NewZealand HC Wellington CIV-2007-485-1300, 19 May 2009; The Dunes Café and Bar Ltd v 623Rocks Road Ltd (in liq) HC Nelson CIV-2006-442-481, 22 February 2010; X v X (2010) 20 PRNZ803 (HC); Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400,(2010) 24 NZTC 24,500; and Low Volume Vehicle Technical Assoc Inc v Brett [2016] NZHC 467.In some of these cases, the litigant in person was a qualified lawyer who did not have a practisingcertificate and for this reason was treated as a lay litigant.45 Re Collier, above n 42, at 441; and Jagwar Holdings Ltd, above n 44, at 499.46 The London Scottish Benefit Society v Chorley (1884) 13 QBD 872 (CA). Chorley was laterendorsed in Buckland v Watts [1970] 1 QB 27 (CA) and was adopted in the early New Zealandcase, Hanna v Ranger (1912) 31 NZLR 159 (SC) at 160.47 Chorley, above n 46, at 875.48 At 876.[59] Chorley was applied by the Court of Appeal in Brownie Wills v Shrimptonwhere the successful litigant, a firm of solicitors, had been represented by an employedsolicitor at both trial and in the Court of Appeal.49 Costs in both Courts were awardedwith Blanchard J observing:50Brownie Wills was represented in the High Court and in this Court by anassociate of the firm, Mr Hair. The long-established rule is that, as anexception to the general rule denying costs to a litigant in person, a practisingbarrister and solicitor who brings or defends a proceeding in person or by apartner or employee of the firm is entitled to the same costs as when acting onbehalf of a client. So the lawyer litigant may have the same costs as if anotherlawyer had been instructed but cannot, of course, charge for consulting,instructing, or attending upon him or herself: London Scottish Benefit Societyv Chorley (1884) 13 QBD 872. In New Zealand the exception is discussed orreferred to in Hanna v Ranger (1912) 31 NZLR 159, Lysnar v National Bankof New Zealand Ltd (No 2) [1935] NZLR 557 and Re Collier (A Bankrupt)[1996] 2 NZLR 438.The High Court of Australia has cast some doubt on this exception (Cachia v[Hanes] (1994) 179 CLR 403 at p 412) but, not having been asked toreconsider the question, we do not depart from the practice of allowing coststo a solicitor/litigant.Brownie Wills exemplifies the employed lawyer rule, albeit that it too is usually seenas an application of the lawyer in person exception.[60] There is scope for argument whether the lawyer in person exception extendedto litigants in person who were barristers.51 The current view in Australia is that itdoes.52[61] The employed lawyer rule has received comparatively little analysis in thecourts.53 It was, however, directly addressed by the Court of Appeal in Henderson49 Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA).50 At 327.51 See Deliu v Hong [2013] NZHC 1119 at [3]–[8] for a brief discussion of this issue.52 Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538. See also Bechara (t/as Bechara andCo) v Bates [2016] NSWCA 294 where the Court awarded costs to a self-represented barrister, buton the basis of a concession.53 For a recent case in which it was discussed and applied, see Kasupene v Van Beurden [2017]NZHC 1106, [2017] NZAR 944. See also Malkinson v Trim [2002] EWCA Civ 1273, [2003] 1WLR 463; Khan v Lord Chancellor [2003] EWHC 12 (QB), [2003] 1 WLR 2385; and EMW Lawllp v Halborg [2017] EWCA Civ 793, [2018] 1 WLR 52.Borough Council v Auckland Regional Authority.54 There, Cooke J, with whomWoodhouse P and Richardson J agreed, noted:55In New Zealand I do not think it can be said to be improper for an employedbarrister to represent his employer. Nor did counsel for the appellant so argue.A fortiori an employed solicitor duly enrolled and with a current practisingcertificate may properly act as solicitor for his employer. Against thatbackground it appears to me that the fact that an employed practitioner hasacted for the successful party is not a sufficient reason for denying that partyan award of party and party costs: after all, the time of a salaried employeehas been occupied.On this basis, the successful party who had been represented by an employed solicitorwas awarded costs in both the High Court and Court of Appeal.56 This was despiteCooke J also commenting:57Although an employed barrister may properly represent his employer, it is aswell to stress the importance of the independent consideration of a case thatwill more often be given by a barrister or barrister-and-solicitor whoseexperience and responsibilities are not confined to representing one client.This kind of professional detachment can be of value to the client in that it islikely to result in the more effective presentation of the client's case. In turnit is of value to the Court. And of course the more important the litigation themore important it tends to become. It is to be hoped that these factors willalways be borne in mind by those concerned in deciding whether an"in-house" counsel should take the responsibility of conducting any particularlitigation for his employer.The costs rules[62] The way in which the power to award costs could be exercised was not dealtwith specifically in the Judicature Act 1908 and is likewise not specifically addressedin the Senior Courts Act 2016.58 Instead, the practice of the High Court has beenregulated by rules of court. In the paradigm case which these rules address, the partyseeking costs seeks reimbursement (usually only partial) in respect of fees paid tolawyers.59 Unsurprisingly, costs rules tend to be drafted with this paradigm in mind.54 Henderson Borough Council v Auckland Regional Authority [1984] 1 NZLR 16 (CA).55 At 23.56 At 23–24.57 At 23.58 Section 51G of the Judicature Act 1908 conferred jurisdiction on the High Court to award costs inall cases. This section was re-enacted as s 162 of the Senior Courts Act 2016 without substantivechange.59 Costs awarded cannot exceed those incurred: see Harold v Smith (1860) 5 H & N 381, 157 ER1229 (Exch).[63] The primary rule (which, as noted above, has its origin in Coke's Institutesexplaining the Statute of Gloucester) and the lawyer in person exception (which wasfirst authoritatively stated in Chorley) were not based on a particular interpretation ofrules of court as to costs. Thus the High Court of Australia applied the lawyer inperson exception in Guss v Veenhuizen (No 2)60 in the context of costs rules whichprovided for the taxation of "bills of costs and fees which are payable to barristersand solicitors".61 As the Court explained:62[This rule] provides for the method and manner of quantifying awarded costsin the ordinary case. It does not affect the long established rule of practicewhich gives certain professional costs to a litigant in person who is a solicitor.[64] On 1 January 2000 a new High Court costs regime came into effect.63 Thiswas the result of a major project carried out by the Rules Committee.64 Shortlyafterwards – in June 2001 – the Rules Committee decided to address the continuingappropriateness of the primary rule. The Committee also decided to include the lawyerin person exception in its review in September 2001. But, in April 2002, the decisionwas taken that if any changes were to be made, it was "more appropriate" for those tobe effected by legislation. The current costs rules in Subpart 1 of Part 14 of the HighCourt Rules 2016 are substantially the same as those introduced in 2000.[65] The general principles as to costs are now provided for in r 14.2:14.2 Principles applying to determination of costs(1) The following general principles apply to the determination of costs:(a) the party who fails with respect to a proceeding or aninterlocutory application should pay costs to the party whosucceeds:(b) an award of costs should reflect the complexity andsignificance of the proceeding:(c) costs should be assessed by applying the appropriate dailyrecovery rate to the time considered reasonable for each stepreasonably required in relation to the proceeding orinterlocutory application:60 Guss v Veenhuizen (No 2) (1976) 136 CLR 47.61 At 53.62 At 53.63 High Court Amendment Rules 1999.64 Robert Fisher "The new High Court costs regime" (1999) 532 LawTalk 7.(d) an appropriate daily recovery rate should normally betwo-thirds of the daily rate considered reasonable in relationto the proceeding or interlocutory application:(e) what is an appropriate daily recovery rate and what is areasonable time should not depend on the skill or experienceof the solicitor or counsel involved or on the time actuallyspent by the solicitor or counsel involved or on the costsactually incurred by the party claiming costs:(f) an award of costs should not exceed the costs incurred by theparty claiming costs:(g) so far as possible the determination of costs should bepredictable and expeditious.[66] As will be apparent, the current costs regime proceeds on a basis which islargely independent of the actual costs incurred.65 There is, of course, the limitationin r 14.2(1)(f) that "an award of costs should not exceed the costs incurred by the partyclaiming costs". The purpose of this provision (which merely restated a principle oflong standing) can hardly have been to abrogate the lawyer in person exception. Ifthis had been the purpose more explicit language would have been used.[67] The Rules Committee is also responsible for the District Court Rules but notthe Family Court Rules. The current versions of both sets of rules provide specificallyfor awards of costs to a lawyer in person. Thus r 14.17 of the District Court Rules2014 provides:14.17 Solicitor acting in personA solicitor who is a party to a proceeding and acts in person is entitledto solicitors' costs.And r 86(1) of the Family Court Rules 2002 provides:86 Lawyer acting in person(1) A lawyer who is a party to proceedings and acts in person is entitledto lawyers' costs.65 See the comments of Chambers J in Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001)15 PRNZ 155 (HC) at [33]–[34].Controversies over the primary rule and the lawyer in person exception[68] As the passages we have cited from Brownie Wills suggest, the appropriatenessof the lawyer in person exception was questioned by the High Court of Australia inCachia v Hanes – a case where the litigant in person seeking costs was not a lawyer.66In that case, Mason CJ, Brennan, Deane, Dawson and McHugh JJ upheld the primaryrule but expressed reservations about the lawyer in person exception, albeit that theythought that any review ought not to be carried out by the courts:67We mention these matters not to express any view, but merely to indicate thatthere are considerations which must be weighed before any reasonedconclusion can be reached. A court engaged in litigation between parties, evenif it were not constrained by the legislation and rules, is plainly aninappropriate body to carry out that exercise or to act upon any conclusion bylaying down the precise nature of any change required.On the other hand, Toohey and Gaudron JJ, in dissent, would have abrogated theprimary rule.68[69] In the United Kingdom (by legislation)69 and in Canada (by judicialdecisions)70 it is the primary rule which has been abandoned.[70] As far as we are aware, the employed lawyer rule has not attracted controversy.Joint Action Funding[71] In issue was an award of costs in favour of a barrister sole who had acted inperson in proceedings in the High Court in which he had been successful. The appealto the Court of Appeal was based on the contentions that the lawyer in personexception should not be maintained in light of the doubts expressed in Cachia or,alternatively, that it did not apply to barristers sole.71 The Court, however, allowed theappeal on the basis that the lawyer in person exception was inconsistent with the66 Cachia v Hanes (1994) 179 CLR 403.67 At 416.68 At 425.69 Litigants in Person (Costs and Expenses) Act 1975 (UK).70 The first case to abandon the primary rule was Skidmore v Blackmore (1995) 122 DLR (4th) 330(BCCA).71 Joint Action Funding, above n 41, at [3].current costs regime in the High Court Rules.72 It construed r 14.2(1)(f) as if therestriction applied to limit costs to those "actually incurred" and concluded that thismeant that an award of costs may not exceed the amount for which the successful partyhad been invoiced for legal services by a lawyer retained by the successful party.73 Onthis basis, because a lawyer in person has no separate legal representation for whichpayment is required there will be no costs "actually incurred", and thus his or her costswill be zero.74 Accordingly, on this approach, no award of costs can be made to alawyer acting in person. We will refer to this as the "invoice required" approach.[72] In construing r 14.2(1)(f) in this way, that is as if it contained the word"actually", the Court relied on r 14.2(1)(e) in which the expression "costs actuallyincurred" is used,75 albeit in a context in which the purpose of that rule is to providethat such costs (that is, as were actually incurred) are irrelevant for the purposes offixing costs. As such, the Court of Appeal considered that both r 14.2(1)(e) andr 14.2(1)(f) refer to "actual costs"; this notwithstanding the absence of the word"actually" in r 14.2(1)(f).76 It also referred to r 14.6(1)(b) which provides forindemnity costs (in respect of which there is a necessary focus on what the litigationactually cost the successful party).77 As will be apparent, we consider that neitherr 14.2(1)(e) nor r 14.6(1)(b) provide a sound basis for the interpretation of r 14.2(1)(f)adopted.[73] The Court of Appeal did not refer to the consideration which the RulesCommittee gave in 2001 and 2002 to both the primary rule and the lawyer in personexception and its decision not to abrogate or vary them. There was likewise noreference to the District Court Rules and the Family Court Rules and the provisionthey make for costs to be awarded to lawyers in person. As well, although the Courtreferred to Henderson Borough Council and, in particular, cited the first of the twopassages which we set out at [61],78 the Court did not explain how its invoice requiredapproach could be reconciled with the result arrived at by the Court in that case.72 At [58].73 At [41] and [43].74 At [44].75 At [33].76 At [33].77 At [31(c)].78 At [65].Indeed, no specific consideration at all was given to the employed lawyer rule whichthat case exemplifies.The approach of the Court of Appeal in the present case[74] As the Secretary's cross-appeal against the judgment of Cull J succeeded,Mr McGuire's complaint that she had not awarded him costs did not requireconsideration. The Court nonetheless made what it described as "limitedobservations" as to Joint Action Funding.79 These included the following comments:[72] The decision in Joint Action Funding may be taken as reflecting thefact that the policy justification for the lawyer-litigant exception had clearlybeen doubted. The case afforded an opportunity, for the first time, for acomprehensive consideration of the proper interpretation of the relevant rulesnow in pt 14 of the High Court Rules. The position reached as a result of theanalysis carried out was consonant with the fundamental idea, recognised forhundreds of years, that costs awards should be for professional legal costsactually incurred.[73] We note finally that counsel referred to provisions of the DistrictCourt Rules 2014 and the Family Court Rules 2002, which appear to havebeen drafted on the basis that the lawyer-litigant exception is part of the law.Rule 14.17 of the former, which has no equivalent in the High Court Rules,states that a solicitor who is a party to a proceeding and acts in person "isentitled to solicitors' costs". Rule 86 of the Family Court Rules also providesthat where a lawyer who is a party to Family Court proceedings acts in person,that person is entitled to lawyers' costs, but subject to the Court's discretionand rr 14.2–14.12 of the District Court Rules. These provisions may well benow anomalous, having regard to this Court's decisions in Joint ActionFunding and in this case. We have not heard detailed argument on that issueand reach no firm conclusion on it. But those rules do not affect the outcomeof this appeal.Commissioner of Inland Revenue v New Orleans Hotel (2011) Ltd[75] This case illustrates the application of Joint Action Funding, and in particularthe invoice required approach, to the employed lawyer rule.80[76] In issue was whether the Commissioner of Inland Revenue could recover costsin litigation where she had been represented by a solicitor employed by theCommissioner's office. The application for costs was resisted on the basis that costs79 McGuire (CA), above n 3, at [63].80 Commissioner of Inland Revenue v New Orleans Hotel (2011) Ltd [2018] NZHC 971, (2018) 28NZTC ¶23-058.had not actually been incurred in terms of the invoice required approach adopted bythe Court of Appeal in Joint Action Funding and as further explained by the Court ofAppeal in the present case. Understandably, Associate Judge Matthews applied theapproach favoured by the Court of Appeal in those cases and rejected the applicationfor costs. He found that there did not "appear to be any principled basis upon whichthe rules could bear one interpretation in one context and another in a differentcontext".81 He also considered that the effect of the decisions in Joint Action Fundingand the Court of Appeal in this case meant that he was "left with no alternative" butto not follow Henderson Borough Council, which previously represented"[l]ongstanding authority".82The arguments before us[77] None of the parties who appeared in this Court sought to uphold the totality ofthe law as it was before Joint Action Funding, that is the combination of the primaryrule, the lawyer in person exception and the employed lawyer rule.[78] Mr McGuire's primary submission on this aspect of the case was that theprimary rule should be abrogated.[79] For the Secretary, the Solicitor-General's position was that the result in JointAction Funding was right but the invoice required approach on which it was decidedwas wrong. Her primary position was that a government department ought to be ableto recover costs when represented by an employed solicitor. On her approach, thework carried out by in-house counsel has economic consequences which can beregarded as "costs incurred" for the purposes of the High Court Rules.[80] The Law Society did not seek to maintain the lawyer in person exception butdid support the employed lawyer rule. It also suggested that r 14.2 could be interpretedso as to allow awards of costs to litigants in person, albeit that its general position wasthat there was a need for legislative reform.81 At [18].82 At [4] and [19]. In Greer v Klavenes [2018] NZHC 1504, the liquidator, appearing successfullyin person was awarded costs, with Palmer J considering that New Orleans Hotel and Joint ActionFunding were not inconsistent with that award.[81] The Bar Association's position was that the primary rule should be abrogated.Our position[82] There are public policy justifications for the primary rule, albeit that they aredistinctly contestable. The practice of awarding costs against a losing partydisincentivises potential litigants and thus inhibits access to the courts. Confiningcosts to those relating to the work carried out by lawyers limits that inhibiting effect.This provides a reasonable basis for not allowing represented litigants to recover costsin respect of their own time and trouble. Mechanisms for fixing costs are calibratedto the assessment of the work which lawyers carry out, as opposed to work carried outby, or the opportunity costs of, litigants in person. These considerations are not ofoverwhelming weight and they have not prevailed in the United Kingdom and Canada.That said, they are not so inconsequential as to make the primary rule irrational.[83] Assuming the primary rule remains, there are likewise public policyjustifications for the lawyer in person exception. The work in respect of which costsare sought is of a legal character and carried out by a lawyer. It is exactly the samesort of work as would be properly the subject of an award of costs if carried out by athird-party lawyer. The mechanisms for assessing costs provided by rules of court areappropriate for the exercise. Where a lawyer in person can recover costs, the costsexposure of the other party will probably be lower than if a third-party lawyer isretained.[84] The primary countervailing consideration is that the resulting distinctionbetween lawyers and other people is invidious,83 a consideration which was verymaterial to the submissions made by the Law Society and the Bar Association. Butwhile all this too is contestable, it cannot be said that the lawyer in person exceptionis irrational.[85] Depending on the approach taken to the primary rule and the lawyer in personexception, there are a range of arguments available in relation to the employed lawyer83 This is because litigants in person will also incur opportunity costs when conducting litigationinstead of concentrating on their own business or professional affairs.rule, particularly in terms of consistency. If, as the Court in Joint Action Fundingthought, costs can only be awarded by way of reimbursement for fees actuallyinvoiced, the employed lawyer rule is logically unsustainable. If, however, theemployed lawyer rule is to continue to apply, the invoice required approach on whichJoint Action Funding is based is unsustainable. As well, as demonstrated by BrownieWills, there is a clear overlap between the lawyer in person exception and the employedlawyer rule with the result that there would be practical inconsistency if the lawyer inperson exception were to be abrogated but the employed lawyer rule retained.[86] Plainly the abrogation of the primary rule and the lawyer in person exceptionwas not within the purposes of the costs regime as introduced in 2000. And when theHigh Court Rules are read in conjunction with the District Court Rules it is also clearthat both sets of rules proceed on the basis of the continued operation of both theprimary rule and the lawyer in person exception. It would be an odd result if the abilityof a lawyer in person to recover costs might depend on whether the proceedings werein the District Court or the High Court. Given the considered, albeit later, judgementof the Rules Committee that reform in this area should be effected only by primarylegislation, this is a weighty consideration.[87] To follow on from the point just made, the way in which this issue has beenaddressed by the courts highlights difficulties with law reform by judicial decision ofthe kind that occurred in Joint Action Funding:(a) The analysis in Joint Action Funding was, at the very least, incomplete.It is far from clear that the Court would have adopted its invoicerequired approach if it had: (i) reflected on the approach adopted in theDistrict Court Rules and Family Court Rules; and (ii) addressedspecifically the inconsistency between its invoice required approachand the employed lawyer rule.(b) By its judgment in the present case, the Court of Appeal indicated anintention to follow the Joint Action Funding/invoice required approachand treated r 14.17 of the District Court Rules as anomalous. Therewas still no direct engagement with the employed lawyer rule.(c) When this appeal was argued before us, we had a broader range ofarguments than the Court of Appeal had heard but they were still farfrom complete. For instance, no-one contended for retention of thepre-Joint Action Funding status quo. As well, in the course of argumentit became apparent that there were a number of issues which had notbeen addressed by counsel in any detail before the hearing. By way ofexample, we were not offered a principled basis upon which we couldabrogate the lawyer in person exception but maintain the employedlawyer rule. As we have explained, Joint Action Funding proceeds onthe basis of an invoice required approach which, as New Orleans Hoteldemonstrates, would be as fatal to the employed lawyer rule as it wasto the lawyer in person exception.(d) Given the abrogation of the primary rule by legislation in the UnitedKingdom and by judicial decisions in Canada, there may be empiricalevidence as to consequential behavioural effects on litigants whichmight be material to whether New Zealand should follow suit. If thereis such evidence, it has not been put to us. And, in any event, if therewas such evidence, using it as the basis for a policy decision would betowards the outer edge of the proper judicial function. Far moreconsistent with our legal tradition is for such evidence to be used as thebasis for legislative action.[88] Against that background, we conclude that, if there is to be reform to the lawas it stood before Joint Action Funding, this should be effected otherwise than by thecourts. This could be done by the legislature although we think that such reform isprobably within the competence of the Rules Committee. In either case, reform wouldoccur only following appropriate consultation. In the meantime, what we havedescribed as the primary rule, the lawyer in person exception and the employed lawyerrule are to be applied. As will be apparent, we consider that Joint Action Funding waswrongly decided.Disposition[89] The appeal is dismissed. Given that a major focus of the appeal was on thecorrectness of Joint Action Funding, we think it inappropriate to make an award ofcosts.ELLEN FRANCE J[90] I write separately on the question of costs. I agree with the conclusion drawnby William Young J, namely, that if there is to be reform of the law as it stood beforethe decision in Joint Action Funding Ltd v Eichelbaum, that reform should beundertaken following a process which allows for consultation on the approach to betaken.84 However, I differ in one respect in my reasons for that conclusion as I nowoutline.[91] My starting point is that the distinction drawn in the primary rule between theavailability of a costs award to Mr McGuire, who happens to be a lawyer, and otherself-represented litigants is irrational.85 It is difficult to see why a solicitor who bringsa proceeding challenging a decision of a government department should be treateddifferently for costs purposes than, say, a chartered accountant bringing the sameproceeding.86 If opportunity costs are seen to be the rationale then, in both cases, theplaintiff would incur the opportunity cost of his or her time.[92] As to what this means, the High Court of Australia suggested in Cachia vHanes that "the logical answer may be to abandon the exception in favour of thegeneral principle rather than the other way round".87 The other possibility is, as theNew Zealand Bar Association submitted in this case, that the position should bechanged to allow costs awards to be made in respect of all unrepresented litigants.88Which of those options should be adopted is a question best dealt with by the lawreform process.84 Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249, [2018] 2 NZLR 70.85 Compare William Young J above at [84].86 See the discussion in G E Dal Pont Law of Costs (4th ed, LexisNexis Butterworths, Chatswood(NSW), 2018) at [7.31]–[7.38].87 Cachia v Hanes (1994) 179 CLR 403 at 412 per Mason CJ, Brennan, Deane, Dawson andMcHugh JJ.88 The New Zealand Law Society submitted that Part 14 of the High Court Rules 2016 could beinterpreted to allow costs awards for all unrepresented parties.[93] As I read the judgment in Joint Action Funding, the distinction the Court ofAppeal had in mind was between someone in Mr McGuire's position and the charteredaccountant in my example. The positions of the employed lawyer in a governmentdepartment or the employed solicitor acting for the firm in a debt recovery action werenot to the forefront. In that respect, I agree with the submission for the Secretary forJustice that the focus in Joint Action Funding on invoiced costs is wrong. Theemployed solicitor can recover costs under the High Court Rules 2016 on the basisthat the Rules envisage costs being recoverable where legal costs have been incurred.89The word "actually" does not require an invoice. On this basis, the removal of thelawyer-litigant exception need not prevent the employed solicitor from recoveringcosts.[94] That said, I agree with William Young J that when the legislative scheme forcosts is looked at as a whole and in light of the legislative history, it is apparent it wasnot intended that the High Court Rules would depart from the position as it was priorto the introduction of the Rules. It makes no sense, given the legislative history, totreat the District Court Rules 2014 and Family Court Rules 2002 as anomalies in thisrespect.90 Rather, the approach in those two sets of Rules supports the view thelawyer-litigant exception remains.Solicitors:Crown Law Office, Wellington for RespondentLockhart Legal, Auckland for New Zealand Bar Association as IntervenerC L Walker, Wellington for New Zealand Law Society as Intervener89 As Cooke J, with whom Woodhouse P and Richardson J agreed, noted in Henderson BoroughCouncil v Auckland Regional Authority [1984] 1 NZLR 16 (CA) at 23: "the time of a salariedemployee has been occupied".90 Compare McGuire v The Secretary for Justice [2018] NZCA 37, [2018] 3 NZLR 71 at [73] andsee William Young J above at [87](b) above.