N J GIBSON V COMPLAINTS ASSESSMENT COMMITTEE HC AK CIV 2005-404-007353

N J GIBSON V COMPLAINTS ASSESSMENT COMMITTEE HC AK CIV 2005-404-007353 17 February 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-007353 CIV 2005-404-007355BETWEEN NEVILLE JAMES GIBSON Appellant AND COMPLAINTS ASSESSMENT COMMITTEE Respondent Hearing: (On the papers) Appearances: N J Gibson in person H Wilson and M McClelland for the Respondent Judgment: 17 February 2009 at 9:30amCOSTS JUDGMENT OF WYLIE JThis judgment was delivered by Justice Wylie on 17 February 2009 at 9.30am pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date: Solicitor: Kensington Swan, P O Box 10 246, Wellington 6143 Copy to: M McClelland, P O Box 10 246, The Terrace, Wellington 6143 N J Gibson, P O Box 11 679, Ellerslie, Auckland 1542[1] I refer to my substantive judgment in relation to this matter issued on 14 November 2008. I held that the respondent is entitled to costs in relation to the appeals and I made various directions in that regard. In particular, I required the respondent to file any submissions it wished to advance in relation to costs within 10 working days from the date of the judgment. I required Mr Gibson to file any submissions in response within a further 10 days. I directed that these primary submissions were not to exceed 10 pages. [2] I have received an application for costs from the respondent. The substantive application is 7 pages long. It has attached schedules which comprise 5 further pages. [3] I have received the following from Mr Gibson: a) submissions as to costs dated 8 December 2008 running to 21 pages; b) an addendum to his submissions dated 10 December 2008 running to 13 further pages; c) a supplement to the addendum also dated 10 December 2008 running to another 4 pages, together with a 2 page attachment; d) a correction memorandum dated 11 December 2008 running to 3 pages (and referring in some instances to different paragraph numbers than are used in the documents it seeks to correct); e) a bundle of 8 authorities said to be relevant to the costs issue; f) a bundle of some 29 documents said to be in support of the submissions. The total bundle of materials is some hundreds of pages long. Mr Gibson has blatantly ignored the directions given by me in the substantive judgment. No explanation is offered; nor is any apology tendered. Moreover this is not the firsttime Mr Gibson has ignored directions by the tribunals and the Courts that have dealt with these protacted proceedings. I come back to this issue below.The respondent's application[4] The respondent claims costs in the sum of $55,315, plus GST, and disbursements in the sum of $3,639.90. [5] Counsel for the respondent advise that they are unaware of any previous cost categorisation by the Court made in the course of these proceedings. They seek costs in regard to the following: a) Mr Gibson's application for further and better discovery and leave to adduce further evidence; b) Mr Gibson's application to amend the notices of appeal; c) Mr Gibson's application for leave to appeal to the Court of Appeal in respect of the amendment to the notices of appeal; d) the substantive appeals from the Dentists Disciplinary Tribunal decisions. [6] The respondent accepts that the proceedings are appropriately classified as category 2 proceedings. It seeks that the reasonable time for the various steps taken should be determined on a band B basis in relation to the applications detailed in [6]a) and c), and on a band C basis in relation to the application detailed in [6]b) and the substantive hearing detailed in [6]d). It also seeks an uplift of costs, submitting that Mr Gibson has contributed unnecessarily to the time and expense of the proceedings by: a) failing to comply with rulings and directions of the Court; b) delaying the proceedings; andc) failing to focus on relevant issues.Mr Gibson's response[7] Mr Gibson's various submissions are repetitive and they contain much that is irrelevant. [8] In broad terms he submits the respondent's application is seeking to recover excessive costs, to compensate in part for my substantive decision setting aside the award of costs made by the Dentists Disciplinary Tribunal. He submits that costs should be calculated on a 2B basis. He argues that there is no basis for the application of category 2C, or for an uplift of costs under what was r 48C (now r 14.6). [9] In relation to the applications detailed in [6]a) and b), Mr Gibson submits there is no proper basis for the recovery of costs by the respondent on those applications. He submits first that the applications were necessary as a result of omissions by the respondent to fully disclose all relevant documents, and secondly that he was the successful party in relation to those applications. He refers to the decision given by Randerson J on 15 September 2006, and to the further decision give by Cooper J on 15 December 2006. He submits that the application for costs in respect of those two applications should be rejected. [10] In relation to the costs sought in [6]c) above, Mr Gibson submits that his appeal to the Court of Appeal was on a narrow and limited element of Cooper J's decision, that the Court of Appeal sent the matter back to this Court to resolve, and that Williams J ultimately resolved it in his favour in a decision dated 17 April 2008. He submits that it would be improper for the respondent to claim costs against him in regard to this application. [11] In relation to the substantive appeal, Mr Gibson sets out in some detail the principles he submits are applicable to awards of costs, emphasising that costs are in the discretion of the Court, and that costs should be exclusive of GST. He denies any liability for increased costs under what was r 48C (now r 14.6), and submits thatcosts should be reduced under what was r 48D (now r 14.7). He then deals with the daily recovery rates he says apply, and with disbursements, and makes detailed submissions on a number of the elements contained in the schedules attached to the respondent's submissions. He submits that the respondent's claim for costs is not appropriate in all the circumstances, and that it would be unjust and unfair to award costs against him. [12] In his addendum, Mr Gibson notes that Winkelmann J in a Minute dated 22 February 2006 recorded that it had been agreed that costs should be categorised for the purpose of the proceedings on a 2B basis. He goes on to repeat his previous submissions that grounds exist for a reduction of costs under r 14.7. He makes further detailed submissions in regard to the applications detailed in [6]a), b) and c). He makes a cross claim for costs in relation to that part of the substantive judgment where he succeeded. He acknowledges that he is not entitled to claim legal costs himself, but nevertheless seeks to recover expenses and disbursements he says he has incurred. He claims some $8,900 in that regard. He then submits that, in all circumstances, it is fair and just that costs should lie where they fall, and that there should be no costs awarded to either the respondent or the appellant. [13] In the supplement to his addendum, he disputes whether or not there has been any prejudice to the respondent in relation to the amended notices of appeal application, denies any basis for a claim by two counsel, repeats that Winkelmann J had noted that the costs should be fixed on a 2B basis, and asserts that there was no voluminous documentation or onerous matters to be attended to at the substantive hearing. He also, quite improperly, annexes a letter from an ear, nose and throat surgeon querying an unrelated decision of the Dental Council. The letter is inappropriate not only because of the way it has been introduced, but also because it has no bearing on the costs application. The matters raised in it and the decision it addresses were not in issue in the substantive proceedings.Analysis[14] Since the parties filed their respective submissions, the new High Court Rules have come into force. Part 14 of those rules deals with costs. While there are minorchanges in wording in the new rules, the substance of the new rules is unchanged from that which was formerly contained in rr 46 to 59 of the old High Court Rules. [15] It is a trite observation that all matters in relation to costs are at the discretion of the Court – r 14.1. Mr Gibson seems to think that this permits the Court to depart pretty much at whim from the rules relating to costs. He is in error. The various cost rules qualify the discretion, and generally it will be exercisable only in situations not contemplated by specific rules, or which are not fairly recognised by them: seeGlaister v Amalgamated Dairies Limited [2004] 2 NZLR 606. [16] The primary principle is that costs follow the event. The party who fails with respect to the proceeding should pay costs to the party who succeeds – r 14.2(a). [17] Mr Gibson submits that he was the successful party in regard to the application detailed in [6]a). He has referred to the judgment of Randerson J given on 15 September 2006. [18] Mr Gibson has significantly overstated the position. a) In his original notices of appeal, Mr Gibson did not challenge the reasonableness of the fees charged by the solicitors and counsel upon which the costs order made by the Tribunal was based. He did belatedly file amended notices of appeal challenging those fees, but he did not seek leave of the Court to do so. b) Randerson J heard related applications whereby Mr Gibson sought to adduce further evidence on appeal, and further discovery, namely the bills of costs which supported the schedule of costs upon which the Tribunal had based its costs decision. c) Mr McClelland appearing for the respondent advised that it was willing to provide the bills of costs sought, narrations supporting those bills, particulars of the hours spent over the period covered by eachbill of costs, the rates normally charged, and the rates actually charged for each bill. d) Randerson J made orders accordingly – effectively by consent. e) The application by Mr Gibson for leave to adduce further evidence on appeal was not opposed by the respondent, and leave was granted accordingly. [19] While technically Mr Gibson was the successful party, the respondent either consented to or did not oppose the orders which were sought. The position was obfuscated by Mr Gibson's failure to first seek leave to amend his notices of appeal. It cannot in my view responsibly be argued that the applications were necessary as a result of omissions by the respondent to fully disclose all relevant documents. The original notices of appeal did not challenge the costs orders. The documents sought were not relevant to the issues raised. In the circumstances, it seems to me that it is not helpful to focus on the fact that technically Mr Gibson succeeded. The applications should have been unnecessary. [20] In the circumstances, it seems to me appropriate that there should be an order for costs in relation to the application detailed in [6]a) in favour of the respondent. [21] I now turn to the applications detailed in [6]b) and c). [22] Again Mr Gibson asserts that he was the successful party. Again that overstates the position. I note as follows from Cooper J's decision: a) The affidavit which Mr Gibson was directed to file by Randerson J was not filed. b) The fixture for the substantive appeal had to be adjourned at Mr Gibson's request.c) Mr Gibson failed to comply with Randerson J's direction that he file and serve an application for leave to amend the original notice of appeal within seven days. d) Mr Gibson filed two further documents, both headed "Supplementary amended notice of appeal" seeking to appeal a decision made by the Tribunal not to grant him an annual practising certificate. There was no jurisdictional basis for those appeals, and they were struck out. e) It was common ground that many of the amendments proposed by Mr Gibson were not significant and they were opposed by the respondent only on the basis that they were unnecessary, being more in the nature of submissions than proper pleadings. f) Mr Gibson was successful in part. Some of the amendments were allowed. Others were not. g) Mr Gibson was directed to file a further amended notice of appeal in the form authorised by the Court. [23] Rather than take the opportunity afforded to him by Cooper J, Mr Gibson sought to appeal to the Court of Appeal direct. William Young P issued a Minute on 2 July 2007 querying whether the Court of Appeal had jurisdiction to entertain the appeal. The matter then came back before Williams J in this Court, and he held on 17 April 2008 that the Court had jurisdiction to grant leave to appeal, but that leave should be refused. Williams J reserved costs so that they could be dealt with on the substantive determination of the appeal; he expressly noted that the respondent should be entitled to an allowance of costs for the application. The respondent was the Complaints Assessment Committee. [24] In the event, and as recorded in my substantive decision, Mr Gibson's application for leave to file the amended notice of appeal came to nothing, because inexplicably he did not file the amended notices. The substantive appeal proceeded on the basis of the original notices. The hearing before Cooper J, the application forleave to appeal to the Court of Appeal, and the hearing before Williams J, became an exercise in futility. In my view it is perfectly appropriate that the respondent should be entitled to costs in regard to both matters detailed in [6]b) and c). [25] I now turn to the substantive appeal. Mr Gibson's appeals were unsuccessful in large part. He did however succeed in setting aside part of the Dentists Disciplinary Tribunal's award of costs. He succeeded in that regard as a result of the application of s 40(2) of the Legal Services Act 2000. I have set out the circumstances in [123] and following of my substantive decision. Notwithstanding Mr Gibson's submissions, his limited success in this regard does not justify any award of costs in his favour; nor does it justify departing from the primary principle outlined above. In January 2007 the Legal Services Agency advised Mr Gibson that he had been awarded legal aid covering that part of the Dentists Disciplinary Tribunal proceedings held in 2004. Mr Gibson did not then seek to clarify the position with the Tribunal, the respondent or its counsel. He had raised the matter in his notices of appeal but there was nothing in the documents filed by him confirming the grant of legal aid. It was only when I insisted at the hearing that he produce evidence to support the submissions he was making in Court, that the letter was produced, and even then very late in the day. There can be no criticism of the respondent, nor of its counsel, for their approach to the matter. They quite properly prepared for the hearing on the assumption that there has been no grant of legal aid. As soon as proof of the grant was produced, counsel for the respondent promptly and responsibly accepted that the Tribunal's costs order had to be set aside. Mr Gibson could and should have clarified the position at a much earlier stage and saved the Court's time and counsels' preparation and effort. There was no explanation for the delay by Mr Gibson, and frankly it is inexplicable. In all other respects the respondent was the successful party in the substantive proceedings and in my clear view it is entitled to costs. [26] I now turn to the quantum of costs payable. [27] An award of costs should of course reflect the complexity and significance of the proceeding – r 14.2(b). The categorisation of proceedings is dealt with in r 14.3,and the appropriate daily recovery rates and the determination of reasonable time are dealt with in rr 14.4 and 14.5. [28] Mr Gibson is correct that Winkelmann J in a Minute dated 22 February 2006 recorded that counsel had agreed that the appeals were appropriately categorised as category 2B proceedings. [29] It is open to the Court re-categorise the proceeding under r 14.3(2). The respondent does not suggest that I should do so, and in any event, I do not consider that there any "special reasons" which would justify that course. [30] Having considered the file in its totality, I am satisfied that the categorisation recorded by Winkelmann J is appropriate for all of the applications noted in [6]a) to c), and in relation to the substantive appeal noted in [6]d). Shorn of irrelevancies, the case was a relatively standard case involving matters of average complexity requiring counsel of average skill and experience. The normal time allowances are in my view reasonable. I therefore reject the respondent's application that the matters noted in [6]b) and d) should be categorised on a 2C basis. [31] The appellant seeks costs in respect of second counsel for the matters detailed in [6]b) and d). Mr McClelland appeared before the Tribunal. In my view it is appropriate to allow costs for second counsel at the rate set in Schedule 3 in relation to the appearance at the hearing. Despite Mr Gibson's assertions to the contrary, he put voluminous materials before the Court at the substantive hearing. The documents were in no particularly helpful or logical order. The relevance of some was questionable. In the event Mr Gibson did not refer to the majority of them. There was a wealth of material to be sorted, and analysed, and in my view second counsel was necessary at the hearing given the materials put before the Court, and the width and ambulatory nature of the arguments he was seeking to advance. [32] I am not persuaded that second counsel was necessary in relation to the application detailed in [6]b). While muddled, it was much more straightforward and I do not consider that second counsel was required.[33] I have checked the schedule attached to the respondent's submission seeking costs. I have also considered Mr Gibson's comments in relation to the same. I am satisfied from my inspection of the Court files that each of the steps detailed in the schedule was taken and that it is appropriate to award costs in respect of them. [34] The respondent seeks increased costs. [35] I do not consider that there is any proper basis for increased costs under r 14.6(3)(a). However in my view there is ample justification for increased costs under r 14.6(3)(b). Mr Gibson has on numerous occasions failed to comply with the High Court Rules. I acknowledge that he is a lay litigant, and of itself his failure to comply with the rules would not have persuaded me to award increased costs. However he has failed on numerous occasions to comply with clear directions from the Court. There can be no excuse for this. He has taken steps which should not have been required. He unnecessarily took up valuable Court time pursuing will-of- the-wisps which in some cases he has not advanced, even when he has obtained orders in his favour. His arguments have often been tendentious or misconceived. He has frequently focused on irrelevancies. In my view Mr Gibson's conduct of these proceedings has dragged out their final resolution quite unnecessarily. This has resulted in substantially increased costs for the respondent. An award of increased costs in the sum of $10,000 is in my view appropriate. [36] There is no basis for any reduction in the costs otherwise payable to the respondent under r 14.7. Mr Gibson's submissions in that regard are rejected.Conclusion[37] The respondent is entitled to costs of $34,400 in relation to the applications and substantive hearing detailed in [6] of this judgment. I have calculated this sum by reference to the items listed in the schedule to the appellant's submissions, but allowing for the matters covered in this judgment. While I should not be seen as encouraging it, if there is any difficulty with my calculation, leave is reserved to the parties to seek further directions from the Court.[38] In addition to the costs so calculated, the respondent is entitled to increased costs in the sum of $10,000. [39] The respondent is also entitled to its reasonable costs and disbursements (GST exclusive). The respondent has annexed to his memorandum seeking costs a schedule of disbursements in the total sum of $3,639.92. There is no evidence before me to support the same, and it is not clear whether GST has or has not been claimed. Accordingly I direct that the respondent's costs and disbursements are to be fixed by the Registrar in the first instance. Once again, if there is any difficulty in finalising the same, then the issue is to be referred to me. Wylie J