THE UNIVERSITY OF AUCKLAND V THE INTERNATIONAL EDUCATION APPEAL AUTHORITY AND ANOR HC AK CIV 2006-485-000063

THE UNIVERSITY OF AUCKLAND V THE INTERNATIONAL EDUCATION APPEAL AUTHORITY AND ANOR HC AK CIV 2006-485-000063 8 March 2007FILE NOT TO BE SEARCHED WITHOUT LEAVE OF A JUDGE OF THIS COURT IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-485-000063UNDER the Judicature Amendment Act 1972 IN THE MATTER OF the Education Act 1989 BETWEEN THE UNIVERSITY OF AUCKLAND Plaintiff AND THE INTERNATIONAL EDUCATION APPEAL AUTHORITY First Defendant AND LISA ANN SUMMERS Second Defendant Counsel: D J Neutze/Ms V T Bruton for Plaintiff J Oliver for First Defendant G M Illingworth QC as Amicus Judgment: 8 March 2007 at 4.30 p.m.COSTS JUDGMENT OF VENNING JThis judgment was delivered by me on 8 March 2007 at 4.30 pm, pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar DateSolicitors: Brookfields, Auckland Crown Law Office, Wellington Marshall Bird & Curtis, Auckland Copy to: G M Illingworth QC, Auckland P A Cunningham, AucklandIntroduction[1] The plaintiff seeks costs against the first defendant following the judgment delivered on 21 December 2006. [2] As directed in the judgment counsel have exchanged memoranda. The plaintiff seeks costs on a 3C basis (with second counsel certified for) against the first defendant. [3] For the first defendant Mr Oliver submits first that no costs order should be made because of the first defendant's limited role. Next he submits that the issue of whether costs ought to be awarded against the first defendant should be approached on the basis of principles that apply to costs against judicial officers. In the alternative, if costs are to be awarded Mr Oliver submits 2B is the appropriate category and timeband.Should a costs order be made against the first defendant?[4] Mr Oliver first opposes a costs order against the first defendant on the basis of the first defendant's limited role in the proceeding. The substantive arguments advanced against the plaintiff's case were those advanced by the amicus, Mr Illingworth QC. [5] But while the first defendant adopted the usual approach by a decisionmaker in review proceedings of abiding the decision, the plaintiff was put to the expense of taking the proceedings to seek to review the decision because of the failings in the original decision and the impact of that decision on the plaintiff. In effect the first defendant sought to support that decision. Although formally abiding the decision, Mr Oliver did make submissions for the first defendant during the course of the hearing in support of the first defendant's position.[6] Unless there is force in Mr Oliver's submission that the first defendant should be treated as equivalent to a judicial officer, I agree with the plaintiff's submission that costs should follow the outcome in the usual way.Is the first defendant to be regarded as a judicial officer?[7] I accept the submissions made on behalf of the plaintiff that the first defendant should not be regarded as a judicial officer for the purposes of costs. The first defendant is not a Court. The Inferior Courts Procedure Act 1909 defines inferior courts as meaning:(a) A District Court: (b) A Disputes Tribunal constituted under the Disputes Tribunals Act 1988: (c) A District Court Judge, Justice of the Peace, [Community Magistrate,] Coroner, or Referee of a Disputes Tribunal in respect of the exercise of any judicial authority conferred upon him or her by any Act.[8] In a helpful judgment O'Rourke v Secretary for Justice (Christchurch, 3 July 1996, CSS17/96 C56/95) a full Court of the Employment Court considered the issue of whether a Disputes Tribunal referee was a judicial officer. In the course of its decision the Court held that a Disputes Tribunal referee was a judicial officer. The Court identified a number of factors that tended to establish whether someone was a judicial officer or not. The relevant factors were:• The referee was appointed by warrant under the hand of the Governor-General.• The Tribunal was exercising jurisdiction as a Court, or a division of a Court.• The determinations of the Tribunal were enforceable as orders of the District Court.• The Tribunal and Referee fell within the definition of the term "inferior court" contained in the Inferior Courts Procedure Act 1909.• The second schedule to the Oaths and Declarations Act 1957 set out the persons required to take the oath of allegiance and the judicial oath pursuant to s 22 of that Act. They included Referees of Disputes Tribunals.• A "person acting judicially" was defined in the Oaths and Declarations Act 1957 as "any person having in New Zealand by law or by consent of parties authority to hear, receive and examine evidence". [9] As counsel for the plaintiff submitted, the first defendant does not fulfil any of the above criteria, with the exception of the last aspect. [10] Also of relevance are the terms of the first defendant's appointment. The first defendant is appointed by the Secretary for Education under the Code of Practice for the Pastoral Care of International Students. She has a relatively limited role of investigating and determining complaints received from international students or their agents. Her decision can not be enforced in Court. Significantly the Secretary for Education indemnifies the first defendant "for any damages, compensation or cost in respect of any actions or claims taken against the first defendant in her personal capacity for any act done or committed by the first defendant in carrying out the functions of the first defendant under this memorandum". [11] I agree that the indemnity provision contemplates that costs orders may be made against the first defendant in carrying out her functions. [12] I conclude that the first defendant is not and should not be treated as a judicial officer for the purposes of costs. [13] There is therefore no reason in principle why an order for costs ought not to be made against the first defendant in this case. The first defendant is personally indemnified against an order for costs by the Secretary for Education.Application of cost principles in this case[14] The plaintiff submits that the case should be classed as a category 3 proceeding. Counsel refers to Baragwanath J's comments at an early stage in the proceeding that the case was important and complex from both the plaintiff's point of view and that of the defendants. Counsel also notes that the proceedings were the first of their kind to define the scope of the first defendant's role. Counsel also refers to the appointment of Mr Illingworth QC as amicus curiae. [15] However, while the case undoubtedly was of significance and importance to the plaintiff and, to a degree the first defendant, the case did not involve any particularly difficult issues of law given that it was an application for judicial review. It called for the application of administrative law principles to the particular facts of this case. While senior counsel was appointed as amicus, that is not uncommon. [16] The case involved issues of average complexity and required counsel of average skill in the High Court. I fix the appropriate category for assessing costs as category 2. [17] The plaintiff has also sought costs on timeband C. I accept that with the volume of documentation timeband C is appropriate for the stages of commencement of the proceedings and also for discovery. However, the remainder of steps within the proceeding do not require anything other than timeband B to be applied. That is in accordance with the application of the principles set out at r 48B which contemplate that different bands might apply to different stages of the proceeding. [18] I also accept Mr Oliver's submission that the time allocations provided at cl 7 of the Third Schedule only apply to cases where the trial does not eventuate. In the present case the matter did proceed to a trial. Clauses 8 and 9 apply, but cl 7 does not. [19] I certify for second counsel given the volume of documentation in this case.Uplift[20] I do not accept the submission by the plaintiff that the first defendant acted perversely or oppressively. At para [73] of the judgment I expressly recorded that I did not consider the first defendant was apparently biased or had apparently predetermined the matter. Rather, the first defendant fell into error by mistakenly pursuing a line of inquiry outside the complaints made by the second defendant. There is no need to uplift the order for costs as suggested by the plaintiff.Conclusion[21] The plaintiff will have costs against the first defendant in the sum of $34,025.00 in accordance with the schedule attached. The plaintiff will also have disbursements in the sum of $2,196.47.00. __________________________ Venning JSCHEDULEEvent Daily Recovery Rate Days AmountStatement of Claim (Band C) $1,450 10.0 $14,500 Interlocutory application for interim orders (Band B) $1,450 .6 $870 Sealing order $1,450 .2 $290 Filing memorandum re timetable orders (Band B) $1,450 .4 $580 Appearance at case management conference 13.2.06 (Band B) $1,450 .3 $435 Memorandum for mentions hearing (Band B) $1,450 .4 $580 Filing joint memorandum for mentions hearing (Band B) $1,450 .4 $580 Appearance at mentions hearing (Band B) $1,450 .2 $290 Inspection of first defendant's documents (Band C) $1,450 6.0 $8,700 Filing consent memorandum 7/7/06 (Band B) $1,600 .4 $640 Appearance at mentions hearing (Band B) $1,600 .2 $320 Filing memorandum seeking leave to file an amended claim (Band B) $1,600 .4 $640 Preparation for hearing $1,600 2.0 $3,200 Appearance at the hearing – senior counsel $1,600 1.0 $1,600 Second counsel $1,600 .5 $800TOTAL: $34,025