YAN SHI v A PROFESSIONAL CONDUCT COMMITTEE OF THE PHYSIOTHERAPY BOARD OF NEW ZEALAND [2021] NZHC 1550

YAN SHI v A PROFESSIONAL CONDUCT COMMITTEE OF THE PHYSIOTHERAPY BOARD OF NEWZEALAND [2021] NZHC 1550 [25 June 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-000401[2021] NZHC 1550IN THE MATTER OF an appeal pursuant to s 106(3) of the HealthPractitioners Competence Assurance Act2003BETWEEN YAN SHI(also known as KEVIN YAN SHI SHIEL)AppellantAND A PROFESSIONAL CONDUCTCOMMITTEE OF THE PHYSIOTHERAPYBOARD OF NEW ZEALANDRespondentHearing: 29 March 2021Counsel: P Hamlin for AppellantJ Coates for RespondentJudgment: 25 June 2021JUDGMENT OF GRICE JContentsParaBackground [3]Factual background [3]Procedural history [7]Decision of the Tribunal [12]Penalty [12]Costs [16]Law on appeals [22]Issue One: appeal against the penalties imposed [30]Relevant law [30]Issue Two: cross-appeal on costs [85]Analysis [97]Result [134]Costs in this appeal [136][1] This is an appeal against a decision by the Health Practitioners DisciplinaryTribunal (the Tribunal), which censured the appellant, suspended his physiotherapistregistration for nine months and imposed conditions if he is to resume practice(the Penalties).1 The charge was laid by the respondent, a Professional ConductCommittee (PCC) appointed by the Physiotherapy Board of New Zealand (PBNZ),with the Tribunal,2 following the appellant's conviction on three charges of forgery3and three charges of dishonestly using a document.4[2] The respondent cross-appeals against the Tribunal declining to make an orderfor costs against the appellant. The appellant was in receipt of legal aid.BackgroundFactual background[3] On 7 March 2013 and 26 May 2015, Mr Shi (also referred to as Mr Shiel duringthe District Court hearing) supplied falsified, untrue and misleading documentation toHSBC Bank (HSBC) in relation to three sets of mortgage applications. In the firstapplication, Mr Shi attached a bank statement that had been altered to remove anyreference to his loans from two different financial institutions.[4] In the second application, Mr Shi provided financial statements for hiscompany, Care Physio Ltd, which had been altered to overstate the amount of fees thecompany had received to falsify the salary Mr Shi had received from the company.These applications resulted in two separate loans being approved by HSBC, totalling$1,508,400. Mr Shi intended to use these funds for property investments.[5] On 22 May 2015, Mr Shi made a mortgage application for $948,000 to theSouthland Building Society (SBS) and supplied fraudulent bank account statements.These had been altered to overstate the balance of the accounts. He also attachedfinancial statements for the company, Care Physio Ltd, which had been altered to1 Professional Conduct Committee v Shi Health Practitioners Disciplinary Tribunal1099/Phys20/477P, 16 July 2020 ["Penalty Decision"].2 Pursuant to s 100(1)(c) of the Health Practitioners Competence Assurance Act 2003.3 Crimes Act 1961, s 256(1); maximum penalty of 10 years' imprisonment.4 Section 228(1)(b); maximum penalty of seven years' imprisonment.overstate the fees received and to falsify the salary Mr Shi received. This mortgageapplication was declined.[6] Mr Shi repaid the loans, which HSBC had foreclosed when the frauds werediscovered.Procedural history[7] On 9 April 2018, Mr Shi accepted the summary of facts and admitted liability.[8] On 18 April 2018, six charges of forgery and dishonestly using a documentwere laid against Mr Shi.[9] On 26 April 2019, Judge Paul in the District Court sentenced Mr Shi to11 months' home detention.5[10] On 26 December 2019, the PCC made a determination to lay a charge beforethe Tribunal against Mr Shi under s 100(1)(c) of the Health Practitioners CompetenceAssurance Act 2003 (HPCA).[11] On 16 July 2020, the Tribunal issued its decision and imposed the penalties.Decision of the TribunalPenalty[12] The Tribunal noted the aggravating factors included that the offending wasdeliberate and orchestrated and that it involved significant sums of money althoughthere was no loss to the banks. A further aggravating factor was that, when speakingto the pre-sentence report writer, Mr Shi had said he was only assisting his father toget the loans, and that he did not suspect anything was wrong until he was arrested.This assertion was inconsistent with Mr Shi's guilty plea and was designed tominimise his offending. The sentencing Judge took a similar view.65 R v Shi [2019] NZDC 13298 ["Sentencing Decision"].6 Penalty Decision, above n 1, at [46]. See Sentencing Decision, above n 5, at [10].[13] The Tribunal did note that the offending did not directly relate to Mr Shi'spractice as a physiotherapist except insofar as it went to the honesty and integrityexpected of a health professional. Information directly relating to Mr Shi'sprofessional practice – that is, his earnings as a physiotherapist – was falsified.Although the funding being sought from the bank was for private transactions,the Tribunal found "there is a significant overlap with professional responsibility".7 Italso noted that physiotherapists rely on public funding, including theAccident Compensation regime, which is a funding scheme that "relies heavily on thehonesty and integrity of the physiotherapist seeking funding".8 The Tribunalconcluded that such reliance could not now be placed on Mr Shi.[14] Nevertheless, the Tribunal was of the view that this was not a case that calledfor cancellation of registration, but a suspension would be appropriate. The Tribunalacknowledged Mr Shi had paid a penalty by virtue of the sentence imposed in theDistrict Court. The purpose of the suspension would be to:9 allow time for Mr Shi to reflect on his professional obligations highlightedby this case as to the need for honesty and integrity in his dealings in allaspects of his life including his professional work.[15] The Tribunal also made an order for censure to reflect its "disquiet with theactivity". It ordered the following conditions be imposed when Mr Shi resumespractice:10a) That he be supervised in terms of the HPCA Act by a supervisorapproved by the PBNZ for 18 months from resumption of practice athis expense with a focus on financial and legal compliance aspects ofhis practice. The supervisor is to report to the PBNZ at least 3 monthlyor more often if so directed by the PBNZ. The supervisor couldrequire a physiotherapy practice certification against an ACC DefinedMinimum Scope Certificate or the comprehensive achievement of theQuality Standards and Certification Certificate with Allied HealthStandards.b) That within 12 months of resumption from practice Mr Shidemonstrate to the satisfaction of the PBNZ that he has competencein law and ethics involved in the running of his practice, includinghaving attended at his cost such course or training on ethics and7 Penalty Decision, above n 1, at [52].8 At [53].9 At [57].10 At [96].professional conduct as is fixed by the PBNZ. This may be aphysiotherapy practice certification against an ACC DefinedMinimum Scope Certificate or comprehensive achievement of theQuality Standards and Certification Certificate with Allied HealthStandards referred to above.Costs[16] Under s 101 of the HPCA the PCC sought at least 50 per cent of the costs andexpenses of the PCC and resourcing of the Tribunal. It noted that the PCC's"expected costs" were $33,000, with Tribunal resourcing estimated at $8,215, sototalling $41,215.11[17] Mr Shi said he was in receipt of legal aid and that no exceptional circumstancesarose, which would allow a costs order to be made against a legally aided person.The Tribunal accepted that Mr Shi had been granted legal aid regarding legal costs forrepresentation before the Tribunal.12[18] The first issue raised by the PCC in relation to legal aid was that thedisciplinary proceedings did not constitute "civil proceedings", so the prohibition onawarding costs against a legally aided person did not apply. The Tribunal referred tothe definition under s 4 of the Legal Services Act 2011 (LSA). It noted s 4 set out anon-exhaustive list and did not specifically mention proceedings before the Tribunal.However, it concluded the Tribunal was an "administrative Tribunal" or"judicial authority" under s 7(1)(e)(v) of the LSA. The Tribunal concluded that itfitted under either definition.13 The Tribunal went on to reject the submission that acosts order under s 101 of the HPCA was different to a costs order against a litigant incourt.[19] The Tribunal held that there were no "exceptional circumstances" as arerequired under s 45(3) before a costs order can be made against a person in receipt oflegal aid. So, no costs order was made in favour of the PCC or for the Tribunal's costand expenses.11 Penalty Decision, above n 1, at [63].12 At [68].13 At [74].[20] On quantum the Tribunal noted that the PCC could seek relief under s 46,which provides that a successful litigant who was not awarded costs against alegally aided party may apply to the Legal Services Commissioner, based on an orderthat the Court (or administrative Tribunal/judicial authority) would have ordered.[21] The Tribunal noted the starting point in these types of cases was a 50 per centcontribution to costs. Given the means of Mr Shi and applying a credit for his havingfacilitated the hearing of this charge and his cooperation which resulted in costsavings, the Tribunal concluded that a sum of 30 per cent of the $41,215, being$12,364, would have been ordered if Mr Shi had not been a legally aided party.Law on appeals[22] A party may appeal a decision of the Tribunal against any finding made unders 100 and any order made under s 101 of the HCPA.14[23] An appeal is by way of rehearing. The appellate Court may confirm, reverse,or modify the decision or order. It may also make any other decision or order thatthe Tribunal could have made and may refer the matter back for reconsideration.15 Theappellate Court must not review any (or any part) of a decision or order not underappeal. Section 109 of the HCPA governs the procedure on appeal:109 Procedure on appeal(1) An appeal under this Part must be heard as soon as is reasonablypracticable after it is lodged.(2) An appeal under this Part is by way of rehearing.(3) On hearing the appeal, the appropriate court—(a) may confirm, reverse, or modify the decision or orderappealed against; and(b) may make any other decision or order that the person or bodythat made the decision or order appealed against could havemade.14 Health Practitioners Competence Assurance Act 2003, s 106(2)(a) and (b).15 Section 111.(4) The court must not review—(a) any part of a decision or order not appealed against; or(b) any decision or order not appealed against at all.[24] The appellate Court's decision is final but subject to an appeal on question oflaw,16 for which s 113 provides:113 Appeal on question of law(1) A party to an appeal under this Part may appeal against anydetermination of law arising in the appeal.(2) If the appeal is—(a) from the District Court, it must be made to the High Court:(b) from the High Court, it must be made to the Court of Appeal.(3) The appeal must be heard and determined in accordance with theappropriate rules of court.(4) Part 6 of the Criminal Procedure Act 2011 applies to the appeal—(a) so far as it is applicable and with all necessary modifications;but(b) only so far as it relates to appeals on questions of law.(5) Subsection (4) overrides subsection (3).[25] There is presently some debate about which standard of appeal applies:whether it is an appeal against discretion (and so the more limited appeal approach setout in May v May),17 or a merit-based Austin, Nichols & Co Inc v Stichting Lodestar(Austin)18 approach. The former approach was supported by Collins J in theHigh Court decision of Roberts v Professional Conduct Committee of the NursingCouncil of New Zealand,19 which the respondent noted is the leading decision inrelation to the issue of penalties under s 101. The latter Austin approach was adoptedby a full bench of the High Court in Sisson v Standards Committee (2) of the16 Health Practitioners Competence Assurance Act 2003, s 110.17 May v May (1982) 1 NZFLR 165 (CA).18 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 ["Austin"].19 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC3354 ["Roberts"].Canterbury-Westland Branch of the New Zealand Law Society.20 That approach hadfound favour in recent times.[26] The Austin approach requires that the appeal be conducted by way of rehearing.If an appellate Court comes to a different view on the evidence, the tribunal necessarilywill have erred and the appeal must be allowed. However, it is for the appellant toshow that an error has been made. In assessing whether an error has been made theappellate Court must take into account any advantages the tribunal may have had, suchas assessing credibility on contested oral evidence. The appellate Court shouldexercise "customary caution" in that case.21[27] The PCC submits the May v May approach is the proper approach but concededthe Austin approach is a reasonable one to take in view of the divergence of High Courtauthority and until the matter is determined by the Court of Appeal on an appropriatecase.[28] A pragmatic course adopting the Austin approach was agreed to by counselhere in the spirit of the comments by Downs J in Emmerson:22[96] As against all this, the authorities since Hart have consistently heldpenalty appeals are general appeals. To now hold otherwise would introducethe uncertainty warned of in Rabih and TSM. With considerable reluctance, Iconclude penalty appeals are to be approached as general appeals; it would beunhelpful to swim against the tide. Consequently, it is not necessary forDr Emmerson to identify reversible error in the sense described by May v Mayand its progeny. Rather, it is sufficient if Dr Emmerson persuades me adifferent penalty should have been imposed.[97] Mr Muston approached this task by identifying alleged errors in theTribunal's approach. Given the discussion above, that was unnecessary, albeitnot wrong either: for all the conceptual differences between general appealsand appeals against discretion, doubt attaches to whether practical differencesare that great. The following analysis track's Mr Muston's approach, and thenapproaches the issue on an Austin Nichols basis.20 Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand LawSociety [2013] NZHC 349, [2013] NZAR 416.21 Austin, above n 18, at [13].22 Emmerson v A Professional Conduct Committee of the Medical Council of New Zealand [2017]NZHC 2847; citing Hart v Auckland Standards Committee (1) of New Zealand Law Society [2013]NZHC 83, [2013] 3 NZLR 103; Rabih v A Professional Conduct Committee of the Dental Council[2015] NZHC 1110; and TSM v Professional Conduct Committee [2015] NZHC 306.[29] I now turn to consider the issues on appeal. The first is as to penalty and inparticular whether suspension was appropriate. The second is as to costs.Issue One: appeal against the penalties imposedRelevant law[30] The charge was brought under s 100(1)(c) of the HPCA, which provides:23100 Grounds on which health practitioner may be disciplined(1) The Tribunal may make any 1 or more of the orders authorisedby section 101 if, after conducting a hearing on a charge laidunder section 91 against a health practitioner, it makes 1 ormore findings that—(c) the practitioner has been convicted of an offence that reflectsadversely on his or her fitness to practise;[31] Where s 100 applies, the Tribunal may make any of the following orders:24(a) order that the registration of the health practitioner becancelled:(b) order that the registration of the health practitioner besuspended for a period not exceeding 3 years:(c) order that the health practitioner may, after commencingpractice following the date of the order, for a period notexceeding 3 years, practise his or her profession only inaccordance with any conditions as to employment,supervision, or otherwise that are specified in the order:(d) order that the health practitioner be censured:[32] The appellant says that the Tribunal erred in its determination of the penalty.The appellant accepts his conduct fell short of the requirements set out inPhysiotherapy Code of Ethics and Professional Conduct. However, he says theconduct was not connected to his practice and did not affect the safety of his patients.23 Under s 100(2) of the Health Practitioners Competence Assurance Act 2003, the Tribunal maymake a finding under s 100(1)(c) only if the conviction has been entered by any court for anoffence punishable by imprisonment for a term of three months of longer.24 Health Practitioners Competence Assurance Act 2003, s 101(1).Mr Shi also says the case is unusual, as the forgery offences were not committed inthe course of his practice.[33] The PCC pointed to cases that had elements similar to this case, in which theTribunal cancelled the registration of health professionals based on convictions fordishonesty.[34] In particular, Mr Coates referred to Aldworth,25 a decision of theHealth Practitioners Disciplinary Tribunal in relation to a registered nurse.Ms Aldworth was convicted of money laundering. The offending had occurred whenher husband was in jail and she was assisting him with the transfer of moneyapparently obtained as a result of her husband's methamphetamine dealings.26Ms Aldworth was convicted of the offences and charged before theDisciplinary Tribunal on the basis that her conviction reflected adversely on her fitnessto practice as a registered health practitioner. The Tribunal considered whether,despite the serious nature of the conviction, it might have been possible to consider apenalty short of cancellation. The practitioner had an unblemished career in nursingbefore this offending.27 However, the practitioner's offending was so serious andsustained that the Tribunal determined that it was untenable to permit her to retain herregistration. The Tribunal indicated this was not so much to punish the practitionerbut rather to ensure the protection of the public and to maintain professional standardsfor the profession of nursing. The practitioner's registration was cancelled, and shewas censured.28 The offending occurred over 2013 and 2014 and involvedMs Aldworth receiving funds in the vicinity of $341,000.[35] The PCC also pointed to Condon,29 a decision of the Disciplinary Tribunal inrelation to an enrolled nurse. Ms Condon had taken a colleague's credit card. It wasnot clear whether the card had been taken from their mutual place of work.Ms Condon had been found guilty of dishonesty using the card for a total of $1,222.47.25 A Professional Conduct Committee v Aldworth 979/NUR17/407P ["Aldworth"].26 At [6].27 At [38].28 At [39] and [40].29 A Professional Conduct Committee v Condon 23/NUR05/13P ["Condon"].[36] The Tribunal accepted Ms Condon had already been punished in theDistrict Court. She was sentenced to 300 hours of community work in respect of eachof the matters to be served concurrently and ordered to pay reparation of $1,222.47.The Judge noted he would have imposed imprisonment had Ms Condon continued tomaintain her plea of not guilty in the face of compelling evidence. The Judge hadregard to the fact Ms Condon was prepared to make amends and reparation was to bemade.[37] The Tribunal noted that the conduct was serious but it paid special regard tothe fact Ms Condon was a first time offender.30 It noted that "both honesty andtrustworthiness are an integral part of the practice of any nurse" and Ms Condon'sactions brought discredit on the nursing profession.31 Her colleague, the victim, wasa registered nurse as well. The Tribunal noted that even if Ms Condon's actions hadnot occurred within the workplace, it would have fallen within the definition of"professional misconduct".32[38] The Tribunal came to the unanimous view that Ms Condon's registration as anenrolled nurse had to be cancelled. It had considered imposing a penalty less severethan cancellation, including the option of suspension or conditions on registration.However, it concluded the offending was so serious the Tribunal was bound to imposethe maximum penalty available under it.33[39] Mr Coates noted that Condon could be regarded as the "high water" case whenit came to penalties for dishonesty imposed by the Tribunal.[40] Mr Shi placed reliance on Keshvara,34 another decision of theDisciplinary Tribunal. In that case Dr Keshvara had forged the signature of anotherpractitioner on a prescription form to enable him to obtain drugs for his own use froma pharmacy.30 Condon, above n 29, at [33].31 At [33].32 At [28].33 At [35].34 A Professional Conduct Committee v Keshvara 53/MED06/29P ["Keshvara"].[41] Dr Keshvara had a drug addiction. He had a longstanding history of opioidand alcohol dependence.35 His addictions had first come to the Medical Council'sattention nine years earlier when he was suspended from practice as a doctor forfour months. He voluntarily restricted himself from prescribing controlled drugs onhis return to practice.36 In 1999, he had a significant relapse of his narcoticdependency and was convicted of charges under the Misuse of Drugs Act 1975 forforging prescriptions. He had also been convicted of a drink driving offence in 2000.[42] As a result of his various convictions, he was censured, required to pay costsand practice only subject to a series of conditions put in place for three years. Hisprogress was then monitored by the Medical Council's Health Committee until 2003.Under his present conditions of practice, he was required to receive extensive therapyand treatment from an experienced alcohol and drug counsellor.37[43] The Tribunal in that case concluded that the penalties should be designed toprotect the public, maintain professional standards, and provide Dr Keshvara with afinal opportunity to practice medicine.38 It considered removing Dr Keshvara's namefrom the register. However, it concluded that because it had not been suggested thatpatient safety had been compromised that he should be suspended for 12 months withvarious conditions related to rehabilitation and the maintenance of appropriateprofessional standards. The Tribunal urged the Medical Council to put in placearrangements to ensure that if Dr Keshvara did return to practice he would be carefullymonitored and assessed for the balance of his career.39[44] In Winefield,40 the High Court dealt with an appeal from a decision of theDisciplinary Tribunal. Mr Winefield was a registered pharmacist and had beenconvicted of three charges of using a document with intent to defraud for the purposeof obtaining a pecuniary advantage. He was also convicted of dishonestly using adocument with intent to obtain a pecuniary advantage, six charges of forgery of a35 Keshvara, above n 34, at [32].36 At [32].37 At [43].38 At [57].39 At [56]–[59].40 Winefield v Professional Conduct Committee HC Wellington CIV-2006-485-2225,18 December 2007 ["Winefield"].document (medical prescriptions) and 12 charges of making a false document(medical prescriptions).41[45] Mr Winefield had fraudulently obtained some $10,800 from the governmentfunder, Healthpac, in a variety of ways, but principally by misrepresenting that he haddispensed a subsidised medicine when in fact he had dispensed a non-subsidisedmedicine. Mr Winefield also claimed dispensing fees for other drugs when he was notso entitled.42 Mr Winefield was sentenced to perform 200 hours of community workand pay $20,000 costs. He paid reparation in full to Manatū Hauora,the Ministry of Health, before being sentenced.[46] The Tribunal suspended Mr Winefield's registration for nine months, censuredhim and required him to pay 30 per cent of each of the costs of the enquiry and thehearing by the tribunal, a total payment of $10,927.54.43[47] The Tribunal took into account:44a) the offending occurred as part of Mr Winefield's professional duties as apharmacist;b) it involved repeat offending over a prolonged period;c) the actions were in breach of his professional and ethical obligation;d) the offending involved dishonesty;e) the offending had the potential to adversely affect public confidence in theprofession of pharmacy;f) Mr Winefield involved his staff in offending by giving them instructionsto make false claims (a matter which weighed heavily with the tribunal);andg) his offending represented a breach of the trust and confidence placed inhim by the community.41 Winefield, above n 40, at [2].42 At [3].43 At [7].44 At [15].[48] The mitigating factors referred to by the Tribunal in that case were:(a) that he had been motivated by the needs of his patients, notpersonal gain;(b) that he had already suffered considerable personal and financialcosts as a result of his offending; and(c) that he otherwise had an exemplary record as a practisingpharmacist. He provided a large number of references at thetime of sentencing confirming the extremely high regard inwhich he was held personally and professionally.[49] The High Court there noted the Tribunal had not referred in any detail to themitigating factors. The Court said at least in part the offending was occasioned byMr Winefield's concern for his patients.45 Nevertheless, the Court did not considerthat the failure to refer to those factors could be seen as failing to take account ofrelevant factors as to make the decision wrong.46[50] The Court saw some difficulty in reconciling penalties from earlier decisions.This included a three-month suspension in Young,47 which involved a higher sum thanin Winefield and dispensing prescription medicines to overseas consumers withoutprescriptions for commercial gain. However, the Court did note the underlyingconduct in Young was of unlawful dispensing and not of fraud and dishonesty.48Notwithstanding the scale of Ms Young's commercial venture, she was onlyprosecuted on the basis she had been involved in the unlawful dispensing of medicineson five occasions.49[51] The Court noted the decisions50 that had involved dishonesty associated withobtaining substantial payments from Health Benefits Ltd (the funder) and stealing45 Winefield, above n 40, at [33] and [34].46 At [43].47 Young v Professional Conduct Committee HC Wellington CIV-2006-485-1002, 1 June 2007.48 Winefield, above n 40, at [49].49 At [49].50 At [52]–[53].from an employer pharmacy were comparators.51 The Tribunal concluded that anine-month suspension was appropriate.[52] In this case, Mr Shi will have completed his nine months' suspension by thedate of this judgment. He has not been working during the period of suspension andhas been in receipt of a benefit. Before that he was serving his 11 months ofhome detention. As a result of that he was required to work from one site only,whereas, before he was sentenced to home detention he had been operating hispharmacy from three sites.[53] Mr Shi, to his credit, candidly accepted on the summary of facts filed withthe Tribunal that the "six offences for which he was convicted, both separately andcumulatively, reflect adversely on his fitness to practice as a registered physiotherapistunder s 100(1)(c) of the Act".[54] The District Court Judge noted during sentencing that Mr Shi had repaid theloans to the banks and no loss had occurred to the banks.52 However, the Judge notedthat the PAC Report contained a disturbing explanation that had been proffered by thedefendant. He said that it was his father who was the one who requested the bankdocuments and Mr Shi was only assisting his father but did not suspect that anythingwas wrong until he was arrested. He said the bank documents he provided had beentampered with.53 The Judge noted this was entirely inconsistent with his guilty pleaand inconsistent with the instructions he had given his counsel.[55] In his guilty plea and instructions to counsel, Mr Shi had accepted he was theone who fraudulently tampered with the documents and presented them in support ofhis application for finance. The Judge said he was concerned that Mr Shi was stillminimising his role in the offending.[56] The Judge noted this was not a situation where there had been an abuse of trust.Nevertheless, the motivation had been personal gain. While the offending took place51 Winefield, above n 40, at [53]; Philipiah (Medical Practitioners Disciplinary Tribunal264/03/114C) and Curtis (Pharmaceutical Society's Disciplinary Committee, September 1993).52 Sentencing Decision, above n 5, at [4] and [7].53 At [10].over a two-year period, the Judge accepted it had to be looked at in terms of three setsof transactions only.[57] The Judge noted that Mr Shi was a first offender at age 36 years, had personalresponsibilities for his children, was self-employed, and in business, and would havebeen willing to undertake restorative justice had it been available. An end sentence ofa little over two years' imprisonment was appropriate. The Judge adjusted that, inlight of the purposes of sentencing, to a final sentence of 11 months' home detention.54[58] The summary of facts in the District Court provided more detail concerningthe offending. Mr Shi had provided a copy of the financial statements for his company,Care Physio Limited, signed by him as director, to the SBS. Mr Shi had altered thoseaccounts to inflate the fees he had received by $304,856. The loan was declined bythe SBS. Subsequently Mr Shi submitted a further loan application to the HSBCsupplying the same doctored accounts. The HSBC relied on them and advanced therequested amount to Mr Shi. Mr Shi had also altered bank statements in support ofthose loan applications.[59] The Tribunal noted the available penalties were cancellation of registration,suspension for up to three years, imposition of conditions to his employment,supervision or otherwise for a period not exceeding three years, as well as censure orcosts.[60] It set out the principles applicable to assessing penalties taken from thedecision of Roberts.55 The parties agreed that these were the correct principles uponwhich to base the consideration of penalties. The Tribunal noted it needed to bear inmind:a) What penalty most appropriately protects the public.b) The important role of setting professional standards.c) A punitive function (although this is not the principal purpose behind inthe order but may be a secondary consequence).d) Rehabilitation of the health professional.54 Sentencing Decision, above n 5, at [15]–[18].55 Roberts, above n 19.e) That any penalty imposed is comparable to other penalties imposed uponhealth professionals in similar circumstances.f) Assessing the health practitioner's behaviour against the spectrum ofsentencing options that are available and trying to ensure that themaximum penalties are reserved for the worst offenders.g) An endeavour to impose a penalty that is the least restrictive that canreasonably be imposed in the circumstances.h) Whether the penalty proposed is fair, reasonable and proportionate in thecircumstances presented.[61] The Tribunal said that the primary purpose of cancelling or suspendingregistration was to protect the public although there was a punitive element.Cancellation was more punitive than suspension and the choice between the twoturned on what was proportionate. Suspension implied a conclusion that cancellationwould have been disproportionate, and suspension was apt where there was "somecondition affecting the practitioner's fitness to practise which may or may not beamenable to cure". Finally, it said suspension ought not to be imposed "simply topunish".56[62] Citing Patel,57 the Tribunal noted the purpose of disciplinary proceedings wasto: enforce a high standard of propriety and professional conduct; to ensurethat no person unfitted because of his or her conduct should be allowed topractise the profession in question; to protect both the public and theprofession itself against persons unfit to practise; and to enable theprofessional calling, as a body, to ensure that the conduct of membersconforms to the standards generally expected of them [63] There was no dispute about the aggravating and mitigating features, which hadbeen referred to by the Tribunal. The aggravating features included:(a) The deliberate and orchestrated offending in the three applications.(b) The applications were two years apart.56 Penalty Decision, above n 1, at [42]; citing A v Professional Conduct Committee [2008] NZHC1387 at [81].57 Patel v Dentist Disciplinary Tribunal HC Auckland AP77/02, 8 October 2002; citingEichelbaum CJ in Dentice v Valuers Registration Board [1992] 1 NZLR 720 at 724–725.(c) Significant sums of money were involved in the three applicationsincluding the two that were finally approved. The Tribunal noted therewas apparently no loss to the bank but that may have been fortuitousbecause of the appreciation of property values. It had no evidence onthis point.(d) The explanation given by Mr Shi to the Corrections officer blaming hisfather caused concern that Mr Shi was still minimising his role in theoffending.[64] The Tribunal noted the mitigating factors referred to by the PCC and thepersonal factors that had been referred to by counsel for Mr Shi. These included thatit was Mr Shi's first brush with the disciplinary process, and he had cooperated fullywith the process. It also noted a period of suspension would have financialconsequences for him and his dependent family. He was the solo father of four youngchildren.[65] The Tribunal concluded this was not a matter for cancellation of registration asthat would be out of proportion to the totality of the circumstances and inconsistentwith other Tribunal cases.58 However, it took the view that suspension was called for.The Tribunal acknowledged that Mr Shi had already paid the penalty under thesentence imposed by the criminal court and it did not seek to penalise him in thatcontext. It said:59The purpose of any suspension would, when combined with conditionsordered, allow time for Mr Shi to reflect on his professional obligationshighlighted by this case as to the need for honesty and integrity in his dealingsin all aspects of his life including his professional work.[66] The Tribunal said that ACC relied heavily on the need for a physiotherapist tobe trustworthy in order to ensure claims were made accurately and honestly. Mr Shihad been asked about this at the interview he had had with the Tribunal panel. He hadsaid that ACC claims were handled by his receptionist using a proprietary computer58 Penalty Decision, above n 1, at [42]; citing A v Professional Conduct Committee [2008]NZHC 1387 at [56].59 At [57].programme. A Tribunal member pointed out that nevertheless it was Mr Shi who wasmaking the judgement call as to whether a claim was properly made against ACC ornot. The delegation of administrative matters to staff did not alter the fact that theACC claim system was one of high trust and reliance on the relevant practitioner.[67] The Tribunal noted that this case was not as serious as the Aldworth case wherecancellation was ordered. It also referred to Kong.60 Dr Kong had been convicted andsentenced on a number of charges of dishonestly using a document with intent toobtain a pecuniary advantage.61 The offences involved Dr Kong defrauding theNew Zealand government by falsely representing that patients were eligible forcapitation based funding when they were not. Dr Kong was sentenced in theDistrict Court to 12 months' home detention and 400 hours' community work. Thefraud had occurred over a period in excess of two and a half years. The offending wasdone regularly over days, weeks and months. The amount of the fraud was$183,134.59.62 Dr Kong had acknowledged that the conduct set out in the agreedstatement of facts amounted to professional misconduct and admitted that the conductreflected adversely on his fitness to practice as a medical practitioner.63[68] In mitigation for Dr Kong it was pointed out that the offending was out ofcharacter and represented a substantial fall from grace for the practitioner. He hadnumerous supportive references, there was no material risk of reoffending as Dr Konghad showed insight into his problems, he was cooperative with the PCC, and theMedical Council had allowed him to continue practising following his conviction onvarious strict conditions including counselling, supervision and having no financialmanagement interest in any practice in which he worked.64[69] The Tribunal censured Dr Kong and suspended him from practice for a periodof 12 months. The period of supervision under conditions was not set out in the60 A Professional Conduct Committee v Kong 442/MED11/181P ["Kong"].61 At [1].62 At [4].63 At [5].64 At [20].decision.65 Section 101(1)(c) says that after commencing practice the Tribunal mayorder the practitioner to practice only in accordance with any conditions as toemployment, supervision or otherwise as specified in the order for a period notexceeding three years.[70] The Tribunal also referred to Chiew.66 Mr Chiew was a pharmacist who forgeddocuments to make claims for benefit subsidies in relation to uncollected prescriptionmedicine.67 Mr Chiew accepted that the convictions reflected adversely on his fitnessto practice and amounted to professional misconduct. Mr Chiew had falsified recordsand faced 130 charges brought by the health funder. He made reparations of $220,000and a contribution of $50,000 toward the investigation costs prior to sentencing. Hehad been sentenced to home detention for one year and 300 hours of community work.[71] The Tribunal noted Mr Chiew did not seek to minimise the facts and noted hisvery young age compared with other practitioners who had appeared on similarcharges. He was inexperienced in terms of running a business and suffered from alack of supervision. The Tribunal noted there was pressure on him both personallyand culturally to succeed. It recognised the early admission of wrongdoing as well asthe support for him from his colleagues and the public. The Tribunal noted Mr Chiewpaid full reparation, had previous good character and no record of previousprofessional or criminal misconduct.68 The offending had occurred some years earlierand Mr Chiew had stopped of his own volition.[72] Mr Chiew had stopped the offending, but it took nearly six years before hisdefalcations were detected. The Tribunal concluded that Mr Chiew's registrationshould be suspended for a period of nine months, a censure and an order to pay30 per cent of the costs of the prosecution and the Tribunal.6965 The actual conditions do not appear to have been detailed although the Tribunal referred to theconditions being set out in the Penalty Decision, above n 1, at [60]–[65] and in Kong, above n 60,at [77].66 A Professional Conduct Committee v Chiew 180/PHAR08/95P ["Chiew"]. See Penalty Decision,above n 1, at [58].67 Chiew, above n 66, at [3].68 At [88].69 At [107].[73] The Tribunal in this case said the purpose of the suspension would, whencombined with the supervision conditions ordered, allow time for Mr Shi to reflect onhis professional obligations highlighted by the offending and the need for honesty andintegrity in his dealings including in relation to his professional work.70[74] Standing back, it appears that the nine-month suspension in Mr Shi's case iswithin the range when viewed against similar cases. Related to his practice, Mr Shitried to minimise the offending by blaming his father. This showed lack of insight intothe problem. The Tribunal was also concerned about his attitude when they questionedhim.[75] The offending involved a considerable amount of money. The loan funds weresignificantly higher than the amounts in other cases.[76] It was not a case where there was a breach of trust in that a health funder wasdefrauded, nevertheless, the fraud was perpetuated on a third-party bank for personalgain. It seems Mr Shi had no compunction about inflating his fees on paper for thepurposes of obtaining money from the bank in order that he could make money on theAuckland house market. He accepted it was entirely due to greed that he had obtainedthe loans to buy the property. The loans occurred over a period of two years. Mr Shiwas persistent. When he was turned down from one loan, he used the altereddocuments to obtain another. While it appears that the banks lost no money, that isbeside the point and appears due more to luck and the Auckland house market thananything else.[77] While the fraud was not perpetrated on a patient or a funder, it involved hispractice accounts and inflating his fees. Given the high degree of trust which funders,in particular ACC, place on physiotherapists to make correct claims, Mr Shi'sdishonest behaviour is concerning and reflects badly on the profession. His lack ofinsight apparent to the Tribunal was also troubling.[78] As I have noted, there are differences between Mr Shi's offending and those inthe other cases. However, given the amounts he sought to obtain, Mr Shi's persistence,70 Penalty Decision, above n 1, at [57].the alteration of his own company records to inflate the figures, and his minimisationof his behaviour, I do not consider the Tribunal was in error in imposing thenine months' suspension.[79] In relation to the period of supervision, Mr Hamlin submitted that given thealmost nine months' suspension that Mr Shi has served, he has had plenty of time toreflect on the need for honesty and integrity in his dealings and in particular theimportance of honesty and trustworthiness in his professional practice.[80] However, during that time there is no evidence that Mr Shi has made anyattempts at rehabilitation by, for instance, taking an ethics course. Mr Shi is on abenefit and also has not worked during the period. The supervision will require Mr Shito focus on what he is doing at work and the manner in which he meets therequirements of honesty and integrity in his daily practice. He is to report everythree months over the 18 months of supervision. This involves six reports in thatperiod. The supervisor is also entitled to require a physiotherapy practice certificationagainst an ACC Defined Minimum Scope Certificate or a Quality Standards andCertification Certificate from Allied Health Standards. These directions would appearappropriate in the circumstances.[81] The supervision terms are aimed at Mr Shi gaining a better knowledge of thelegal and accounting requirements and the ethical need for honest dealings. Trainingon ethics and professional conduct is to be fixed by the PBNZ within 12 months of theresumption of practice. Mr Shi takes no issue with that training and it appearsappropriate.[82] In my view, the nine-month suspension is appropriate, as are the requirementsfor training within 12 months, and for supervision. The Tribunal formed a view afterinterviewing Mr Shi that supervision and training were needed. It was better placedto form that view than this Court. I do not consider it made an error in that assessment.[83] Accordingly, the Tribunal was not in error in setting the penalties in thecircumstances.[84] The appeal based on the grounds of error in relation to the suspension andsupervision penalties is therefore dismissed.Issue Two: cross-appeal on costs[85] Mr Shi had been granted legal aid for the costs of his legal representationbefore the Tribunal and possibly for the earlier proceedings involving the enquiry bythe PCC.71[86] The Tribunal noted that under s 101 of the HPCA, it was empowered to orderthe payment of costs and expenses of, and incidental to, the enquiry by the PCC andof the prosecution of the charge by the PCC in the hearing of the Tribunal.72[87] The Tribunal further noted that under s 45 of the LSA, a person who receivedlegal aid for "civil proceedings" could not be the subject of an order for costs: "unlessthe Court is satisfied that there are exceptional circumstances".[88] The Tribunal found there were no exceptional circumstances. Neither partysuggests that there were any exceptional circumstances, but the point of the appealrelates to whether the Tribunal was correct in its interpretation of the LSA's provisions.[89] The PCC says the Tribunal was in error when it refused to make an order forcosts under s 45 of the LSA. This is because it says the disciplinary proceedings arenot "civil proceedings" and for the purposes of the Legal Services Act disciplinaryfunctions and procedures are sui generis. They are described as "civil matters" inthe Act only because they are not criminal matters. But the wording of s 45 of the Act,which is the relevant bar to costs recovery, only applies in relation to aided persons ina "civil proceeding", so it does not bar the recovery of costs from Mr Shi who wasinvolved in a "civil matter" not a "civil proceeding".[90] The Tribunal rejected the submission of the PCC that costs for legalrepresentation before an administrative tribunal or judicial authority were not of thesame nature as the costs against a litigant in a general court. Rather, the Tribunal found71 Penalty Decision, above n 1, at [68].72 At [69].that the nature of legal aid "is that an eligible party to civil proceedings, includingbefore this Tribunal, is not to be the subject of an order for costs unless there areexceptional circumstances mentioned".73[91] The Tribunal also rejected an argument by the PCC that because provisionsrelating to costs orders under the HPCA were under the heading of "Penalty" in thelegislation the position was altered. The Tribunal said a costs order does have apenalising affect, but it is not generally regarded as a penalty except to the extent thatthe cases indicate the practitioner's liability "to contribute to the costs of a successfulprosecution".74[92] The Tribunal noted that the costs of disciplinary proceedings fall on themembers of the profession and the empowerment of a registration authority to recovermonies due from a practitioner under a costs order is a different question from thejurisdiction to make the order in the first place.[93] The Tribunal said otherwise it would have awarded approximately 30 per centof the costs of the PCC and the Tribunal amounting to a total of $41,215 so the sum ofthe award would have been $12,364. It issued a certificate under s 45(5) to thateffect.75[94] Mr Shi supports the finding of the Tribunal. He says that the Tribunal wascorrect in determining that it was an administrative tribunal or a judicial authority forthe purposes of the grant of civil legal aid for legal representation in proceedingsbefore it and the "civil proceeding" versus "civil matter" distinction, for the purposesof costs, is not material.76 Therefore, costs cannot be awarded against him except inexceptional circumstances.[95] Mr Hamlin submitted that Mr Shi did not have the means to pay the costsproposed by the respondent. He had dependent children and was a solo parent73 Penalty Decision, above n 1, at [78].74 At [81].75 At [92].76 At [73]; referring to s 7(e) of the Legal Services Act 2011 regarding proceedings for which legalaid may be granted.responsible for his children's upbringing. His means were already impacted by theloss of income due to COVID-19 lockdown restrictions and the penalties imposed bythe Tribunal. His practice was his only source of income.[96] Mr Hamlin indicated that he had notified the Legal Services Commissionerthat this issue was to come before the Court and had anticipated the Commissionermay wish to consider it. However, at the time of the hearing Mr Hamlin had not heardback from the Commissioner.Analysis[97] The usual rules of statutory interpretation apply here. Interpretationcommences with the text informed by the purpose and the context,77 including thestatutory scheme of the relevant legislation.78[98] Section 3 sets out the purpose of the LSA as follows:The purpose of this Act is to promote access to justice by establishing a systemthat –(a) provides legal services to people of insufficient means; and(b) delivers those services in the most effective and efficient manner.[99] Also relevant is the definition of civil proceedings in s 4 as follows:civil proceedings includes –(a) proceedings under the Marriage Act 1955, the Adoption Act 1955, theDomestic Actions Act 1975, the Property (Relationships) Act 1976,the Family Proceedings Act 1980, the Family Violence Act 2018, theCare of Children Act 2004, the Canterbury Earthquakes InsuranceTribunal Act 2019, or subparts 5, 7, 8 and 9 of Part 1 of theWeathertight Homes Resolution Services Act 2006; and(b) proceedings under the Oranga Tamariki Act 1989, other thanproceedings in respect of an offence; and(c) despite paragraph (b), proceedings under Part 2 of the OrangaTamariki Act 1989 on the ground specified in section 14(1)(e) of thatAct.77 Interpretation Act 1999, s 5. Commerce Commission v Fonterra Cooperative Group Ltd [2007]NZSC 36, [2007] 3 NZLR 767 at [24].78 Westfield (NZ) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597 at [6].[100] Legal services in relation to legal aid means legal advice and representation,includes assistance resolving disputes other than by legal proceedings and takingpreliminary steps and incidental steps to any proceedings.79[101] Insofar as is relevant, s 7 sets out matters for which legal aid may be grantedas follows:7 Proceedings for which legal aid may be granted: civil matters(1) Legal aid may be granted in respect of the following civil matters:(a) civil proceedings in the District Court or the Family Court:(b) civil proceedings in the High Court, the Court of Appeal, orthe Supreme Court:(e) in any case where the Commissioner considers that the caseis one that requires legal representation (having regard to thenature of the proceedings and to the applicant's personalinterest) and considers that the applicant would suffersubstantial hardship if aid were not granted, proceedings in—(i) the Māori Land Court; or(ii) the Māori Appellate Court; or(iii) the Employment Court; or(iv) the Employment Relations Authority; or(v) any administrative tribunal or judicial authority (notbeing a tribunal or an authority in respect of anydecision from which an appeal lies to any of thebodies referred to in any of paragraphs (f) to (j)):(f) proceedings before the Waitangi Tribunal:(g) proceedings before the Social Security Appeal Authority:(h) proceedings before the Tenancy Tribunal:(pa) proceedings before the tribunal under the CanterburyEarthquakes Insurance Tribunal Act 2019:(q) proceedings before the tribunal under the WeathertightHomes Resolution Services Act 2006:79 Legal Services Act 2011, s 4.(r) proceedings before a Tribunal under subpart 2 of Part 2 of thePrisoners' and Victims' Claims Act 2005 in respect of 1 ormore victims' claims under that subpart.(2) To avoid any doubt, subsection (1)(e)(v) applies, without limitation,to the following proceedings:(a) an inquest held by a coroner for the purposes of Part 3 of theCoroners Act 2006; and(b) a hearing of the New Zealand Parole Board (other than one ina proceeding specified in section 6(c)(i)) that concerns anoffender and is a hearing at which a victim may appear as ofright or with the Board's leave.[Emphasis added][102] Sections 45 and 46 form subpart 5 of the Act, which is entitled "Award of costsin civil proceedings". They say:45 Liability of aided person for costs(1) If an aided person receives legal aid for civil proceedings, thatperson's liability under an order for costs made against him or her withrespect to the proceedings must not exceed an amount (if any) that isreasonable for the aided person to pay having regard to all thecircumstances, including the means of all the parties and their conductin connection with the dispute.(2) No order for costs may be made against an aided person in a civilproceeding unless the court is satisfied that there are exceptionalcircumstances.(3) In determining whether there are exceptional circumstances undersubsection (2), the court may take account of, but is not limited to, thefollowing conduct by the aided person:(a) any conduct that causes the other party to incur unnecessarycost:(b) any failure to comply with the procedural rules and orders ofthe court:(c) any misleading or deceitful conduct:(d) any unreasonable pursuit of 1 or more issues on which theaided person fails:(e) any unreasonable refusal to negotiate a settlement orparticipate in alternative dispute resolution:(f) any other conduct that abuses the processes of the court.(4) Any order for costs made against the aided person must specify theamount that the person would have been ordered to pay if this sectionhad not affected that person's liability.(5) If, because of this section, no order for costs is made against the aidedperson, an order may be made specifying what order for costs wouldhave been made against that person with respect to the proceedings ifthis section had not affected that person's liability.(6) If an order for costs is made against a next friend or guardian ad litemof an aided person who is a minor or is mentally disordered, then—(a) that next friend or guardian ad litem has the benefit of thissection; and(b) the means of the next friend or guardian ad litem are taken asbeing the means of the aided person.46 Costs of successful opponent of aided person(1) This section applies if an order is made under section 45 that specifiesthat an aided person would have incurred a liability, or a greaterliability, for costs if that section had not affected his or her liability.(2) If this section applies, the party to the proceedings who is prejudicedby the operation of section 45 (in this section, the applicant) mayapply to the Commissioner in the prescribed manner for payment bythe Commissioner of some or all of the difference between the costs(if any) actually awarded to that party against the aided person andthose to which that party would have been entitled if section 45 hadnot affected the aided person's liability.(3) In considering any such application, the Commissioner must haveregard to the following matters:(a) the conduct of the parties to the proceedings:(b) the court's findings under section 45(2):(c) the hardship that would be caused to the applicant if the costswere not paid by the Commissioner.(4) For the purposes of subsection (3)(c), the Commissioner may requireany person to furnish information on the financial circumstances andneeds of the applicant.(5) If, having regard to the matters specified in subsection (3) and to anyinformation received under subsection (4), and to all relevantcircumstances, the Commissioner considers that any payment shouldbe made by the Commissioner to the applicant, the Commissionermay determine accordingly and must make the payment.(6) The Commissioner may recover any payment made under this sectionfrom the aided person as a debt due to the Commissioner, unless thepayment relates to an order made under section 45(5).(7) The Commissioner may make a payment under this section to alawyer who is not a provider under this Act.[103] The respondent's submission is that the LSA appears to draw a distinctionbetween civil proceedings and civil matters. The heading in subpart 5 refers to theaward of costs in civil proceedings. The costs bar in s 45 applies to an aided personwho receives "legal aid for civil proceedings".[104] As Mr Coates pointed out s 7 sets out the types of matters for which a grant ofaid may be provided for civil matters. Legal aid may be granted in respect ofcivil matters including civil proceedings in the District, Family, High, Court of Appealor Supreme Court.80 However there is no reference to "civil proceedings" in relationto the provision for a grant of aid in relation to an administrative or judicial tribunal.Therefore, those proceedings are "civil matters",81 but do not fall within the subset of"civil proceedings".[105] Mr Coates said that this was deliberate. Disciplinary proceedings are notcivil proceedings. The Supreme Court, in Z v Dental Complaints AssessmentCommittee, said that disciplinary proceedings are not criminal proceedings. It wasconsidering the standard of proof that should apply in professional disciplinaryproceedings.82 The majority found the standard was the civil standard, on the balanceof probabilities, but it is "applied flexibly" according to the seriousness of the mattersinvolved.83 The Chief Justice (who dissented in relation to the standard of proof) madegeneral observations about the nature of professional disciplinary proceedings. Shecommented that they were not civil proceedings nor were they criminal proceedings.The Disciplinary Tribunal (in that case the Dentists Disciplinary Tribunal) was anadministrative body that conducted enquiries and was empowered by statute to imposesanctions. The Chief Justice said the function was one of statutory regulation forwhich an analogy with civil proceedings (which attempts to do relative justice between80 Legal Services Act 2011, s 7(1)(a) and (b).81 Section 7(1)(a)(e).82 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 ["Z v DentalComplaints Assessment Committee"].83 At [112].litigants) "is less convincing than an analogy with criminal process, as the Full Courthad suggested in Gurusinghe".84[106] Katz J in Orlov v National Standards Committee also commented on the"sui generis" nature of the Lawyers and Conveyancers Disciplinary Tribunal.85[107] Mr Coates said the statutory disciplinary process was sui generis and could notbe called a "civil proceeding", although the process may be a "civil matter".[108] The expressed purpose of the LSA is for the promotion of access to justice byestablishing a system that provides legal services to people of insufficient means andfor the delivery of those services in the most effective and efficient manner. Mr Coatessays legal aid was granted and Mr Shi has had access to justice by the provision oflegal representation funded by legal aid. The purpose of the Act has therefore beenmet.[109] The New Zealand Bill of Rights Act 1990 (NZBORA) provides some guidanceon interpretation in situations where a person's rights are curtailed. Section 6 providesthat "[w]herever an enactment can be given a meaning that is consistent with the rightsand freedoms contained in this Bill of Rights, that meaning shall be preferred to anyother meaning". However, first, there is no specific right to legal representation incivil proceedings under the NZBORA;86 and secondly, the interpretation for which therespondent contends does not specifically deny legal representation. Therefore, theNZBORA does not directly provide any guidance here.[110] In addition, Mr Coates points out that the HPCA allows the Tribunal to makeorders for costs and expenses relating to the actual costs to the profession incurred byboth the PCC and the Tribunal. Orders can be sought to cover costs of the investigationby the Health and Disability Commissioner under the Health and DisabilityCommissioner Act, as well as for the enquiry by the PCC, covering the prosecution84 Z v Dental Complaints Assessment Committee, above n 82, at [50]; citing Gurusinghe vPreliminary Proceedings Committee of The Medical Council of New Zealand [1989] 1 NZLR 139(HC).85 Orlov v National Standards Committee [2013] NZHC 1955 at [30].86 The right to counsel relates to criminal proceedings: ss 23 and 24 of the New Zealand Bill ofRights Act 1990.costs incurred by it, as well as the hearing costs of the Tribunal.87 The philosophy isof "user pays". The profession generally funds the disciplinary machinery but apractitioner who is the subject of the disciplinary process has an obligation tocontribute more to fund that machinery.88[111] Mr Coates described the bifurcated process that might be encountered indealing with a complaint about a health professional. The Health and DisabilityCommissioner may refer a complaint it receives to the responsible authority.89 Thatmight be a reference to a PCC who prosecutes the matter. The other path that theHealth and Disability Commissioner may take is to refer the matter to the Directorwho may bring a complaint, on behalf of the complainant, either in theDisciplinary Tribunal or in the Human Rights Tribunal. The Act contemplates that allof these procedures may attract costs, which may be payable by the practitioner if anorder is made by at Disciplinary Tribunal under s 101.[112] Mr Coates also noted that s 101 was headed "Penalties", which furtherindicated that the "costs" imposed on Mr Shi were part of the machinery or substanceof the disciplinary mechanism, rather than something which could be described underthe legal aid provisions as costs for court proceedings.[113] The definition of "civil proceedings" in the Legal Services Act is inclusive:4 Interpretationcivil proceedings includes—(a) proceedings under the Marriage Act 1955, the Adoption Act1955, the Domestic Actions Act 1975, the Property(Relationships) Act 1976, the Family Proceedings Act 1980,the Family Violence Act 2018, the Care of Children Act 2004,the Canterbury Earthquakes Insurance Tribunal Act 2019, orsubparts 5, 7, 8, and 9 of Part 1 of the Weathertight HomesResolution Services Act 2006; and87 Health and Disability Commissioner Act 1994, s 1(f).88 Provision for disciplinary levy to be imposed on every health practitioner is set out under s 131 ofthe Health Practitioners Competence Assurance Act 2003.89 Section 65.(b) proceedings under the Oranga Tamariki Act 1989, other thanproceedings in respect of an offence; and(c) despite paragraph (b), proceedings under Part 2 of theOranga Tamariki Act 1989 on the ground specified in section14(1)(e) of that Act[114] Under s 7, only the District Court, Family Court, High Court, Court of Appeal,Supreme Court and appeals to the Privy Council are specifically referred to as"civil proceedings".[115] Other legislation also specifically refers to proceedings in various courts as"civil proceedings":(a) The Māori Land Court and Māori Appellate Court are establishedunder the Te Ture Whenua Māori Act 1993. It provides for alternativefunding from a special fund as an alternative to legal aid. If that fundis used the party is ineligible for legal aid.90 There is no bar on seekingcosts against a recipient of the funding from the Māori Land CourtSpecial Aid Fund. Those Courts have power to make orders for costs.91The Te Ture Whenua Māori Act refers to "civil proceedings" beingcontinued or commenced in those Courts.92(b) The Youth Court is a division of the District Court.93(c) The Employment Court is established under the Employment RelationsAct 2000. It has power to order costs and expenses.94 That Act refersto proceedings in its jurisdiction as "civil proceedings".95[116] However, the Waitangi Tribunal was established under the Treaty of WaitangiAct 1975 and has no power to award costs. The Tribunal has the powers of acommission of enquiry except the power to award costs.96 The Act does not refer to90 Te Ture Whenua Māori Act 1993, s 98(5).91 Section 79.92 Section 98F(3).93 District Courts Act 2016, s 3(a).94 Schedule 3, cl 19 of the Employment Relations Act 2000.95 Sections 222C–222F.96 Treaty of Waitangi Act 1975, s 8(1).matters before that Tribunal as proceedings or civil proceedings. Special provisionsin relation to legal aid for parties to Waitangi Tribunal proceedings are dealt with undersubpart 6 of the Legal Services Act.[117] While "civil matter" is not capable of precise definition it is arguable that it hasa wider meaning than "civil proceeding" and on a literal meaning civil proceedingsunder s 7 are a subset of civil matters. However, a number of provisions in the Act donot support that meaning.[118] A notice requirement under s 24, requires that in a "civil proceeding", whenlegal aid is granted, the provider of legal aid "must at once give notice of that fact" toevery other party to the proceeding. In practice, this would mean that legal aidproviders in proceedings other than civil proceedings would have no obligation to givesuch notice. It may be this can be justified by the fact that the notice requirement isintended to alert the other party to the fact there is a statutory bar to costs awards.Once that peril is removed there is no need to put the other side on notice.[119] "Civil proceedings" are also referred to in s 11(1), which provides that:To avoid doubt, legal aid in respect of civil proceedings is not available to anybody of persons, whether corporate or unincorporate, except as provided insections 10(1) and 47.[120] Applying the PCC's interpretation of "civil proceedings" has the effect that,apart from in "civil proceedings", bodies corporate would be entitled to legal aid.97That interpretation would allow legal aid to be claimed by those bodies (who do notfall under the ss 10(1) and 47 exceptions), in "civil matters" that are not"civil proceedings". This seems an odd situation. This could be dealt with in the caseof proceedings in a disciplinary tribunal and other listed courts and bodies under s7(1)(c) of the LSA, as the Commissioner has a discretion as to the grant of aid andmay take into account the applicant's personal interests in the proceedings.98However, that approach does not bar bodies, including corporates, from obtaininglegal aid.97 There are exceptions: Section 10(1) allows "a natural person" and a "trustee corporation in arepresentative, fiduciary or official capacity" to apply for legal aid.98 Legal Services Act 2011, s 7(1)(c).[121] If legal aid was granted under the previous Legal Services Act 1991 in respectof civil proceedings but the proceedings were not completed, then the Commissioneris able to require a further contribution under the present Act from the applicant as ifthe applicant were a request for contribution under the 1991 Act.99 Therefore,the Commissioner could not require such a contribution in respect of othercivil matters that were not civil proceedings. This outcome would support a moreexpansive meaning of the words "civil proceedings".[122] Both the High Court Rules and the District Court Rules define"civil proceedings" in relation to the Crown by reference to theCrown Proceedings Act 1950 which defines civil proceedings as:100 any proceedings in any court other than criminal proceedings; but does notinclude proceedings in relation to habeas corpus, mandamus, prohibition orcertiorari or proceedings by way of an application for review under theJudicial Review Procedure Act 2016 to the extent that any relief sought in theapplication is in the nature of mandamus, prohibition, or certiorari[123] "Civil" in the High Court Rules means "not criminal". "Proceeding" under theHigh Court Rules means "any application to the court for the exercise of the civiljurisdiction of the court other than on interlocutory applications".101 Proceeding hasthe same meaning in the District Court Rules.[124] The words of s 7 and s 45 on their face support an argument that there shouldbe a difference between "civil proceedings" and "civil matters". Additionally, indisciplinary proceedings there may be some justification for requiring a practitioneror former practitioner to make a contribution toward the disciplinary machinery.The Tribunal is best placed to assess how to take into account matters such asappropriate levels of contribution based on the personal circumstances of thepractitioner. It is not constrained by the costs rules and schedules provided in therelevant District Court Rules 2014, High Court Rules 2016, or those relating to theCourt of Appeal and Supreme Court.99 Legal Services Act 1991, s 137.100 Crown Proceedings Act 1950, s 2 (Interpretation).101 High Court Rules 2016, r 1.3 (Interpretation).[125] Counsel were unable to point to any assistance in interpreting the words in thenotes to the Bill's introduction or to any debate on the issue at the time the LSA waspassed or otherwise.[126] The Legislation Act 2019 says: "The meaning of the legislation must beascertained from its text in the light of its purpose and context".102 Generally speaking,the Courts are unwilling to treat words in an Act as being surplusage.103[127] The question is whether the use of the words "civil proceedings", as opposedto the word "proceedings" in s 7 of the Legal Services Act, is as significant asMr Coates says it is. If so, this results in a legally aided party in a civil matter (not acivil proceeding) losing the protection of the barrier to costs under s 45 of the Act, aswell as the other consequences outlined above.104[128] In Laverty v Para Furnishing Ltd,105 the rationale for the immunity unders 45(2) was explained by McGrath J. He said it was to reduce the risk that a legallyaided person, if unsuccessful in the litigation, may be required to pay substantial costsdespite having limited means. The protection prevents legally aided persons beingdeterred from exercising their right of access to the courts. His Honour noted that forcircumstances to qualify as exceptional under s 45(2) and (3), they must be "quite outof the ordinary".106 The rationale so articulated would apply equally to disciplinaryproceedings. Often the legally aided person's livelihood is in jeopardy.[129] In my view the only distinction intended is between civil andcriminal proceedings. In the High Court Rules and the District Court Rules thatdistinction is made. If that were not made clear in the Legal Services Act, then itwould be possible to interpret s 7 as defining all proceedings in the general courts as"civil matters" because of the chapeau containing the words "civil matters" in s 7(1).That explains the use of the words "civil proceedings" with reference to the102 Legislation Act 2019, s 10(1).103 Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington2021) at 424.104 See above at [113].105 Laverty v Para Furnishing Ltd [2006] 1 NZLR 650 (CA) ["Laverty v Para Furnishing Ltd"] at[19] and [20].106 At [31]; citing Awa v Independent News Auckland Ltd (No 2) [1996] 2 NZLR 184 (HC) at 186.general courts. It is difficult otherwise to discern the reason for difference in thecontext between "civil proceedings" and "proceedings" in general terms for"civil matters".[130] The issue then becomes whether or not the "proceedings" in an"administrative tribunal or judicial authority"107 are "civil proceedings" for thepurposes of the Legal Services Act.[131] The Supreme Court has firmly rejected the argument thatdisciplinary proceedings are criminal proceedings. As Mr Coates pointed out,disciplinary proceedings are regarded as sui generis. However, that is largely basedon the requirement for the response required of a flexible civil standard of proof incases involving serious allegations.108[132] However, disciplinary proceedings are under the s 7(1) chapeau of"civil matters" in the Legal Services Act and so are deemed civil and therefore arecivil proceedings for the purposes of s 45 of the Legal Services Act given my earlierconclusion that for the purposes of the Act, proceedings that are civil matters arecivil proceedings.[133] I do not propose to cover every point raised by the PCC. However, in relationto the argument, rejected by the Tribunal, that the heading of s 101 of the HPCA underwhich costs are awarded, as well as the provision of a range of penalties, is headed"Penalties". I note that section headings at best are summaries of the contents of thesection. They are, of necessity, brief and cannot even be regarded as reliablesummaries.109 I do not consider that heading provides guidance in this case.Result[134] The Tribunal made no error in its interpretation of s 7 or s 45. The wording ofthe legislation supports the Tribunal's interpretation.107 Legal Services Act 2011, s 7(1)(e)(v).108 Z v Dental Complaints Assessment Committee, above n 82, at [97], [107], [112] and [118].109 Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington 2021) at 332.[135] The appeal is dismissed. The cross-appeal is dismissed.Costs in this appeal[136] Counsel agreed that in the ordinary course, costs of this appeal should go tothe successful party in each appeal on a 2B basis. Therefore, costs are awardedaccordingly.[137] If any other issues arise counsel should file memoranda/um within five days ofthe date of this judgment. Any response should be filed within a further three days.____________________Grice JSolicitors:Legal Services Commissioner, Auckland for the Appellant.Claro Law, Wellington for the Respondent.