Edwards v A Professional Conduct Committee

[2023] NZHC 651

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-90

[2023] NZHC 651

BETWEEN

STEFAN EDWARDS

Appellant

AND

A PROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing:	On the papers
Appearances:	M McClelland KC and H C Stuart for Appellant D La Hood for Respondents
Judgment:	28 March 2023

JUDGMENT OF LANG J

[on costs of proceeding]

This judgment was delivered by me on 28 March 2023 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

Lyon O’Neill Law, Tauranga. M McClelland KC, Wellington H C Stuart, Wellington

Luke Cunningham Clere / D La Hood / A F Oliver, Wellington

EDWARDS v A PROFESSIONAL CONDUCT COMMITTEE [2023] NZHC 651 [28 March 2023]

[1]                 My earlier judgments on this appeal have determined the issues of liability, penalty and the contribution Mr Edwards is required to make to the costs incurred by the Health Practitioners Tribunal and the Professional Conduct Committee.1 The final issue I am required to determine is the costs to be awarded in relation to the proceeding.

[2]                 I take the reader to be familiar with my earlier judgments. They inform the approach to be taken to the costs to be awarded in relation to the proceeding.

Submissions

[3]                 Both parties agree that costs should follow the event. This recognises the principle that the unsuccessful party should contribute to the costs of the successful party.2

[4]                 Counsel for Mr Edwards contend that, viewed overall, both parties enjoyed an equal measure of success. On that basis they submit costs should lie where they fall.

[5]                 Mr La Hood, counsel for the Professional Conduct Committee (PCC), challenges this approach. He contends the PCC enjoyed a far greater measure of success on the liability appeal than did Mr Edwards and that this occupied the bulk of the time spent in preparing submissions and at the oral hearing. Mr La Hood therefore says the PCC should receive an award of costs. He accepts, however, that the award should be subject to a modest reduction to reflect the level of success Mr Edwards enjoyed in relation to the appeal.

Decision

[6]                 I consider the PCC was the successful party in relation to the issue of liability because I upheld the findings of professional misconduct made by the Tribunal on both charges. Furthermore. although I found the PCC had not established some of the particulars that it relied upon, I was satisfied that the most serious aspects of the

1      Edwards v A Professional Conduct Committee [2022] NZHC 3189 (liability); Edwards v A Professional Conduct Committee [2023] NZHC 148 (penalty and contribution to costs).

2      High Court Rules 2016, r 14.2(a).

particulars had been established. I would apply a reduction of 15 per cent to reflect the level of success enjoyed by Mr Edwards on the liability appeal.

[7]                 Mr Edwards was clearly the successful party in relation to the issue of penalty because he succeeded in persuading me that the cancellation of his registration should be set aside. That was an important issue. However, Mr Edwards was not completely successful on the issue of penalty because I held it was not appropriate for him to be be permitted to recommence practise as a podiatric surgeon. Rather, his activities should be restricted to practise in general podiatry. Furthermore, I accept that the penalty aspect of the appeal occupied considerably less time and effort for counsel than that relating to liability. I would make a further allowance of ten per cent to reflect this factor.

[8]                 Mr Edwards was also the successful party in relation to the contribution that he was required to make to the costs incurred by the PCC and the Tribunal. However, this largely reflected the level of success he had enjoyed on the liability appeal. It should not result in any further reduction of costs.

[9]                 I would therefore apply a total discount of 25 per cent to reflect the overall level of success Mr Edwards has achieved. It follows that the PCC is entitled to costs on a Category 2 basis, but subject to an overall reduction of 25 per cent.

[10]              Counsel for Mr Edwards submit that costs should be calculated on a Band B basis, whilst counsel for the PCC submits that Band C is appropriate. I consider that costs should be awarded on a Band B basis for all steps taken other than preparation of submissions for the substantive hearing. Band C is to apply to the preparation of submissions given the extensive scope of the matters that counsel for the PCC was required to address.

[11]I make orders accordingly.

Lang J