BURCHER v AUCKLAND STANDARDS COMMITTEE [2020] NZHC 2677
Although appellant achieved partial success, the appeal vindicated both parties to an extent and the Tribunal's overall finding of misconduct was upheld, so success was evenly shared and costs should lie where they fall.
Source-derived case information.
- Citation
- [2020] NZHC 2677
- Parties
- Appellant: Timothy John Burcher; Respondent: Auckland Standards Committee 5 of the New Zealand Law Society
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 13 October 2020
- Procedural Posture
- Disciplinary Appeal / Costs Application Following Judgment on Appeal
- Outcome
- No costs awarded; costs lie where they fall.
- Legal Topics
- Misconduct, Unsatisfactory Conduct, Costs Orders, Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy John Burcher
Appellant
Auckland Standards Committee 5 of the New Zealand Law Society
Respondent
Procedural Posture
Disciplinary Appeal / Costs Application Following Judgment on Appeal
Legal Issues
- 1 Whether appellant was entitled to costs despite partial success
- 2 Whether costs should follow the event or lie where they fall when success is shared
- 3 Relevance of the regulator's public function as a factor against costs
Ratio Decidendi
Although appellant achieved partial success, the appeal vindicated both parties to an extent and the Tribunal's overall finding of misconduct was upheld, so success was evenly shared and costs should lie where they fall.
Court Disposition
No costs awarded; costs lie where they fall.
Orders
- Each party to bear its own costs; no award of costs
Full Case Text
Judgment text and source record
1 paragraphs
BURCHER v AUCKLAND STANDARDS COMMITTEE [2020] NZHC 2677 [13 October 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-1262[2020] NZHC 2677BETWEEN TIMOTHY JOHN BURCHERAppellantAND AUCKLAND STANDARDS COMMITTEE5 OF THE NEW ZEALAND LAWSOCIETYRespondentHearing: On the papersCounsel: D P H Jones QC for AppellantE Mok for RespondentJudgment: 13 October 2020JUDGMENT OF WHATA JThis judgment was delivered by me on 13 October 2020 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Counsel: D P H Jones QC, AucklandSolicitors: Meredith Connell, Auckland[1] This is a cost judgment. Mr Burcher appealed against the decision of the NewZealand Lawyers and Conveyancers Disciplinary Tribunal who had found him guiltyof a charge of misconduct for breaching a suspension order imposed by the Tribunal.The outcome was recorded at paragraph [108] of the judgment, namely:1The appeal is allowed in part. Particulars 2, 3 and 4 do not amount tomisconduct or unsatisfactory conduct. Particulars 1 and 5 do not amount tomisconduct, but amount to unsatisfactory conduct. I am satisfied, however,that there was a proper basis for finding disgraceful and dishonourableconduct in relation to Particulars 6, 7, 8 and 9.[2] Mr Burcher now applies for costs on the basis that he was at least partiallysuccessful. The respondent opposes the application. The respondent notes that,among other things, I did not seek the submissions on costs.[3] The respondent also submits that, having failed to overturn the finding ofmisconduct, the appellant strictly lost. The respondent also refers to the publicfunction performed by the respondent as a factor to be taken into account.2Assessment[4] As the Court of Appeal stated in Weaver, partial success is still success andordinarily costs follow the event.3 But where, as here, both parties were vindicated bythe result, I am satisfied success was evenly shared.4 Indeed, this was a hard-foughtcase covering many grounds of appeal. Mr Burcher successfully demonstrated thataspects of his conduct did not amount to misconduct. He has been vindicated to thatextent. However, he failed to show that other aspects of his conduct did not amountto misconduct. The Committee's overall finding of misconduct was therefore upheldand its opposition to the appeal thus justified. Accordingly, costs should lie wherethey fall.1 Burcher v Auckland Standards Committee 5 of the New Zealand Law Society [2020] NZHC 43.2 Lagolago v Wellington Standards Committee 2 [2018] NZCA 406, (2018) 24 PRNZ 763 at [18]-[20].3 Rule 14.1(a) and see Weaver & Anor v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379at [26], [52] and [53].4 See also r 14.7