LINCOLN v NEW ZEALAND LAW SOCIETY [2019] NZHC 74

LINCOLN v NEW ZEALAND LAW SOCIETY [2019] NZHC 74 [5 February 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2018-409-000462[2019] NZHC 74BETWEEN RICHARD LINCOLNApplicantAND NEW ZEALAND LAW SOCIETYRespondentHearing: On the papersAppearances: Applicant in personP N Collins for RespondentJudgment: 5 February 2019JUDGMENT OF DUNNINGHAM J[1] In a judgment issued on 23 November 2018 I declined the applicant'sapplication to be admitted as a barrister and solicitor of this Court. I reserved the issueof costs.[2] The New Zealand Law Society seeks costs calculated on a category 2B basis,accepting the proceeding was "of average complexity and requiring counsel of skilland experience considered average in the High Court" in accordance with r 14.3(1).Those costs amount to $13,937.50 with disbursements of $110.00.[3] The applicant opposes an award of costs, saying that:(a) the proceeding concerned a matter of public interest and he actedreasonably in the conduct of the proceeding;(b) an award of costs would be a "compelling disincentive" and causeunfair and unjustified hardship to him.[4] In advancing these matters in his submissions he notes that the Court of Appealin Re Lundon held that applications for admission involve a matter of public interest.1He also submits that he acted reasonably in commencing and continuing theproceeding and, by reference to the outcome in other cases, in particular to Gibbs vNew Zealand Law Society, his case could not be considered a hopeless case.2[5] The applicant states that he currently has "no other useful occupationaltraining", as his training, experience and knowledge in information technology is nowdated by almost a decade and is largely redundant. He says he has placed his lifesavings into studying and obtaining a law degree and completing professionals, andthat substantial effort, time and money is now wasted. He also says that publicationof the judgment declining his application has adversely affected his options for futureemployment.[6] In the circumstances, he says that an award of costs would be "harshly punitiveand a strong disincentive against him ever applying for admission again at a later datewhen he can satisfy the Court that he is a fit and proper person to practice law".Relevant principles[7] Costs are in the discretion of the Court.3[8] While costs generally follow the event, rule 14.7 provides that the Court maymake a reduced award, or refuse to make an order for costs, in certain circumstances.These include where:(a) The proceeding concerned a matter of public interest, and the partyopposing costs acted reasonably in the conduct of the proceeding; or41 Re Lundon [1926] NZLR 656 (CA) at 658.2 Gibbs v New Zealand Law Society [2014] NZHC 1141.3 High Courts Rules, r 14.1(1).4 Rule 14.7(e).(b) Some other reason exists which justifies the Court refusing costs orreducing costs despite the principle that the determination of costsshould be predictable and expeditious.5Analysis[9] While costs normally follow the event, I accept that there are factors in thiscase which warrant the discretion found in r 14.7 being exercised. First, while theseare not strictly public interest proceedings in the sense envisaged by r 14.7(e), I acceptthat the public interest is engaged in such applications. The statutory requirements foradmission provided for in Part 3 of the Lawyers and Conveyancers Act 2006 (the Act)are there, both to maintain public confidence in the legal profession, and to protect thepublic by ensuring that the standards of the legal profession are rigidly adhered to.6While an application for admission clearly has a private interest element to it, therequirements of the Act relating to admission are designed to serve the broaderpurposes of the Act and not there to promote the interests of the individual applicants,nor to punish or otherwise penalise them.[10] While this is not a case, as in Brown v The New Zealand Law Society, whereMr Lincoln had no alternative to make application to the Court (as Mr Lincoln had notreached the point where the Society had declined to issue him with a certificate ofgood character), there are, in my view, a number of parallels with the case in Brown.7[11] I accept the application was advanced on a reasonable basis, and it wassupported by a practicing barrister, Mr Starling, who was prepared to employMr Lincoln. It was also supported by a retired barrister, Mr David Wood, of Timaru.[12] I also accept that the application was responsibly argued by Mr Lincoln. Heengaged counsel to handle the cross-examination of witnesses, and advanced his casein a logical and measured way.5 Rule 14.7(g).6 Lawyers and Conveyancers Act 2006, s 3(1).7 Brown v The New Zealand Law Society [2018] NZHC 1692.[13] While I do not have evidence to support Mr Lincoln's submission that he is notin a strong position financially, I accept that is likely to be the case. I also acknowledgethat he has invested considerable time and money into obtaining the relevant legalqualification and he is not in a position to use it. However, I consider he does haveother employment options, albeit in less skilled occupations. Although financialhardship is not determinative of whether a costs award should be made, it can be arelevant factor, and I give some weight to it in this case.8[14] I also accept that there are a number of cases involving an application foradmission where the Courts have accepted that the public interest is engaged and havedeclined to award costs, regardless of the outcome, where the party opposing the costsaward has acted reasonably in the conduct of the proceedings.9[15] I do not, however, put much weight on the impact that an award of costs wouldhave on the applicant applying again at a later date.10 At 56 years old, I see lessprospect of Mr Lincoln being able to demonstrate, with the passage of time, that hehas matured and put behind him the behaviour which precluded him from meeting thefit and proper person test on this occasion, than would be the case with a youngercandidate.[16] Finally, I take account of the fact that the respondent was obliged to oppose theapplication in this case by virtue of virtue of Clause 6 of the Lawyers andConveyancers Act (Lawyers: Admission) Rules 2008. It is undertaking a publicfunction in that role and should not have to bear the full cost of that in every case,regardless of the outcome.8 Craig v Keith [2017] NZHC 2664 at [23].9 See, for example, Sun v New Zealand Law Society [2014] NZHC 1318; Samuel v New ZealandLaw Society [2014] NZHC 3026 at [43]; Pou v Waikato/Bay of Plenty District Law SocietyHC Rotorua CIV-2004-463-0511, 10 May 2005 at [47] and [49]; Ali v New Zealand Law Society[2014] NZHC 1111 at [42]; Re Donnelly HC Auckland CIV-2010-404-5943, 2 September 2011 at[66]; and Brown v New Zealand Law Society [2018] NZHC 1263, [2018] NZAR 1192 at [10].10 As was the case in Roble Mohamed Ali v New Zealand Law Society [2014] NZHC 1111, and inRe Lundon [1926] NZLR 656 (CA) at 658.[17] Balancing these matters, and in the exercise of my discretion, I make a reducedorder for costs in favour of the respondent of $5,000, plus disbursements of $110.00.Solicitors:P N Collins, Barrister, AucklandCopy to: Mr Lincoln