Application for Review of Registrar’s decision – T Gunn.

Application for Review of Registrar's decision – T Gunn.IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2019-419-64[2019] NZHC 3413UNDER The High Court Rules 2016IN THE MATTER Of an application for Review of Registrar'sdecision by Tracey GunnOn the papers: At AucklandJudgment: 19 December 2019JUDGMENT OF POWELL JThis judgment was delivered by me on 19 December 2019 at 11 a.m. pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] Tracey Gunn, a barrister, seeks review of a Registrar's decision pursuant tor 2.11 of the High Court Rules 2016.[2] The application has been brought following the 6 June 2019 appointment ofMs Gunn as counsel for the child in a High Court appeal; Ms Gunn having previouslybeen counsel for the child in the related proceedings in the Family Court.[3] The review concerns the hourly rate that should be paid to Ms Gunn. In a letterconfirming Ms Gunn's appointment, the Deputy Registrar advised on 6 June 2019:On 6 June 2019 you accepted appointment by the Court to act as Counsel forthe child as referred to in section 7 of the Care of Children Act 2004 inproceedings under the Protection of Personal and Property Rights Act 1988.The rates applying for attendances for this type of appointment are usually inline with those applying in the Family Court (in terms of the 21 December2005 "Practice Note: Lawyer for the child: Selection, appointment and othermatters" of Judge P F Boshier, (Principal Family Court Judge) but allowingfor any special factors that might distinguish the High Court proceeding frommost proceedings that come before the family court.The family Court Practice Note currently sets out the remuneration rates andincludes three levels of rates that can be used when setting the hourly rate forpayment. The rates are as follows:• Level 1$132.89 to $158.44 per hour (GST inclusive).Range to be used in cases where the practitioner appointed has only recentlybeen approved or where no approved lawyer is available, and the lawyerappointed is not on the list of approved lawyers.• Level 2$158.44 per hour (GST inclusive).This fee will be used in the majority of cases.• Level 3$158.44 to $173.78 per hour (GST inclusive).This range will be used to calculate fees:- in cases where superior skills are required;- in cases of extreme urgency;- in cases where there are grave concerns about the immediate safety ofchildren;- in most Hague Convention cases;- in cases where there are allegations of sexual abuse.The outcome of a 2008 review of the criteria applied by Courts for anassignment at the higher rate (Level 3) resulted in the case characteristics tobe included in that assessment being clarified. It was determined that anappointment at the higher rate would occur where a "cluster" (more than one)of the characteristics requiring superior skills described below is present in acase.• substance and alcohol abuse especially the use of methamphetamine;• family violence;• suggestions of mental health issues;• cultural considerations;• ethnicity (interpreter) considerations;• complex or larger families;• self-represented litigants;• parties have gang affiliations; and• frequent changes of lawyerPlease provide an estimate of the total time you will need to spend on thismatter and the total cost of the anticipated attendances. Your estimate shouldinclude details of any special factors that might be relevant to your intendedcharge out rate.[4] In a response dated 17 October 2019, Ms Gunn, somewhat belatedly, queriedthe rates quoted and stated:I note in your letter of 6 May 2019 that you have referred to Family Courtrates. With respect, these are no longer Family Court proceedings but are inthe High Court. The usual practice is for counsel to negotiate the rate with theCourt directly. It is my suggestion that the hourly rate is set in this matter atthe rate of $220 per hour plus GST.[5] The Deputy Registrar responded the next day:Thank you for your letter of 17 October 2019.My letter of 6 May advised that the rates applying for attendances for this typeof appointment are usually in line with those applying in the Family Court asper the terms of the 21 December 2005 "Practice Note: Lawyer for the child:Selection, appointment and other matters" of Judge P F Boshier, PrincipalFamily Court Judge. but allowing for any special factors that might distinguishthe High Court proceeding from most proceedings that come before the familyCourt.I would be prepared to approve the top of the Level 3 rate of $173.78, for thisHigh Court appeal given that this case does require counsel at a senior level;there was some urgency, the child was overseas and considering culturaldifferences. I cannot consider above and beyond that given that this is not aHague convention case, there are no allegations of sexual abuse and theimmediate safety of the child was not a grave concern. There were no otherdistinguishing factors about this case.Please provide an estimate of the total time you will need to spend on thismatter and the total cost of the anticipated attendances. Your estimate shouldinclude details of any special factors that might be relevant to your intendedcharge out rate.Your estimate of your fees should be marked for my attention. Your hourlyrate and the maximum for your costs will be set when that reply is received.[6] This resulted in the present review with Ms Gunn submitting:Practice Notes in the Family Court that detail remuneration have no relevancein the High Court. They are entirely different courts. It is the practice in theHamilton Family Court that every Lawyer for Child file is billed at the toprate. Accordingly, in you offering me the top rate in the High Court, there isabsolutely no differentiation between what I would be paid in the FamilyCourt and the High Court. As your letter points out, there are issues in relationto this particular case that required the appointment of Senior Counsel. Inparticular, there had been criticism of the earlier Lawyer for Child in theFamily Court and Senior Counsel was required. I would request that youreview the rate that I can bill this at so that I can progress this matter.Discussion[7] As Potter J noted, although this Court appoints counsel for the child as a matterof course the basis for doing so is less than satisfactory.1 It is clear that the appointmentof counsel for the child in the Family Court does not continue through to an appeal inthis Court,2 nor do the relevant statutes provide for such appointments to be made.3 Itis however clearly appropriate that such appointments are made in order that this Courtcan be satisfied that the interests of children in an appeal can be properly considered1 M & D v S [2008] NZFLR 120 (HC).2 At [57].3 At [58]-[69].and accommodated. The result is that current appointments must be seen as anexercise of the appointing Judge's inherent jurisdiction.4[8] It follows, as Ms Gunn submitted, that the Family Court practice note is not inany way determinative of the remuneration payable for counsel acceptingappointments as counsel for the child in a High Court appeal. It follows that there isno basis for the Registry to conclude the maximum hourly rate that can be paid tocounsel for the child appointed in the High Court is limited to that set out in thePractice Note: Lawyer for the Child: Selection, Appointment and Other Matters issuedby the Principal Family Court Judge in 2011 ("2011 Practice Note"), relied upon bythe Deputy Registrar in this case.5[9] Instead, it must be the case that any appointment by a Judge of this Courtimpliedly assumes that a reasonable fee will be paid, having regard to all thecircumstances of the appointment, noting that the type of proceedings where counselfor the child are likely to be appointed by this Court are appeals from the Family Court,which are of course civil proceedings conducted pursuant to the High Court Rules2016.[10] As to what a reasonable fee might be, I have considered and rejected both therates set out in the 2011 Practice Note and the relevant legal aid rates for familyproceedings in the High Court. First, it is apparent that both rates have not beenreviewed for a very long time, since March 2011 and July 2009 respectively. Thesedelays are significant, noting that the Producer Price Index (PPI) has increased bysome 39.1 per cent since 2009 and 33.8 per cent since 2011.6 Secondly, it is by nomeans clear on what basis the hourly charge out rates were justified at the time, withthe legal aid rates in particular having been as a matter of policy kept artificially lowfor decades, leading to a dwindling number of practitioners accepting legal aidassignments,7 including in relation to family proceedings.4 At [68]-[71].5 Inquiries have shown the same approach is taken by the Auckland Registry.6 See Statistics New Zealand Business Price Indexes: September 2019 Quarter (November 2019,Wellington).7 See Criminal Bar Association of New Zealand Inc v Attorney-General [2013] NZCA 176 at [138];[2012] NZHC 1572 at [125] in relation to the criminal jurisdiction; and, more generally, "LegalAid: The Problems and Issues" (2018) 923 LawTalk 77.[11] A far better basis for determining a reasonable hourly rate is the scale costs setout in the High Court Rules. While the costs regime is designed to achieve certaintyfor parties with regard to the amount of costs able to be recovered by a successfulparty8 it is nonetheless based upon a notional daily recovery rate so as to enable thesuccessful party to recover approximately two thirds of the costs incurred.9 Thisrecovery rate is determined by the High Court Rules Committee made up of membersof the judiciary, the profession and the Ministry. The Committee has recently reviewedthe daily rate – the Appropriate Daily Recovery Rate – taking into account changes tothe PPI since the rate was last reviewed in 2009. The new rate took effect from1 August 2019.10 The appropriate daily recovery rates are now:Category of proceedings (r 14.3) Appropriate daily recovery rate (r 14.4)($)1 1,5902 2,3903 3,530[12] Although the appropriate daily recovery rate is not expressed as an hourly rate,such can be calculated given the number of hours in a court day can be determinedwith precision (5.25 hours) and is directly recoverable.11[13] Taking the median rate (the appropriate daily recovery rate on a 2B basis)12and allowing for the fact that the recovery is calculated as being two thirds of a8 In accordance with the general desirability of the award of costs being expeditious and predictable:High Court Rules 2016, r 14.2(1)(g). See further Rachael Schmidt-McCleave "Costs" in PeterBlanchard (ed) Civil Remedies in New Zealand (2nd ed, Brookers, Wellington, 2011) 763 at[21.2.1].9 See Rules Committee Minutes of the Meeting of 2 October 2017 (Judicial Office for Senior Courts,Wellington, 13 October 2017) at 3: "Asher J observed that the "two-thirds" rule is a fiction, as therule more properly delivers about one-third. The costs regime has not kept up with actual costs.Even when it was initially set-up it did not achieve two-thirds."10 High Court Amendment Rules 2019, r 11.11 High Court Rules 2016, sch 3 item 57. Note that the reference to quarter days confirms that theappropriate daily recovery rate is limited to the court day and does not include preparation time orother attendances.12 It is noted that, by definition, counsel who have been appointed Lawyer for the Child in a FamilyCourt proceeding are senior Family Court practitioners. Specifically, Part 9 of the 2011 Practicenote confirms that counsel for the child are only appointed to a panel of Lawyer for the Child ifthey possess a minimum of five years practice in the Family Court and are approved by a panel asprovided for in the 2011 practice note. The full list of criteria for appointment as a lawyer for theChild are set out in 9.5 of the 2011 Practice Note is as follows:notional reasonable charge out rate for civil work in the High Court, a notionalreasonable charge out rate is $682.85.13 As this rate effectively includes GST, afterGST is subtracted the GST exclusive rate is $593.78 per hour.[14] On any basis therefore, it can be seen that the $220 per hour sought byMs Gunn is eminently reasonable and should be paid in this case.[15] Given my conclusions it is clearly appropriate that a more structured review beundertaken to ensure that the reasonable fees of all counsel appointed by theHigh Court are met and that counsel are not unreasonably benchmarked to out of dateand inapplicable guidelines such as the 2011 Practice Note. In addition, the analysisshows that the legal aid rates for any form of civil work in the High Court bearabsolutely no relationship to the reasonable costs of counsel. In such circumstancesand leaving aside other inherent flaws in the current legal aid system,14 it is notsurprising that there are a lack of providers able to undertake legal aid assignmentsacross the jurisdiction of this Court, not only conventional civil proceedings, but alsofamily proceedings, immigration and Accident Compensation.[16] Quite clearly there can be no basis for artificially restricting the charge out ratesof certain types of counsel appearing before this Court when considerable work hasalready been done by the High Court Rules Committee to calculate the reasonablecosts of counsel. There can be no basis for differentiating between different types of(a) a current Practising Certificate;(b) the ability to exercise sound judgement and identify central issues;(c) a minimum of five years practice in the Family Court;(d) proven experience in running defended cases in the Family Court;(e) a sound knowledge of the Care of Children Act 2004;(f) an understanding of, and an ability to relate to and listen to, children of all ages;(g) good people skills and an ability to relate to and listen to adults;(h) sensitivity and awareness of gender, ethnicity, sexuality, cultural and religious issues forfamilies;(i) relevant qualifications, training and attendance at relevant courses;(j) personal qualities compatible with assisting negotiations in suitable cases and working co-operatively with other professionals;(k) independence; and(l) knowledge and understanding of the Practice Note: Lawyer for the child: Code of Conductand "Best Practice Guidelines for Lawyer for the Child".13 $2,390 multiplied by 150 per cent, divided by 5.25, equals $682.85.14 Including the general position that legal aid is a loan that must be repaid: Legal Services Act 2011,pt 2 subpt 4.lawyers coming before this Court as to do so would simply serve to aggravate existingaccess to justice issues and is otherwise unfair.Decision[17] The application for review is allowed. Ms Gunn is to be paid at a rate of$220.00 per hour (GST exclusive)._______________________________Powell J