P v NATIONAL STANDARDS COMMITTEE OF THE NZLS [2020] NZHC 678

P v NATIONAL STANDARDS COMMITTEE OF THE NZLS [2020] NZHC 678 [2 April 2020]NOTE: ORDER PROHIBITING PUBLICATION OF NAMES ORIDENTIFYING PARTICULARS OF THE APPLICANT, LAW FIRM ANDAFFECTED PERSON.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2484[2020] NZHC 678UNDER THE The Judicial Review Procedure Act 2016, theNew Zealand Bill of Rights Act 1990 andRule 8.20 and Part 30 of the High CourtRules 2016IN THE MATTER Of an application for pre-commencementdiscoveryBETWEEN PApplicantAND NATIONAL STANDARDS COMMITTEEOF THE NEW ZEALAND LAW SOCIETYRespondentHearing: 27 February 2020Appearances: R S Reed QC & J L Libbey for ApplicantC P Paterson for RespondentJudgment: 2 April 2020Reissued: 16 April 2020JUDGMENT OF PAUL DAVISON JThis judgment was recalled and reissued me on 16 April 2020 at 2:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Cook Morris Quinn, AucklandCrown Solicitor, AucklandIntroduction[1] The applicant, a legal practitioner, applies for an award of indemnity costs tobe made against the respondent, the National Standards Committee of the NewZealand Law Society (the Committee), in connection with his application for pre-commencement discovery (the discovery application) of documentation theCommittee holds regarding a determination made by the Committee at a meeting itheld on 21 February 2019. The Committee initially opposed the discovery application,but shortly prior to the hearing withdrew its opposition and provided the applicant withthe requested documents. The applicant now seeks an award of indemnity costs sayingthat the respondent: pursued hopeless opposition to the application; had not acted inaccordance with its duty of candour; and had opposed the application for pre-commencement discovery when it knew that the applicant was entitled to thedocumentation as it recorded a determination that had been made by the Committeeregarding the outcome of its own motion investigation into the applicant's conduct.[2] The Committee opposes the applicant being awarded indemnity costs, and saysthat scale 2B costs is the appropriate basis for the calculation of the applicant's costs.Background[3] In May 2018, the law firm of which the applicant was formerly a partner,forwarded a written report to the New Zealand Law Society (NZLS) regarding hisconduct on the evening of the firm's social function in December 2016. NZLS referredthe matter to the Committee which decided to commence an own motion investigationinto the matter pursuant to s 130(c) of the Lawyers and Conveyancers Act 2006 (theAct). On 14 January 2019 the Committee notified the applicant of its decision toconduct an own motion investigation into the matter and advised that it had scheduleda hearing to take place on 21 February 2019 to be conducted on the papers. In itscovering letter the Committee informed the applicant:You will be advised of the outcome by written Notice of Determination, whichmay take some weeks to be prepared and approved by the StandardsCommittee.[4] On 15 February 2019 the applicant filed written submissions with theCommittee. In an email on 20 February 2019, Mr Matthew Fogarty, who is theCommittee Secretary and legal standards solicitor at the Lawyers Complaints Serviceof NZLS, acknowledged receipt of the applicant's submissions and advised:The Standards Committee will hold its hearing on the papers tomorrow.On behalf of the Standards Committee, I will advise you in due course inwriting of the outcome of the hearing. It may take a few weeks for the writtendetermination to be issued.[5] On 21 February 2019 the Committee proceeded with a hearing on the papers.The hearing was attended by Mr Fogarty. During the hearing Mr Fogarty madehandwritten notes in which he recorded the Committee's views regarding theapplicant's conduct and whether it amounted to misconduct as defined by the Act.Mr Fogarty's note concluded as follows:Prima facie misconduct but exercise [statutory] discretion not to prosecute.S12(b) + S12(c)ORDERS1). Censure2). $10K fine (1 victim, 2 no naming)3). Costs: $1,5004). [Anonymised] publication.[6] Typewritten minutes of the meeting were subsequently prepared. The minutesrecord the attendance of the members of the Committee and of Mr Fogarty asCommittee Secretary. The typewritten minutes also record that two members of theCommittee recused themselves at the commencement of the hearing regarding theapplicant, and thereafter did not participate further. The typewritten minutes state:NSC 1 determined:• Unsatisfactory conduct pursuant to sections 12(b), 12(c) and 152(2)(b) ofthe Act.• $10,000 fine.• $1,500 costs.• Censure.• Anonymised publication (section 142(2) of the Act).[7] In addition to the details of what the Committee had "determined", thetypewritten minutes also record the identities of the members of the Committee whoproposed and seconded the determination, and that the proposed determination had theagreement of all other Committee members. This is recorded in the minutes in thefollowing format:1(XX/YY/all)[8] Having not received notification of the outcome of the hearing held on 21February 2019, on 19 March 2019 the applicant's counsel Ms Reed QC wrote to MrFogarty asking to be advised when the Committee's decision was expected to bereleased. Mr Fogarty replied the same day. He said:Realistically, my best guess estimate at this stage is that it might be anothermonth or so before the Standards Committee is in a position to delivers (sic)its determination.The delay is regretted, and I am conscious your client no doubt wants to knowthe outcome as soon as possible (which is understandable), but the StandardsCommittee has a significant case load and so this is of course not the onlydetermination that needs to be drafted.Please let me know if your client considers there is any pressing need for thedetermination to be delivered earlier than indicated above.If I am in a position to do so, I will provide a revised estimate later on.[9] Ms Reed wrote back to Mr Fogarty on 19 March 2019 requesting that she beadvised of the outcome of the determination and to receive reasons for thedetermination within a reasonable period. Counsel wrote:I do trust that there will not be significant delays given the matter has alreadybeen heard and determined. I would be grateful if you [could] keep me up todate on any delays and in the circumstances they will be minimised.1 The "XX/YY" is used in this judgment to anonymise the names of the Committee members.[10] On 18 April 2019 Mr Fogarty wrote to Ms Reed. He said that regrettably it hadnot been possible for the Committee to deliver its written determination prior theEaster holiday break. He advised that his best estimate was that the determinationwould be delivered during the week commencing 6 May 2019.[11] On 23 April 2019, Ms Reed wrote again to Mr Fogarty. She said:I note in your email there is no reason recorded for the continuing delays inthe release of the Committee's decision which it reached in February. Myclient is entitled to be advised of the decision as soon as possible after it ismade.[12] On 24 April 2019 Mr Wayne Anderson, who is a Senior Legal Administratorat NZLS, wrote to Ms Reed on behalf of Mr Fogarty. Mr Anderson said:Thank you for your email. [Mr Fogarty] is on leave this week and asked meto respond on his behalf.This matter remains with the Standards Committee because the Committeeneeds to discuss and approve the detailed reasoning of any written decisionand/or determination before it can be issued. Therefore, it takes some timeafter the hearing (depending on how many other decisions/determinations theCommittee is dealing with) to get the written decision/determination finalised.Once the Committee confirms its determination in this case we will forwardthis to you on behalf of [the applicant] as soon as possible.[Mr Fogarty] is hoping to have the Committee's determination with youduring the week commencing 6 May 2019.[13] On 1 May 2019 Mr Fogarty wrote to the applicant's former firm. He said:The Standards Committee determination is in the process of being drafted. Iexpect it will issue within the next week or two. I also expect a copy to beprovided to [the law firm] in accordance with sections 153(4)(b), 193 and195(2)(b) of the Lawyers and Conveyancers Act 2006.[14] Mr Fogarty went on to request a copy of an email sent by the applicantcontaining an apology for the conduct which had resulted in the own motioninvestigation. Later that same evening, Mr Fogarty sent an email to Ms Reed in whichhe said:I don't have much to add to my colleague [Mr Anderson's] email below, butnote that the submissions on behalf of [the applicant] raised variousconsidered jurisdictional matters (as well as other matters) which require, inturn, a considered response by the Standards Committee. The StandardsCommittee's written determination will record not only its findings, but alsothe reasons for its findings. This is not dissimilar to a reserved court judgment.I appreciate your client's position and will deliver the determination on behalfof the Standards Committee as soon as I am in a position to do so. As notedin [Mr Anderson's] email below, my current expectation is that I will be in aposition to issue the Standards Committee's determination during the weekcommencing 6 May. Ultimately, however, I am in the hands of the StandardsCommittee. The members will be advised of your client's position regardingtimeframes.[15] On 9 May 2019 Mr Fogarty forwarded a further email to Ms Reed. He said:Dear [Ms Reed]I refer to our email correspondence below.The Standards Committee will be considering this matter further at its meetingtomorrow, 10 May. Effectively, this is a continuation of its hearing on thepapers which commenced at its previous meeting.In relation to your client's intended email of apology to [redacted], we havereceived the attached comments from [name of law firm]. At this stage, theStandards Committee has not sought a further response from your client, andI'm not sure much turns on the issue in any event, but your client is welcometo comment further if he wishes to do so.Please contact me if you wish to discuss further, otherwise I will be in touchon behalf of the Standards Committee as soon as I am in a position to do so.We thank you and your client for your patience.[16] Ms Reed responded immediately to Mr Fogarty's email. In her email sent on9 May she said:Dear [Mr Fogarty],I am astounded and concerned that your previous emails to me that thedecision had been considered and made and would be delivered and issued (1May email) appear to be incorrect as you will still (sic) investigating matterswith [the applicant's former firm] that you did not disclose to me or allow myclient to comment on. Even more concerning is that your 1 May email wassent to me after you had already made further inquiries of [the applicant'sformer firm] and without advising me of such inquiries. Your email was sentto [the applicant's former firm] just over an hour before you advised me thedecision was to be issued shortly.[17] In her email Ms Reed complained that she would not be able to obtaininstructions from the applicant overnight and be in a position to present his responseto the new information to the Committee at its meeting the following day. She said:I consider this raises an issue of natural justice together with other issues suchas whether or not the Committee's determination was made and if so whetherit can be recalled and reconsidered at another meeting... I submit that theCommittee cannot deal with the matter tomorrow in the absence of my client'sresponse relying on the fundamental principles of natural justice. Pleaseconfirm by return that the Committee will not consider the matter tomorrow.[18] Mr Fogarty responded by email forwarded to Ms Reed later on the evening of9 May. He said:Dear [Ms Reed]Thank you for your email.A standards committee's determination is not formally made until such timeas written confirmation of the same (typically in the form of a written Noticeof Determination which is signed for and on behalf of the standardscommittee, typically by the convenor) is delivered to the parties to any givencomplaint or own motion investigation matter. No such written determinationhas been issued.As such, if your client wishes to respond to the email from [the applicant'sformer firm] (which we advised in our email below that he was welcome todo), then he will have a reasonable opportunity to do so before the StandardsCommittee delivers its written determination.There is no expectation or requirement for your client to respond overnight.Likewise, there is no reason why the Standards Committee cannot considerthis matter further at its meeting of tomorrow. As you know, subject tosections 142(1) and 142(3) of the LCA, a standards committee may regulateits procedure in such manner as it thinks fit. We also refer your client tosection 153(8) of the LCA.If you consider the Standards Committee is proceeding otherwise than inaccordance with the rules of natural justice, please specify in what manneryour client considers this to be the case. As one would expect, neither theStandards Committee nor the Lawyers Complaints Service has any intentionto act in a manner that is contrary to the rules of natural justice .[19] On 20 May 2019 Ms Reed forwarded a written statement made by the applicantto Mr Fogarty as the secretary to the Committee. Mr Fogarty acknowledged receiptof the statement in an email dated 21 May 2019. He said:I confirm receipt of [the applicant's] statement – thank you.The Standards Committee will continue its hearing on the papers on Monday27 May, at which time it will consider [the applicant's] statement. TheStandards Committee will then proceed to finalise its determination, whichwill then be delivered in writing to you in the usual way.[20] On 27 May 2019 Mr Fogarty wrote to the applicant enclosing the Committee'sNotice of Determination (the Notice). The Notice is also dated 27 May 2019 and issigned by the Convenor of the Committee. The Notice contains:(a) A detailed background of the circumstances which led to theapplicant's former firm referring the matter to NZLS and to theCommittee initiating its own motion investigation into thematter.(b) An outline summary of the Committee's process in conductingthe investigation and decision making.(c) A section setting out the Committee's legal jurisdiction in whichit addresses the submissions made on behalf of the applicantregarding the issue of whether the applicant's conduct hadoccurred at a time when he was providing regulated services.(d) The Committee's determination, being to refer the matter to theDisciplinary Tribunal for consideration pursuant to s 152(2)(a)of the Act.(e) Notice that the determination is to remain confidential betweenthe parties.(f) Notice to the applicant that within 30 days he could apply to theLegal Complaints Review Officer (LCRO) for a review of theCommittee's determination.[21] In the section of the Notice in which the process followed by the Committeewas summarised it said:15. The Standards Committee deliberated over the course of three meetings,held on 21 February 2019, 10 May 2019, and (by telephone conference) on 27May 2019. At the meeting on 21 February 2019 a provisional decision wasmade, subject to considering and approving written reasons for that decision.At the meeting on 10 May 2019 the Standards Committee considered draftreasons for its provisional decision on 21 February 2019 and asked foralternative draft reasons to be prepared for further consideration. At itsmeeting on 27 May 2019, the Standards Committee resolved not to finalisethe preliminary decision made on 21 February 2019 and it approved thedecision set out in this Notice of Determination.16. The Standards Committee gave consideration as to whether what it haddecided at its 21 February 2019 meeting constituted a determination withinthe meaning of section 152(1) of the Act or whether it was free to continue thehearing and reach a different decision, with acceptable reasoning. In doingso, it considered an email from counsel for [the applicant] dated 9 May 2019.The Standards Committee concluded that it had not made a final determinationon 21 February 2019, that the hearing had not concluded, and that it was freeto continue its deliberation and reach a different decision for the followingreasons:(a) the decision that was reached at its meeting on 21 February2019 was intended to be provisional and subject to approvalof acceptable reasons;(b) no written determination had been finalised by the StandardsCommittee and delivered to the parties;(c) the Standards Committee is not functus officio because it hadnot completed its statutory function which includes thecommunication of a reasoned decision; and(d) the communication to [the applicant] of this written Notice ofDetermination will represent the Standard Committee'sdetermination.[22] Upon receiving the Notice of Determination the applicant and his counselnoted that in the course of reaching its decision the Committee had given considerationto whether it was able to reach a different final determination than the decision it hadmade at the hearing held on 21 February 2019. The applicant also noted that in afootnote to the Notice, the Committee had referred to the composition of the StandardsCommittee at its respective meetings, inferring that the composition of the Committeehad changed over the course of the meetings.[23] The applicant noted that he had not been given an opportunity to makesubmissions to the Committee on the issue of whether the Committee could make adifferent decision when sitting as a differently constituted committee, or whether adifferently constituted committee could consider whether a previous committee hadmade a decision or not.[24] Moreover, prior to receiving the Notice, the applicant had understood that theCommittee had already made a determination at the 21 February 2019 meeting. Theapplicant considered that in the course of its correspondence, the Committee hadclearly indicated that a determination had been made at the hearing on 21 February2019, but it had not yet been written up as a notice of determination with the reasonsfor the determination set out. The applicant considered that having made adetermination on 21 February 2019, the Committee had no jurisdiction to thereafterpurport to make a further and different determination.[25] The applicant was also concerned that the Committee had failed to complywith the requirements of natural justice in its process and consideration of the matter,and considered making an application for judicial review of the Committee'sdetermination. However before commencing judicial review proceedings theapplicant decided to first seek further information regarding what the Committee haddecided at the hearing held on 21 February 2019.[26] The applicant's solicitors accordingly requested the Committee to providedisclosure of all relevant documents it held in relation to the own motion investigation.The Committee co-operated and provided the applicant's counsel with a scheduleentitled: "Register of documents disclosed and withheld in respect of [Own MotionInvestigation]" listing a total of 148 documents. Item 67 of the schedule lists threedocuments relevant to the hearing on 21 February 2019. The three documents referredto are: the Committee's agenda, Mr Fogarty's handwritten notes, and the typewrittenminutes from the respondent's 21 February 2019 meeting. The schedule states thereason why two of the documents were withheld from disclosure:Disclosed agenda item. Minutes withheld where they relate to unrelatedmatters and in respect of this matter on the basis of deliberative privilege.[27] On 11 November 2019 the applicant made an application for an order for pre-commencement discovery against the Committee, specifically seeking an orderdirecting the Committee to disclose the two documents it had withheld in relation toits hearing on 21 February 2019. In the same application, the applicant also soughtan order for the suppression of his name and identifying particulars.2 The applicationwas supported by an affidavit sworn by the applicant. The grounds of the applicationfor pre-commencement discovery stated that the documents sought to be discoveredrelated solely to the issue of whether a determination was made by the Committee on21 February 2019. The application stated:Clearly the minutes of the 21 February 2019 meeting directly recorded anydecisions made on that day and were subsequently verified by the members ofthe Committee when the formal minutes of the meeting were later circulated.[28] Together with the pre-commencement discovery application, the applicantfiled a draft statement of claim for judicial review in which he alleged that theCommittee's decision or decisions made on 27 May 2019 and set out in the Notice ofDetermination are invalid, as the Committee had already made a determination of theown motion investigation on 21 February 2019, and the Committee's purportedreclassification of its determination of 21 February 2019 as a "provisional decision",and determination of 27 May 2019 were made without jurisdiction. The draftstatement of claim further states that the applicant is unable to plead further causes ofaction with sufficient particularity until pre-commencement discovery has beenobtained, however the applicant anticipates pre-commencement discovery maydisclose causes of action alleging: abuse of process and or procedural impropriety;taking improper or irrelevant considerations into account; error of law and fact; actingunreasonably; and lack of jurisdiction.[29] On 6 December 2019, the Committee filed a notice of opposition to the pre-commencement discovery application. The grounds upon which the Committeeopposed the making of an order for pre-commencement discovery were:(a) The documents in respect of which pre-commencementdiscovery is sought (being portions of the Minutes of a meetingof the Committee on 21 February 2019) are subject todeliberative privilege held by the respondent.2 The application for suppression of the applicant's name was heard on 28 November 2019 and on3 December 2019, Palmer J made orders for suppression of the name of the person affected by theapplicant's conduct, the identity of the applicant's former firm, details of the incident and theapplicant's name, nature of practice and other identifying information. P v The National StandardsCommittee of the New Zealand Law Society [2019] NZHC 3159.(b) The Committee has not waived the privilege.(c) There are no special circumstances whereby the deliberativeprivilege is outweighed by any competing interest.(d) It is not impossible or impracticable for the applicant toformulate his claim without refence to the documents sought.(e) The order sought is not necessary.[30] The Committee supported its notice of opposition with an affidavit sworn byMr Fogarty. In his affidavit Mr Fogarty described the Committee's decision-makingprocess, and set out the progress of the applicant's matter through the Committee'sinvestigative and deliberative process. Mr Fogarty said:I rely on and adopt as my evidence the correspondence I sent on this matter,annexed to this affidavit and the affidavit of [the applicant]. I do notunderstand the Committee's decision making process in this case to havedeparted from the general practice I have outlined at paragraphs 4-20 of thisaffidavit. My emails to parties at the time were intended to reflect that. Thatis consistent with my understanding (both then and now) that a Committee hasnot made a determination until the written notice of determination (stating theCommittee's determination and the reasons for it) has been signed and issuedto the parties in accordance with section 158 of the Lawyers and ConveyancersAct 2006. I believe my emails reflect that, although I accept it will be a matterthe Court will be asked to decide.[31] On 28 November 2019, Palmer J made a timetable order which required theapplicant's submissions to be filed by 30 January 2020, and the Committee'ssubmissions to be filed by 13 February 2020. The application for pre-commencementdiscovery was allocated a half-day hearing on 27 February 2020.[32] On 30 January 2020, the applicant made an application seeking an ordergranting him leave to cross-examine Mr Fogarty on his affidavit at the hearing. TheCommittee did not file a notice of opposition to that application, but indicated that theapplication would be opposed. The Registrar set the application for leave to cross-examine down for hearing on 12 February 2020, however following the parties filingof a joint memorandum on 11 February 2020, Downs J made an order by consent thatthe application for leave to cross-examine Mr Fogarty was to be determined on 27February by the Judge hearing the pre-commencement discovery application.[33] On 13 February 2020, the Committee waived the deliberative privilege it hadclaimed until then, and voluntarily provided the applicant with the documents whichhad been sought in the pre-commencement discovery application. On 17 February theparties filed another joint memorandum to advise the Court that they agreed that therewas no longer any need for the application for pre-commencement discovery or theapplication for leave to cross-examine Mr Fogarty to be determined by the Court. Intheir joint memorandum the parties said that they would endeavour to agree any issueas to costs, but nevertheless requested that the 27 February 2020 hearing date beretained in case an oral hearing was required to determine costs.[34] On 17 February 2020 Lang J issued a Minute directing that any memorandumseeking costs, together with supporting submissions, was to be filed by 20 February2020. On 20 February 2020 the applicant filed an application seeking an award ofindemnity costs. The application is opposed by the Committee.SubmissionsSubmissions for the applicant[35] Ms Reed QC, for the applicant, submits that indemnity costs should be awardedto the applicant for two reasons. Firstly because the Committee has pursued hopelessopposition to the applicant's applications. Secondly because by withholding two ofthe 21 February documents (being Mr Fogarty's handwritten notes and the typewrittenminutes), the Committee had acted in breach of its duty of candour owed to the Court.The applicant says that the Committee's opposition to the pre-commencementdiscovery application was hopeless and always destined to fail because:(a) The documents sought by the applicant on their face recordedthat a determination of unsatisfactory conduct had been madetogether with further orders relating to a fine, costs, a censureand anonymisation, being the kind of determinations that theapplicant anticipated would be recorded in them; and(b) The deliberative privilege claimed by the Committee would nothave been sustained upon inspection of the two documents bythe Court, inspection of which the Committee had agreed.(c) The Committee had not acted in accordance with its duty ofcandour when it opposed the application for pre-commencement discovery and improperly claimed deliberativeprivilege when it knew that the minutes of its meeting of 21February 2019 did not support that assertion, and in factcontradicted it.(d) The Committee failed to provide the documents to the applicantand the Court notwithstanding that they comprised the verydocuments at the heart of the proposed judicial reviewproceedings, and notwithstanding that the documents werefundamental to the Court's consideration and determination ofthe intended application for judicial review.(e) The Committee filed an affidavit sworn by Mr Fogarty inopposition to the pre-commencement discovery application, thecontents of which implied that a determination had not beenmade at its meeting on 21 February 2019, when Mr Fogarty hadattended the meeting and had subsequently prepared minutes ofthe meeting which recorded that a determination had been madetogether with orders consequent upon that determination. Thesuggestion made in the affidavit being inconsistent with thecontents of the contemporaneous documents.(f) The Committee opposed the applications for pre-commencement discovery and for leave to cross-examine MrFogarty when it knew that that the applicant was entitled toapply to review its purported determination of 27 May 2019,and had tried to justify reaching its different determination madeon 27 May 2019 by recording in its 27 May determination thatthe 21 February 2019 determination was only a provisionaldecision and was not a final determination, when the respondentknew that the 21 February decision was recorded and being a"determination".[36] Ms Reed says that the applicant is entitled to costs following the Committeebelatedly and voluntarily providing the documents sought by the applicant. Ms Reednotes that the applicant has not yet filed any judicial review proceedings, and says thatit is quite possible that none will be filed. She accordingly submits that rather than thedetermination of costs being deferred for consideration following determination of theproposed judicial review proceedings, the issue of costs should be decided now.[37] Ms Reed submits that the ground on which the Committee withheld the twodocuments, namely a claim of deliberative privilege, could never have been upheld asthe documents are records of decisions and determinations, and do not contain anydeliberative content. She submits that Mr Fogarty's handwritten notes and the meetingminutes record that at its meeting on 21 February 2019, the Committee made adetermination that the applicant's behaviour amounted to unsatisfactory conduct asdefined in the Act,3 and that the Committee had exercised its discretion by decidingnot to prosecute the applicant before the Disciplinary Tribunal. Ms Reed says that thedetermination recorded in the documents was not described or qualified as being"preliminary", "provisional", or conditional.[38] Ms Reed submits that the determination made by the Committee on 21February also included decisions regarding the amount of the fine to be imposed, theamount of costs to be paid by the applicant, that the applicant be censured, and thatpublication of the decision be anonymised.[39] Ms Reed submits that as regards the legal significance and effect of the 21February decision, it is relevant to note that pursuant to s 26(3) of the Act, a decisionsupported by a majority of the votes cast at a meeting of a Standards Committee "isthe decision of the Committee", and that a Standards Committee is required by theprovisions of s 26(5) to cause full and accurate minutes to be kept of the proceedings3 Section 12.of each meeting "which minutes must record all decisions reached and orders madeby the Committee at the meeting." She submits that these requirements of s 26 supportthe applicant's contention that the decision made by the Committee on 21 February2019 and detailed in the typewritten minutes of the meeting under the heading, "NSC1 determined:", is consistent with that decision being regarded by the Committee as atthat date, as its effective and final decision in relation to its own motion investigationof the applicant.[40] Ms Reed notes that the Practice Note Concerning the Functions and Operationsof Lawyers Standards Committees provides that a Standards Committee must make adetermination on the complaint or matter before it at the hearing of the StandardsCommittee.4 The Practice Note further provides:5Any determination or decision should be made at the hearing itself whereverpossible. In more complex cases, particularly where the parties and theirwitnesses have been heard in person, the determination or decision may bereserved but should be delivered as soon as possible after the hearing.[41] Ms Reed also notes that s 152(1)(b) provides that, having inquired into acomplaint, a Standards Committee may make a determination that the matter beconsidered by the Disciplinary Tribunal or make a determination that there has beenunsatisfactory conduct on the part of a practitioner. The Standards Committee alsohas the power to: make an order censuring the person to whom the complaint relates;6impose a fine not exceeding $15,000;7 and make an order for the payment of costs.8[42] Ms Reed says that it is apparent from the 21 February minutes and MrFogarty's handwritten notes that the Committee exercised those powers at its meetingon that date to make a finding of unsatisfactory conduct, and deciding to order thepayment of a fine and costs, and to censure the applicant. In making those decisionssays Ms Reed, the respondent had exercised its statutory powers to do so and thereafter4 New Zealand Law Society Practice Note Concerning the Functions and Operations of LawyersStandards Committees, cl 8.8(a). The power to make a practice note is conferred by reg 28 of theLawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees)Regulations 2008.5 At cl 8.9.6 Lawyers and Conveyancers Act 2006, s 156(1)(b).7 Lawyers and Conveyancers Act 2006, s 156(1)(i).8 Lawyers and Conveyancers Act 2006, s 157(1).it only remained for it to prepare and set out its reasons and notify the applicant of thedeterminations it had made.[43] Counsel further submits that the contents of the two documents are inconsistentwith, and directly contradict, the Committee's claim of deliberative privilege on whichit based its notice of opposition to the application for pre-commencement discovery.She submits that the documents call into question the accuracy of the statement madeby Mr Fogarty in his affidavit asserting that a determination was not made by therespondent at its meeting on 21 February 2019.[44] Ms Reed submits that when providing an affidavit explaining the reasons for,or process involved in, making a determination under the Act, the Committee has aduty to be candid and provide all relevant evidence and documents. She submits thatthe duty of candour which exists in relation to legal proceedings is equally applicablein the context of an application for pre-commencement discovery where the applicanthas indicated his intention to commence proceedings and has filed a draft statement ofclaim identifying the issues in dispute.[45] Counsel for the applicant submits that in the Committee's correspondence withher prior to 27 May 2019, it had indicated that a decision had been made on 21February, and what remained to be done was the drafting of and approval of thedetailed reasoning for the determination. She submits that prior to issuing the Noticeof Determination on 27 May, the Committee gave no indication that it wasreconsidering the decisions it had made on 21 February, or that the 21 Februarydetermination was preliminary or provisional and that a different determination maybe made.[46] Referring to Mr Fogarty's explanation of the Committee's deliberativeprocess as set out in his affidavit, Ms Reed submits that it is significant that Mr Fogartydid not mention that the constitution of the Committee changed and differed betweenthe meetings on 21 February and 27 May. She submits that the passage of the affidavitdescribing the Committee's deliberative process over the period following the meetingon 21 February and the issue of the Notice on 27 May had been carefully drafted, andhaving regard to the absence of any clear reference to the change in the compositionof the Committee, it could be considered to be misleading. Ms Reed further submitsthat a solicitor who knows or becomes aware that a misleading impression has beencreated by an affidavit is under a duty to correct that impression and put the matterright by requesting that the affidavit be removed from the Court file.9 Ms Reedsubmits that the Committee's failure to take such steps illustrates the manner in whichthe Committee has conducted its opposition to the applications based on ill-foundedgrounds of opposition, and less than complete and candid information.[47] Ms Reed says that by withholding the two documents and by its opposition tothe pre-commencement discovery application on the grounds that the documents wereprotected by deliberative privilege, it is clear that the Committee failed to dischargeits duty of candour. She submits that the Committee attempted to resist the disclosureof documents which showed that when it purported to make the decision to refer thematter to the Tribunal on 27 May 2019, a valid determination had already been madeon 21 February. Counsel says that had the Committee succeeded with its originalposition of withholding the two documents, the Court would have been placed in theposition of determining the application for judicial review without being able toconsider the relevance and effect of those documents on the legality of the differentand subsequent determination made by the respondent on 27 May 2019.[48] Ms Reed submits that by declining the applicant's request for the 21 Februarydocuments; by its ill-founded opposition to the applications for pre-commencementdiscovery; and by opposing the application for leave to cross-examine Mr Fogarty, theCommittee failed to display the behaviour to be expected of a disciplinary committeeof the NZLS having regard to its position as a representative of the legal professionand its statutory responsibility to comply with the principles of natural justice. MsReed says that by reason of the Committee's ill-founded opposition to the applicantbeing provided with the 21 February documents, the applicant has unnecessarilyincurred significant legal costs.9 EBR Holdings Ltd (In Liq) v Van Duyn [2019] NZHC 3325 at [106].[49] In summary Ms Reed submits that the applicant should be awarded indemnitycosts because the respondent advanced and persisted in advancing a hopeless case ofopposition to the applicant's request for the 21 February documents.Submissions for the respondent[50] Ms Paterson, for the Committee, opposes the making of an order for indemnitycosts, and says that the pre-requisite grounds for the making of an order awardingindemnity costs have not been established. She says that, having chosen to waiveprivilege in the face of an application already underway, the Committee accepts that itis liable to pay costs determined on a 2B basis. She says however that indemnity costscould not be imposed at this interlocutory stage without consideration of the merits ofthe applicant's claim for judicial review and that any application for indemnity costsshould be made and determined following the outcome of the judicial reviewproceedings that the applicant has signalled.[51] Ms Paterson submits that the Committee's opposition to the pre-commencement discovery application was not based on hopeless grounds. She saysthat as a quasi-judicial decision maker, the respondent, is in appropriate cases, entitledto rely on a public interest privilege over its deliberative materials. Ms Paterson saysthat a tribunal cannot be required to disclose or give evidence of its deliberativeprocess and thinking. She submits that the only determination made by the Committeewas the decision it set out in the Notice of Determination dated 27 May 2019, and thatdeliberative privilege applies to the Committee's considerations of the matter prior toit reaching the decision set out in the Notice.[52] Ms Paterson submits that until the Committee had approved a notice ofdetermination, including its reasons with which all members of the Committee agreed,the respondent committee was not functus officio and it was entitled and able to revisitand reconsider any previous decisions it had made regarding the matter it had underinvestigation.[53] Ms Paterson says that a costs application is not the appropriate time for thecourt to engage in a detailed assessment of the respective parties' contentionsregarding the nature of a national standards committee's decision-making under theAct. She says that for the present, the only issue the Court needs to determine iswhether the Committee acted "very unreasonably" or in a flagrant manner. She saysthat the Committee's response to the applicant's allegations is that its claim ofdeliberative privilege was informed by and based on its understanding of decision-making under the Act which is reasonably arguable, and by seeking to have thedeliberative privilege it claimed upheld, it was not mounting hopeless opposition tothe pre-commencement discovery application. Furthermore says Ms Paterson, theCommittee's opposition to the application was not only based on a claim ofdeliberative privilege, but also on wider grounds including that it was not impossibleor impracticable for the applicant to formulate his claim for judicial review withoutthe information he sought. She submits that the applicant's draft statement of claimdemonstrates that.[54] Ms Paterson says that the Committee accepts that as a body exercising publicpower and being the proposed Committee of an application for judicial review, it hasa duty of candour. She submits however that as a quasi-judicial decision-maker it canexercise and claim deliberative privilege over its deliberative materials andcommunications, including draft notices of determination. Ms Paterson says that theCommittee provided the applicant with a schedule listing all of the documents in itspossession and identifying those that it would withhold, and thereafter engaged withthe applicant in correspondence in relation to challenges raised by the applicant tocertain claims of privilege, and as a result provided some further information.[55] Ms Paterson submits that the Committee's manner of dealing with theapplicant's request for relevant documents and information regarding the decisioncontained in the Notice of Determination was consistent with the parties adoptingopposing, but nevertheless good faith, positions. It was not a case of the Committeeadopting an approach to withhold documents from the applicant that he was clearlylegally entitled to.[56] The Committee rejects the applicant's criticisms of its conduct in the course ofits opposition to the applications, and rejects the applicant's criticism of Mr Fogarty'sevidence in his affidavit which is alleged to be capable of being misleading. MsPaterson says that Mr Fogarty's affidavit was not inaccurate or misleading. She notesthat Mr Fogarty specifically stated in his affidavit that he did not discuss the detail ofthe deliberative process having regard to the Committee exercising deliberativeprivilege. Furthermore says Ms Paterson, the suggestion that the contents of MrFogarty's affidavit could be misleading should be considered in light of the Committeehaving agreed to providing the documents sought by the applicant to the Judge hearingthe application for determination of whether the claim of deliberative privilege wouldbe upheld. In these circumstances there could be no possibility of the applicant beingmisled by the position taken by the respondent.[57] Ms Paterson says that the dispute between the parties turns on the starkdifferences in their respective interpretations of the Committee's decision-makingpower and how that affects its ability to assert deliberative privilege. She submits thatthe dispute over that issue did not affect the Committee's conduct of the interlocutoryproceedings, and it did not conduct itself as regards the applications unreasonably, letalone at the level of "very unreasonably" such as would justify the imposition ofindemnity costs.Discussion[58] Pursuant to r 14.6 of the High Court Rules 2016, the Court has the power tomake an order for increased costs10 and indemnity costs.11 Rule 14.6(4) sets out thecircumstances in which the Court may order a party to pay indemnity costs:(4) The court may order a party to pay indemnity costs if—(a) the party has acted vexatiously, frivolously, improperly, orunnecessarily in commencing, continuing, or defending aproceeding or a step in a proceeding; or(b) the party has ignored or disobeyed an order or direction of thecourt or breached an undertaking given to the court or anotherparty; or(c) costs are payable from a fund, the party claiming costs is anecessary party to the proceeding affecting the fund, and theparty claiming costs has acted reasonably in the proceeding;or10 Rule 14.6(3).11 Rule 14.6(4).(d) the person in whose favour the order of costs is made was nota party to the proceeding and has acted reasonably in relationto it; or(e) the party claiming costs is entitled to indemnity costs under acontract or deed; or(f) some other reason exists which justifies the court making anorder for indemnity costs despite the principle that thedetermination of costs should be predictable and expeditious.[59] Here the applicant relies on r 14.6(4)(f)12 and says that the Committee'sopposition of the application for pre-commencement discovery, while without meritand always destined to fail, was nevertheless pursued until shortly before the matterwas to be heard, thereby causing the applicant to incur quite unnecessary legal costsand expenses.[60] The Court of Appeal in Bradbury v Westpac Banking Corp said as regards thecosts provisions in the High Court Rules that:13[27] The distinction among our three broad approaches: standard scalecosts; increased costs; and indemnity costs may be summarised broadly:(a) standard scale applies by default where cause is not shown todepart from it;(b) increased costs may be ordered where there is failure by thepaying party to act reasonably; and(c) indemnity costs may be ordered where that party has behavedeither badly or very unreasonably.[28] Indemnity costs, which depart from the predictability of the RulesCommittee's regime, are exceptional and require exceptionally bad behaviour.That is why to justify an order for such costs the misconduct must be"flagrant": Prebble v Awatere Huata (No 2) [2005] 2 NZLR 467 at [6] (SC).[61] In N-Tech Ltd v Abooth Ltd, Kós J observed, as regards increased andindemnity costs:14It follows from these authorities that increased or indemnity costs may beawarded on the basis of lack of merit, in a case where the trial is not completed,only where the lack of merit is both obvious and incontrovertible. So clearlyso that there is no reasonable possibility that the Court might form a different12 The application however erroneously refers to r 14.6 (3)(d) which relates to increased costs.13 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] NZLR 400 at [27]14 N-Tech Ltd v Abooth Ltd [2012] NZHC 1167 at [108].view with the benefit of all the evidence and closing submissions. No difficultor detailed speculation is involved. The claim is and was so flawed thatnothing in the evidence and submissions to follow could save it – and theplaintiff has acted unreasonably in bringing or continuing the claim. It is, thusstated, a double hurdle. The first assesses the claim; the second, theclaimant's conduct.[62] Applying the requisite criteria and principles set out in Bradbury and N-Tech,for the applicant to succeed and obtain an order for indemnity costs he must overcomethe hurdles of first showing that the Committee's opposition to his pre-commencementdiscovery application was wholly without merit, and secondly that the Committee'sconduct in the course of defending the application was flagrant and "veryunreasonable".[63] The issue here is not the merit of the applicant's possible future challenge tothe legality of the Committee's Notice of Determination, but the merits orjustifications for the Committee opposing the pre-commencement discoveryapplication and application for leave to cross-examine Mr Fogarty.[64] I agree with Ms Paterson's submission that the determination of thisapplication for an order for indemnity costs is not the appropriate occasion on whichto assess the merits of a possible future challenge by the applicant to the legality of theNotice of Determination of 27 May 2019 by which it has referred the matter to theDisciplinary Tribunal for consideration. Although Ms Reed made some submissionsregarding the matter, I did not hear anything approaching full argument from theparties. That is a matter properly left for determination in the context of a judicialreview, should that eventuate.[65] Accordingly, I do not propose to make any findings as regards the merits of theapplicant's possible future challenge of the legality of the respondent's decision torefer the matter to the Disciplinary Tribunal as set out in the Notice of Determination.I do note however that a Standards Committee has the power to regulate its procedurein such manner as it thinks fit,15 and to reserve delivering and issuing a Notice of15 Lawyers and Conveyancers Act 2006, s 142(3).Determination following a hearing.16 I also note that a Notice of Determination muststate the determination and the reasons for it.17[66] Turning now to the merits of the Committee's opposition to the application forpre-commencement discovery application and for leave to cross-examine Mr Fogarty.The opposition hinges upon an assertion of deliberative privilege.[67] In Comalco New Zealand Ltd v Broadcasting Standards Authority,18 this Courtobserved that:19There is ongoing public interest in preserving public confidence in Courts andtribunals The policy simply recognises the wider realities of decision-making needs. Some decisions are made best, and some indeed on delicatesubject-matter can be made, in a considerable degree of privacy. There is areal danger of damaging misconceptions otherwise. Nakhla v McCarthyrepresents a situation where, as can happen, the opposite was true: there wasa greater risk of misconception through non-disclosure. It was the exception,not the rule. The policy evaluation is one to be made in the circumstances ofeach case as it arises.[68] The provisions of the Act canvassed above provide a reasonable foundation forthe Committee's adoption of the position that its hearing records and minutes relatingto its consideration of the applicant's matter during the period prior to it reaching andissuing its notice of determination on 27 May 2019 were protected by deliberativeprivilege. Furthermore, I consider that it is reasonably arguable that the steps takenby the Committee in conducting a hearing on the papers on 21 February 2019, andnotwithstanding the decisions made at that hearing thereafter deciding upon a differentoutcome when it met on 27 May 2019 to resume the hearing, were within its powers.[69] As well as the provisions of the Act and Practice Note which I have referredto, the respondent adopting the position that its 21 February records were subject todeliberative privilege was entirely consistent with the purpose of deliberative privilegebeing the maintenance and preservation of public confidence in the courts, tribunalsand other statutory decision makers such as Standards Committees, by the16 New Zealand Law Society Practice Note Concerning the Functions and Operations of LawyersStandards Committees, cl 8.9.17 Lawyers and Conveyancers Act 2006, s 158(2)(a).18 Comalco New Zealand Ltd v Broadcasting Standards Authority [1995] 3 NZLR 469 (HC).19 At 473.maintenance of a privilege covering all or any deliberative materials or records whichprecede the judgment or decision delivered or issued by the judicial officer, tribunal,or statutory decision maker. A Standards Committee's decisions during the course ofan investigation on issues remain at large and are open to alteration and modificationat any time up until the notice of determination required by s 158 of the Act is issued.Where decisions are made at a hearing of the Standards Committee, until they are setout in a notice of determination and the notice is issued in accordance with the Act, itis open to the Committee to change or modify it. Of course all decisions to alter ormodify earlier decisions made by the Committee must be made in accordance with theAct.[70] In my view, the Committee's decision to categorise the 21 February documentsas being protected by deliberative privilege was not unreasonable or withoutjustification. Having decided that deliberative privilege applied to those documents,the Committee's position of opposing the applicant's pre-commencement discoveryapplication was entirely justified. The fact that it subsequently decided to waiveprivilege and voluntarily provide the documents to the applicant, does not detract fromthe legitimacy of its earlier position. I am certainly not persuaded by the applicantthat the Committee's grounds of opposition to the pre-commencement discoveryapplication could not possibly have succeeded.[71] I also reject Ms Reed's submission that the Committee's decisions on 21February (set out in the meeting minutes and Mr Fogarty's handwritten note)comprised the Committee's determination and as such were not protected bydeliberative privilege. It is clear from the email correspondence exchanged betweenMs Reed and Mr Fogarty following the 21 February hearing that Ms Reed may haveread Mr Fogarty's emails as indicating that a determination had been made by theCommittee at the hearing on that date. In his email to Ms Reed sent on 19 March 2019at 6.09 pm, Mr Fogarty however explained that he estimated that it might be anothermonth or so "before the Standards Committee is in a position to deliver itsdetermination." Essentially the same explanation was given by Mr Fogarty in hisemail to Ms Reed on 18 April 2019 in which he said that it had not been possible forthe Committee to deliver its written determination prior to Easter. Mr Anderson'semail to Ms Reed on 24 April 2019 saying that the matter remained with the StandardsCommittee because it "needs to discuss and approve the detailed reasoning of anywritten decision and/or determination before it can be issued", may well have beenread as indicating that while the decision itself had been made, it was the reasons forthe decision that needed to be agreed and finalised before the determination could beissued.[72] However, in his email to Ms Reed of 1 May 2019, Mr Fogarty said that theCommittee's written determination would record "not only its findings, but also thereasons for its findings. This is not dissimilar to a reserved court judgment."Although Mr Fogarty knew what the Committee had decided on 21 February, itappears from his emails that until the Committee had finalised its determinationincluding its reasons for its determination, both he and the Committee considered thatthere was no determination to be issued. That approach is reflected in Mr Fogarty'semails to Ms Reed of 9 May 2019 in which he said that the hearing scheduled thefollowing day, was effectively a continuation of the earlier hearing, and explained thata standard committee's determination is not formally made until such time as a writtennotice of determination, signed for on behalf of the standards committee is issued anddelivered to the parties. In his affidavit Mr Fogarty also says that it was always hisunderstanding that a Committee has not made a determination until the written noticeof determination in which it has set out its reasons, has been signed and issued to theparties in accordance with the requirements of s 158 of the Act. Such an approach isconsistent with the existence and application of deliberative privilege to the decisionmaking functions of the Committee at all stages prior to it issuing its writtendetermination. Such an approach is also consistent with Elias CJ's observation inLewis v Wilson & Horton that:20The third main basis for giving reasons [in a judgment] is that they provide adiscipline for the Judge which is the best protection against wrong or arbitrarydecisions and inconsistent delivery of justice.[73] This observation confirms that formulation of reasons for a decision forms partof a decision-making process. A decision-making committee should not be bound byany initial view it took of a matter if, in the course of formulating its reasons, it decidesit should reach a different conclusion. While the 21 February documents record what20 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [82].the Committee had decided on that date, until it had finalised the determination in anotice of determination and issued it pursuant to s 158 of the Act, it was always opento the Committee to amend or change whatever it had earlier decided. Accordingly, Ireject Ms Reed's submission that the decisions made by the Committee on 21 Februaryand set out in the meeting minutes and in Mr Fogarty's handwritten note comprisedthe Committee's determination, and as such were not protected by deliberativeprivilege.[74] For these reasons I do not consider that the Committee acted unreasonably byadopting the position of initially opposing the pre-commencement discoveryapplication on the grounds that the 21 February documents were covered bydeliberative privilege. The fact that the Committee subsequently waived privilegeshortly before the scheduled hearing of the application does not alter the status of the21 February documents as being within the scope of deliberative privilege.[75] I also reject the applicant's submission that the Committee initially attemptedto resist making disclosure of the 21 February documents in order to prevent theapplicant and the Court from having recourse to the documents in the context ofjudicial review proceedings. Having found that Mr Fogarty and the Committee werejustified in treating the documents as being covered by deliberative privilege, thewithholding of the documents was entirely appropriate. The Committee properlydisclosed the existence of the documents in the schedule it prepared and provided tothe applicant, and it agreed to provide the documents to the court hearing theapplication for pre-commencement discovery to enable the Judge to determinewhether the claim of privilege was properly made. The intended process by which theJudge would see the documents and determine whether the claim of deliberativeprivilege was properly made, would ensure that the applicant and the Court were notmisled. If the Court concluded that the claim of deliberative privilege had been madewithout proper foundation, the documents would at that stage have been provided tothe applicant. I accordingly find that on the material before the Court the applicanthas not made out his allegations that the Committee's conduct of withholding the 21February documents was contrary to its duty of candour or that it had the potential tobe misleading.[76] I reject the applicant's submission that because Mr Fogarty stated in hisaffidavit that the Committee had not made a determination of the applicant's matter atthe 21 February hearing, that his affidavit "could be said to be misleading". I alsoreject the submission that by omitting to make any reference to a change to thecomposition of the Committee having taken place, Mr Fogarty's affidavit waspotentially misleading. While the issue of composition of the Committee was notaddressed in Mr Fogarty's affidavit, that may well be because the issue his affidavitwas principally directed at was whether deliberative privilege applied to thedocuments. In any event, I note that the issue of the composition of the Committeewas indirectly referred to in footnote 4 of the Notice of Determination,21 which showsthe Committee was adopting a transparent approach as regards its decision-makingprocess.[77] The Committee's opposition to the application for leave to cross-examineMr Fogarty at the hearing of the pre-commencement discovery application was notimproper or unreasonable. Cross-examination of deponents in judicial reviewproceedings requires leave, and the applicant to show the relevance of the issues to beaddressed in the proposed cross-examination, and that cross-examination is necessaryin order to meet the requirements of justice.[78] In Geary v The Psychologists Board,22 the Court of Appeal said:[22] Judicial review is part of the High Court's supervisory jurisdiction andfact-finding is not a central activity. If cross-examination was permitted as ofright, there would be a risk of unwarranted dalliance into factual assessmentsby the courts. The avoidance of that kind of exercise is the core of thepresumption against cross-examination in judicial review proceedings, andrecognised in the relevant authorities. The rule of practice is a commonsenseresponse to the nature of the litigation.[23] Cross-examination is properly constrained by a leave requirement. Thecriteria for leave - necessity and the requirements of justice - are not undulyonerous. If a party can point with sufficient particularity to a basis upon whichcross-examination is necessitated by the shape of the case, then leave will begranted. We find no justification for a wholesale reconsideration of the policyapproach which has evolved.21 "Regarding the composition of the Standards Committee at its respective meetings on 21 February2019, 10 May 2019, and 27 May 2019, seeErwood v Maxted [2015] NZSC 181 at [10] andWaikato District Health Board v New Zealand Nurses Organisation [2017] NZCA 247 at [53] to[56]."22 Geary v the Psychologists Board [2009] NZCA 134, [2009] NZAR 338.[79] The application for leave to cross-examine Mr Fogarty set out particulars offive issues on which the applicant wished to cross-examine him. Each of the identifiedissues was directed at establishing that the Committee had made a final determinationof its own motion investigation as to the outcome, penalty, and other orders at itsmeeting on 21 February 2019. In relation to each issue, the applicant sought to cross-examine Mr Fogarty regarding the process followed by the Committee and to showthat it had proceeded as if it had made a final determination at the meeting on 21February 2019. The applicant's proposition being that once the Committee had madeits determination on 21 February 2019, thereafter, as a matter of law, it could not bealtered or amended. However, the Committee's position as I understand it, was thatthe issue in dispute concerned the nature of the Committee's decision-making power,and how that affected its ability to assert deliberative privilege. The Committee'sposition being that it was a question of law which would not be informed by anyevidence adduced by cross-examination of Mr Fogarty regarding the Committee'sdeliberations prior to it issuing its Notice of Determination dated 27 May 2019. In myview, as the Committee's position was that as a matter of law its determination of thematter was that set out in its written Notice of Determination and the matters recordedin Mr Fogarty's handwritten notes and in the Committee's minutes of 21 February2019 were merely preliminary or provisional, it was not unreasonable for it to opposethe application to cross-examine Mr Fogarty.Result[80] The applicant's application for an order that the respondent pay indemnitycosts is disallowed and is dismissed.[81] The applicant is however entitled to costs on his pre-commencement discoveryapplication, and I make an order that the respondent pay scale 2B costs together withdisbursements to be fixed by the Registrar.[82] The respondent having succeeded in its opposition to the application forindemnity costs, is entitled to costs on this application. The respondent's costs are tobe calculated pursuant to scale 2B. If the parties are unable to agree as to costs, theyare to file costs memoranda not exceeding three pages in length apart from anyannexures, within 10 working days from the date of delivery of this judgment._____________Paul Davison J